Montgomery County v. Laughlin

Barnes, J., delivered the opinion of the Court. Montgomery County, the appellant in this appeal, contends that the Circuit Court for Montgomery County (Shure, J.) erred in passing its order of March 4, 1969, reversing the decision of the County Council of Montgomery County, sitting as a District Council, dated July 9, 1968, which refused the application to reclassify the 5.0084 acre tract in the Kensington area of Montgomery County on the west side of Drumm Avenue between Plyers Mill Road and Oberon Street, in the thirteenth election district, owned by the appellees, Henry P. Laughlin and Marion P. Laughlin, his wife, from the existing R-60 (One-family, detached residential) zone to the R-T (Town houses) zone. The lower court was of the opinion (1) that the issue in regard to whether or not the reclassification to the R-T zone should be granted was not ⁷²⁶ fairly debatable in that there being no legally sufficient evidence to support the District Council’s decision, it was arbitrary, unreasonable and capricious, thus denying the property owners due process of law and (2) that to deny the reclassification would result in an unconstitutional taking of the subject property without just compensation in that no reasonable use of the subject property could be made under the existing R-60 zoning. We agree with Montgomery County’s position that the lower court erred and we will reverse that court’s order of March 4, 1969.

The subject property is an irregularly shaped lot with frontage on Plyers Mill Road, Oberon Street and Drumm Avenue. The Montgomery County Hearing Examiner in describing the 5.0084 acre tract stated that it “vaguelj/ resembles a hatchet with the blunt end of the head of the hatchet on Plyers Mill Road, the cutting edge on Oberon Street and the base of the handle on Drumm Avenue.” The frontage on Plyers Mill Road is approximately 425 feet; on Oberon Street is approximately 175 feet; and on Drumm Avenue is approximately 100 feet. The subject property has been in the R-60 zone since the Comprehensive Zoning in 1954. The remaining property between the three streets and the subject tract is also in the R-60 zone and is entirely developed with single-family houses.

To the north of the subject property across Plyers Mill Road is an 11 acre tract for which the Board of Appeals of Montgomery County has granted a special exemption for the operation of a horticultural nursery. The remaining properties in every direction from the subject property are in the R-60 zone and are developed with single-family residences. The Hearing Examiner, after a visit to the site on June 10, 1968, reported to the District Council that, in his opinion, the neighborhood surrounding the subject property was a stable, single-family, residential neighborhood with homes priced in the $15,000 to $30,000 range. The owners, prior to the filing of the present application, filed an application for R-10 (Multiple-family, high- ⁷²⁷ density residential) zoning for the subject property which was refused by the District Council on September 8, 1964.

The present application (No. F-57) was filed on May 31, 1987, and requested reclassification from the existing R-60 zone to the R-30 (Multiple-family, low-density residential) zone or to the R-T zone. Inasmuch as the lower court sustained the denial of the District Council of the R-30 zoning and there is no cross appeal by the applicants from this decision, the present appeal is confined to the reversal by the lower court of the District Council’s denial of the R-T zoning. The Technical Staff of the Maryland-National Capital Park and Planning Commission (Planning Commission) issued its report on April 4, 1968, recommending denial of the R-T zoning requested by the applicants. This report pointed out that the Technical Staff had previously recommended denial of R-10 zoning for the subject property because it was completely surrounded by single-family homes and such zoning would be detrimental and inharmonious with the existing uses.

The Technical Staff concluded that the requested zoning in the present application did not conform to the adopted Kensington and Vicinity Master Plan and recommended that the request for R-T zoning be denied with permission to the applicants to withdraw their application pending the adoption of a revised Master Plan. On April 18, 1968, the Planning Commission, with two members absent, unanimously voted to recommend to the District Council that the requested R-T zoning be denied for the reasons set forth in the report of the Technical Staff and also stated that in the Planning Commission’s opinion “the proposed rezoning is not compatible with the surrounding area, and. therefore, does not fulfill the requirements of the R-T zone.” The Planning Commission also recommended that the applicants be permitted “to withdraw the application, without prejudice.” The public hearing on the application was held before the Hearing Examiner on May 10, 1968. At that hearing ⁷²⁸ the applicants submitted a site plan for the proposed R-T development. The site plan showed seven groups of town houses, six groups containing eight units and one group, four units — a total of 52 units with parking spaces for 80 automobiles with access to Oberon Street only.

The applicants produced as an expert witness, A. Morton Thomas, Jr., a land planner, who) testified that traffic would diffuse from Oberon Street in a northerly direction to Plyers Mill Road or south to Metropolitan Avetaue using various secondary residential streets in the neighborhood in such a way as to avoid congestion of the streets in the immediate vicinity of the subject property by additional automobiles generated by the 52 proposed town houses. Mr. Thomas testified that Oberon Street is a secondary residential street which had a right-of-way of 50 feet with a paved width of 26 feet. The Hearing Examiner, who, as we have indicated, made a site inspection, stated in his report that there were no sidewalks on Oberon • Street or on many of the streets in the surrounding areas and most of the homes are not provided with off-street parking. The protestants produced evidence of various property owners in the neighborhood of the subject property who testified that there were no sidewalks on Oberon Street; that automobiles parked on both sides of the street, and that these conditions made it dangerous for children walking to school; that cars going in opposite directions on Oberon Street could not pass one another because the automobiles parked on both sides of the street; and on one occasion the automobile of one of the witnesses was struck when two automobiles tried to pass each other on that street; that one witness had made traffic counts on Oberon Street and, in his opinion, the proposed R-T development would double traffic on that street; and that traffic was very heavy on Plyers Mill Road and on Drumm Avenue and that any additional traffic would be very hazardous for children walking to school.

At the hearing, the Hearing Examiner asked Mr. Thomas if it would not be wiser to have access from the ⁷²⁹ proposed development to Plyers Mill Road, which has 40 feet of paved road surface, rather than to have the access to Oberon Street which has only 26 feet of paved surface. Mr. Thomas, although pointing out that Plyers Mill Road is a primary collector street for the homes in the area and that the residents of the area would attempt to gain access to Plyers Mill Road from Oberon Street and other secondary residential streets in the area as rapidly as possible, never did state why it would not be feasible for the applicants to provide access to Plyers Mill Road. One of the witnesses for the protestants, however, testified that any entrance from the subject property to Plyers Mill Road would be dangerous in that the entrance would be obscured from on-coming traffic due to the very steep grade of the road and a turn at the base of the grade. He stated that just a few minutes prior to the hearing, there had been “a rather nasty accident between a school bus and a D.C. Transit bus on that hill.” He stated further that there were serious traffic tie-ups already existing on Plyers Mill Road, particularly in the winter season and during the rush hours.

Mr. Thomas admitted: “I am very well aware of the grade — very well aware of the steep curve coming up there.” Mr. Thomas was of the opinion that no traffic congestion would be created by the development either in the R-T or the R-30 zone, and gave his reasons. At the hearing, the applicants submitted a site plan for R-60 development which showed a maximum of 14 single-family lots which could be obtained from the subject property as contrasted with a maximum of 18 lots for single-family homes on a regularly shaped tract of the same size as the subject property without the unusual topography of the land in question. Mr. Thomas testified that the subject property is quite rough and wooded. It is traversed from east to west by a tributary of Rock Creek that flows into a large concrete flume running in a north-south direction along the western end of the property.

Mr. Thomas, however, conceded that homes had been built in Montgomery County on land ⁷³⁰ with topography comparable to that existing on the subject property. Mr. Thomas testified that, in his opinion, in order to develop 14 single-family homes on the land in question it would be necessary to obtain slope easements from adjacent property owners or if these easements could not be obtained, it would be necessary to construct a retaining wall at a cost of approximately $12,000. The applicants called as an adverse witness, Lewis Elston, Chief of the Division of Zoning and Planning Administration of the Planning Commission. Mr. Elston was examined in regard to the statement in the Technical Staff Report that: “This five-acre parcel is a remnant of the adjacent subdivided land; thus it appears to have been left in its present undeveloped, natural state because of its rough topography.

The Commission recognized its difficult terrain and indicated this property as a ‘conservation area’ on the Kensington-Wheaton Land Use Plan. A ‘conservation area’ pertains to small stream valleys not necessarily suitable for active park use but which should be kept open for drainage and conservation purposes, and can be in either public or private ownership. Since this property consists primarily of a drainage channel, it would be particularly appropriate for such use.” Mr. Elston, in explanation of this language, stated: “The conservation areas where we indicate such on master plans are intended to suggest that while possibly it may be acquired as public park, it also is possible that it will remain in private ownership. In this latter case, the plan suggests that it be used in a manner which will preserve the natural conditions around the stream in order to conserve land and water resources.” He further testified that he was of the opinion