Montgomery County v. National Capital Realty Corp.

Levine, J., delivered the opinion of the Court. This appeal by Montgomery County is from an order of the circuit court reversing a decision of the County Council, sitting as the District Council (the Council), which denied to appellee a zoning reclassification of a parcel of land situated on the northern periphery of the Silver Spring business district. ³⁶⁶ The subject property, consisting of 1.4 acres, is rectangular in shape and is located on Spring Street, extending the full width of the block between Georgia and First Avenues. The application sought rezoning to the C-2 classification (general commercial) from the C-0 category (commercial office building). The land had been placed in the C-0 zone by the Council in two stages, in May, 1962 and June, 1963, respectively.

The parcel had been in the R-60 zone (one-family, detached residential) since 1954, when the adoption of a new zoning ordinance and accompanying maps effected a comprehensive rezoning. Property to the north is zoned R-60, and it is plainly evident that Spring Street has always been regarded by the planning and zoning authorities as the northern boundary of the Silver Spring business district. To the west and southwest, the dominant zoning feature is C-O, while to the south, especially along the Georgia Avenue corridor, there is a well-established pattern of C-2. In this connection, however, it becomes important to note that a considerable portion of the property immediately to the south and southwest of the subject property, although zoned C-2, has, in fact, been developed as highrise residential, largely due to the demand for such housing which began in the early 1960’s and a loophole, since closed, in the C-2 classification of the zoning ordinance.

The result of this has been that while on paper there appears to have been a degree of rezoning activity to the C-2 zone (general commercial) during that period, the movement has actually been towards intensive apartment house construction coupled with a modest amount of “street-floor” retail development on Georgia Avenue. The most conspicuous example is the property immediately to the south containing 3.2 acres of land on which there have been erected 892 units known as the Georgian Towers. At the time the rezoning petition was being considered, the subject property was covered by a master plan known as the Zoning Plan for the Silver Spring Business Dis ³⁶⁷ trict and Vicinity adopted in 1957. The zoning requested here was contrary to that plan, which apparently divided the subject property between the high-rise and commercial office building categories.

At the time the application was under consideration, however, the design of a new plan was in progress. Although not yet adopted when the Council rendered its decision, throughout the period the application was being processed, the new plan was considered by the Planning Board technical staff, the hearing examiner and the Council in its “preliminary” and “draft” forms, respectively. That plan, in each of its phases, recommended high-density, residential use for the subject property. The technical staff of the Planning Board recommended denial of the application, noting that its consultants had “emphasized the fact that the area in question is considered one of the most critical areas due to its location at the northern periphery of the [Central Business Core] in close proximity to established single-family residential areas. [They] also pointed out that the Central Business Core Plan was in large part based on the premise of encouraging inward development and establishing a functional land use pattern with adequate transitions and buffers between the low-density residential land use areas [to the north] and the high intensity commercial and residential areas [to the south].” Thus, the staff concluded that “maximum development of the site under . . .

C-2 with its 143-foot height limit and 100 % ground coverage . . . would not be appropriate nor conducive to the effectuation of the described transition.” In rejecting the staff recommendation and voicing support for the application, the Planning Board was influenced almost entirely by a Declaration of Covenants which was prepared and submitted by appellee. In relevant part, the Declaration recited: “WHEREAS, the Montgomery County Zoning Ordinance does not convey the right of site plan approval in the C-2 Zone to the Board, ³⁶⁸ but Grantor is nevertheless willing to. submit the subject property to Planning Board approval in the event [the application] is granted . . . .” Attached to the Declaration as an exhibit was a “site plan” in accordance with which, it was agreed, the property would be substantially developed. The Declaration also provided: “These covenants, conditions and restrictions shall become effective upon the approval of [the zoning application], and shall have no effect unless said zoning application is approved. “Subject to the foregoing, these covenants, conditions and restrictions are to run with the land and shall be binding .... “. . . These covenants shall terminate automatically in the event the Montgomery County Zoning Ordinance is amended to provide for site plan approval by the Board in the C-2 Zone, (emphasis added) HC jfc ⁹⁹ At the hearing before the zoning examiner, appellee produced an array of experts who, in the course of their extensive and by no means unappealing testimony, which was buttressed by a number of exhibits, made the following contentions: 1.

That there had been, since the last comprehensive zoning, a considerable development of properties to the south within the C-2 zone. 2. That, largely due to the covenants, development of the property within the C-2 zone, rather than in the existing C-0 zone, would lead to a more attractive result with a setback neither required nor feasible under C-O, together with less density and ground coverage. 3. That appellee’s proposal, reflected by its site plan, would result in an office building with attractive shops at the lower level. 4. That appellee’s proposal would provide an attractive gateway to the Silver Spring business district. ³⁶⁹ 5.

That the dual-use concept of office space and retail stores would insure for the neighborhood a people-oriented vitality in the evening as well as during the day. 6. That construction in accordance with the site plan would afford adequate offstreet parking within the building that would be unobtrusive. A representative of the local citizens’ association appeared as a protestant to the application. In substance, he stated that residents of nearby homes were concerned with the likelihood of increased automobile traffic which, due to the intense high-rise development without adequate offstreet parking in the vicinity, coupled with additional parking demands generated by the office building on the next block of Spring Street, had already overtaxed neighborhood streets.

In addition, projected traffic presented a concern to parents of school children, since the Wood-side Elementary School is located only one block north of the subject property. This position was further underscored by a letter in the record from the same association which pointed out that the Georgian Towers, although containing 892 units, provided merely 344 interior parking spaces. Another prominent feature of the record before the Council were two reports which were directed to the hearing examiner by Mr. William H. Hussmann, Director of the County Office of Program Coordination, and a planner in his own right. In his first memorandum dated January 23, 1970, Mr. Hussmann recommended denial of the application, citing principally the location of the property at the northern “edge of the Silver Spring Central Business District,” and the need for a “ ‘transition between the heavy concentration of commercial uses located to the south and east and the single-family residential development to the north’ ” that had been envisioned when the subject property was placed in the C-0 zone in 1962 and 1963.

He concluded that appellee’s proposal would “attract a significant amount of automobile rather than pedestrian traffic. In character, it would ³⁷⁰ be more like a typical local shopping center than it would be a central business area development.” Mr. Hussmann later experienced a change of mind, and on February 26, 1970 wrote to the hearing examiner withdrawing his earlier recommendation of denial. The second report clearly indicated that in reversing his position, he was influenced entirely by the covenants and site plan attached thereto. However, while impressed with the proposed plans, he was not without his reservations concerning their implementation, and added: “[T]he granting of the C-2 Zone provides the opportunity for the applicant to apply for a special exception for a gas station or a drive-in restaurant.

These uses are not appropriate in this location, and if I thought that this were the intent of the applicant, I would continue to recommend denial.” In his thoroughly-considered report to the Council, the examiner noted that: “The issues to be determined in this case are whether there has been sufficient change in the character of the neighborhood to justify the requested reclassification, whether the requested reclassification is in accord and harmony with the comprehensive zoning plan for the area, and whether such reclassification is in the public interest. * * * “The only fully adopted Master Plan covering the subject property is the Zoning Plan for Silver Spring Business District and Vicinity adopted on December 9, 1957. The requested reclassification is not in conformance with the recommendations of this Plan .... Both the Preliminary Plan and the Final Draft of the Silver Spring Master Plan have recommended high-density, residential uses for the subject property within the Central Business Core. Con ³⁷¹ sequently, the requested reclassification to the C-2 Zone is not in conformance with the recommendations of the most recent comprehensive zoning plan for the area, namely the Final Draft of the Master Plan for the Silver Spring Planning Area. * * * “It is my opinion that the applicant has failed to show sufficient changes in the character of the surrounding neighborhood to justify the requested reclassification.

The only reclassification to the C-2 Zone cited by the applicant [was the granting of application C-941 in 1963. This property is] closer to the center of the Silver Spring Central Business District than is the subject property. [This property does not] confront single-family detached residences as does the subject property . . . .” In recommending denial of the application for the C-2 zone, the examiner also recognized the impermissibility of rezoning in reliance on covenants to be recorded by a zoning applicant. Aided by an opinion requested of the County Attorney, he concluded that for the Council to grant the reclassification “based wholly on the recommendations of the Planning Board and the Program Coordinator [Mr. Hussmann], which are strictly conditioned upon the acceptance of the covenants, the District Council would be rezoning conditionally. As pointed out by the County Attorney, conditional zoning is not permitted in Montgomery County.” The Council denied the application, adopting, in effect, the report of the examiner.

In so doing, it expressly stated in its opinion: “It is our opinion that the recommendations of the Planning Board and the Program Coordinator in this case are entitled to little or no weight because they are based almost in their