Montgomery County v. Singer

RODOWSKY, Judge. In the continuing war of lawsuits between property developers and protesting property owners in Montgomery County, the particular battle presented here is being waged over a major retail, office and hotel project in the central business district of Silver Spring. The circuit court reversed approvals of the developer’s project plan and preliminary plan after concluding that certain features of the county’s sector plan were invalid. Because the questioned provisions of the sector plan, even if invalid, do not affect the validity of the granted approvals, we shall reverse. ⁵⁰⁵ Part of the Montgomery County planning process has focused on a sector consisting of the Silver Spring central business district (the CBD) and vicinity.

This sector plan has been in effect since at least 1975. The CBD includes the major intersection of Georgia Avenue and Colesville Road and, at Colesville Road and Wayne Avenue, the Silver Spring Station of the Washington, D.C. metropolitan area rail rapid transit system (the Metro). 1 Much of the land in the CBD is zoned for business use as CBD-2 and CBD-3. For approximately twelve years following adoption of the 1975 plan, there had not been any new residential construction in the CBD. The area had also suffered a decline in retail facilities, including loss of a department store.

On the other hand, over two million square feet of new office space had been built during that period in the CBD along the roads leading to the Metro station. In November 1987 the County Council of Montgomery County, sitting as a district council, adopted an amendment to the sector plan for the CBD. See Md.Code (1957, 1990 Repl.Vol.), Art. 28, §§ 7-108 and 8-101. Among the amendment’s objectives were “to remove outdated staging provisions related to sewage capacity limitations, to include provisions related to allocating most transportation capacity to the core area, [and] to restrict major new development to an area that best serves public policy and design guidelines____” The amendment defined the core area. 2 It embraces the Metro station and the quadrants of the Coles ⁵⁰⁶ ville Road-Georgia Avenue intersection.

Excluded from the core is that part of the CBD farthest from the Metro station. Land zoned CBD-2 and CBD-3 lies both within and without the core. The sector plan amendment also set forth certain development guidelines “[i]n order to achieve the retail and residential goals of the 1975 Sector Plan which [have] been lacking____” These development guidelines operated only during development Stage II, a period which began with the November 10,1987, approval of the amendment and expired December 31, 1989. Two of these interim development guidelines are in issue in the present case.

One in part provides that “[o]ptional method projects for non-residential development may be approved only for properties within the Stage II Core Area____” The other in part provides that “[o]ptional method projects for residential development may not have more than 12.5% of the floor area in commercial use.” Montgomery County adopted an adequate public facilities ordinance (APFO) in 1973. The APFO is in practice implemented by an annual growth policy (AGP) adopted by the County Council. A substantial factor in an AGP is the prevention or reduction of unacceptable motor vehicle traffic congestion. For the fiscal year ending June 30, 1988, performance evaluation criteria were in effect for the CBD for reviewing the adequacy of that local area’s transportation under the AGP (the LATR Guidelines).

Review for preliminary subdivision approval considers compliance with the LATR Guidelines. Over the five year period preceding May 1988, approximately 8.2 acres of land (the Silver Triangle) in the Stage II core area of the CBD had been assembled by interests which we shall call, collectively, Moore & Associates, Inc. (Moore). The Silver Triangle lies along the southeast side of Colesville Road and is bisected from northwest to southeast by Georgia Avenue. The southwest point of the Silver Triangle is across Wayne Avenue from the Metro station.

The Silver Triangle is zoned CBD-3. Under § 59-C-6.215 ⁵⁰⁷ of the Montgomery County Zoning Ordinance (the Ordinance or Ord.), properties in CBD-2 and CBD-3 zones may be developed either under the standard method or under the optional method (OMD). Under OMD “greater densities may be permitted and there are fewer specific standards [than under the standard method], but certain public facilities and amenities must be provided by the developer.” Ord. § 59-C-6.215(b). In May 1988 Moore applied to the Montgomery County Planning Board (the Board) 3 for its approval, known as project plan approval, of an OMD for the Silver Triangle.

Moore proposed to develop 2,031,113 square feet in retail, hotel, office and parking uses, including two full service department stores. The project contemplated using air rights over, and subsurface rights beneath, Georgia Avenue. The Board found that the proposal complied with the Ordinance, the sector plan, the APFO and the LATR Guidelines. In October 1988 the Board approved the project plan.

At that time the Board also approved Moore’s preliminary plan under the subdivision regulations. The instant appellees, Patricia F. Singer et al. (Appellees), thereafter brought this administrative appeal, challenging both Board approvals. The circuit court, in July 1989, reversed the Board’s approval of the project plan and, “insofar as it depends upon” the project plan, the Board’s approval of the preliminary plan. That court viewed the two development guidelines that restricted OMD uses outside of the core area to be zoning prohibitions which had not been adopted by amendment of the Ordinance and its accompanying maps so that those guidelines were invalid under the rule of West Montgomery County Citizens Ass’n v. Maryland-Nat’l Capital Park & Planning Comm’n, 309 Md. 183 , 522 A.2d 1328 (1987).

For reasons to be ⁵⁰⁸ described more fully below, the circuit court concluded that the invalidity of the development guidelines voided the Board’s approvals of the Silver Triangle project. 4 Moore and, later, the Board moved to alter or amend the judgment. By a supplemental order in November 1989 the circuit court stated that the Board’s approval of the project plan was reversed “because of the reliance ... on the 1987 Sector Plan Amendment ..., provisions] of which are, in light of applicable zoning, ineffective ... and because the rights of [the Appellees in this Court] may have been prejudiced by such reliance____” The court further “ORDERED, that in no other respect has the Court made any determination concerning the validity or invalidity of the 1987 Amendment to the Sector Plan____” Thus, the court did not invalidate the amended sector plan in its entirety. Moore, Montgomery County and the Board appealed to the Court of Special Appeals. Each appellant then separately petitioned this Court to issue the writ of certiorari.

We did so in advance of consideration of the matter by the Court of Special Appeals. 5 I Appellees have moved to dismiss the appeal as moot and have furnished supplemental material to support that motion. It is the Appellees’ position that the case has become moot, “not from the passage of time, but from the conscious and deliberate decision of all appellants to acquiesce in the Circuit Court’s decision: the County by amending the Sector Plan to eliminate the problematic provisions; Moore by seeking new approvals in place of the ones that were reversed; and the Planning Board by approving ⁵⁰⁹ those applications on the basis of the newly amended Sector Plan.” Appellees Brief at 4. It appears that in July 1989 Moore submitted new applications for project plan and preliminary plan approvals to the Board. The plans submitted were identical to those previously approved in all presently relevant aspects.

Between late October 1989 and January 26, 1990, the CBD sector plan was amended to delete the two development guidelines found to be “ineffective” by the circuit court. 6 On January 26,1990, the Board approved the project plan as conforming with the sector plan “and the recent amendment,” and the Board also approved the preliminary plan. No one appealed these approvals. In its January 1990 approval of the project plan, however, the Board added as a condition that Moore must enter into an agreement with the Board under which Moore will provide to the Board “on or before June 29,1990, acceptable documentation demonstrating a commitment by two acceptable anchor stores to be located in the retail mall.” The condition recites that the parties to the agreement “can mutually agree to extend the date by which such commitments must be provided if events related to the Board’s approval, and which are beyond the control of [Moore], so warrant.” But, “[fjailure to produce the two commitments within any time frame then agreed to shall constitute noncompliance with this condition.” In the October 1988 Board approvals there had been a requirement for documentation demonstrating the commitment of two acceptable anchor stores for the Silver Triangle project, but that requirement operated as a condition of site approval, not of OMD project plan approval. ⁵¹⁰ Representations of even later facts, made to this Court by counsel at oral argument in October 1990, reveal that the difference in the two approvals has ongoing, substantial, legal significance. It appears that Moore obtained “acceptable documentation” for one anchor tenant by June 29, 1990, and that the Board agreed to an extension of time for obtaining a second anchor tenant’s commitment.

Further, an action was brought challenging this extension of time. 7 That action was pending and undecided at the time of oral argument. Whether Moore timely will obtain “acceptable documentation” from a second anchor tenant remains to be seen. Of course, if, as Moore contends, the circuit court erred in this action by invalidating the Board’s October 1988 approvals, Moore would have at least cleared the hurdles of project plan and preliminary plan approvals. Under those circumstances the failure, if any, by Moore timely to document a second anchor tenant’s commitment would not affect the approvals already granted.

Thus, there continues to be an actual controversy. Nor has Moore acquiesced in the circuit court’s decision by applying for the approvals which were granted after the “ineffective” development guidelines were deleted from the CBD sector plan. Moore has timely appealed from the circuit court judgment and has prosecuted fully that appeal. It is simply good lawyering, and not acquiescence, for Moore to establish a backup position under the CBD sector plan as further amended.

The motion to dismiss is denied. II On the merits of this controversy the circuit court held that two of the CBD sector plan development guidelines amounted to zoning, but were not adopted by the procedure required for zoning regulations so that those ⁵¹¹ guidelines were ineffective. The objective of the