Montgomery Cty. v. GR. COLESVILLE CITIZENS ASS'N, INC.

ROBERT M. BELL, Judge. This is an appeal from the judgment of the Circuit Court for Montgomery County, reversing the decision of the County Council for Montgomery County, sitting as the District Council for that portion of the Maryland—Washington regional district within Montgomery County (District Council), one of the appellants herein, to rezone a 22.32 acre tract of land owned by appellant DMD Development Corporation, (applicant). We glean from the four questions submitted by appellants that the critical issue on appeal may be succintly stated as whether there is substantial evidence in the record to sustain the District Council’s finding that improvements proposed to be made to a critical intersection were, at the time of rezoning, reasonably probable of fruition in the foreseeable future. We conclude that there is; therefore, we will reverse.

The appellees herein 1 proffer, “as an alternative basis for affirmance of the lower court’s judgment,” the argument that The decision of the County Council was made on the basis of evidence not of record in violation of Section 59-H-6.1 of the Zoning Ordinance and the right to due process of law guaranteed to the appellees by the Fourteenth Article of Amendment to the United States Constitution and Article 24 of the Declaration of Rights of the Maryland Constitution. This argument was presented to and specifically rejected by the lower court. See Maryland Rule 1085. Moreover, appellees did not file a cross-appeal from that judgment.

A party to a trial court proceeding may obtain direct appellate review of an adverse ruling only if that party has filed a ³⁷⁷ valid and timely order of appeal. Fennell v. G.A.C. Finance Corp., 242 Md. 209, 229 , 218 A.2d 492 (1966); Reece, Adm’r v. Reece, 239 Md. 649, 657 , 212 A.2d 468 (1965). See also Md.—Nat’l Cap. P. & P. Comm’n v. Crawford, 307 Md. 1, 37 , 511 A.2d 1079 (1986); Pearlman v. State, 226 Md. 350 , 173 A.2d 733 (1961); Riviere v. Quinlan, 210 Md. 76 , 122 A.2d 332 (1956); Maryland Rules 1010 and 1011.

Accordingly, we will not consider the argument. The project at issue is “Nottingham Woods”, a proposed residential development situated just northwest of the intersection of Randolph Road and New Hampshire Avenue in Silver Spring, Maryland. Because the tract on which the development is planned is zoned R-90 (single family residential units minimum lot size of 9,000 square feet) and applicant desired to construct 150 residential units, it sought rezoning to the PD-7 (planned development, maximum seven dwelling units per acre) zone. The rezoning application, along with the required binding development plan, was filed on May 22, 1982.

The development plan proposed the development of 115 townhouses, 15 piggyback townhouses, 20 single family detached homes, open space and play areas, and a commuter parking lot. The development plan was subsequently amended to address the issue of critical significance to the District Council—the capacity of the intersection to accomodate traffic generated by the project. The amended plan required, as “an integral portion of the development plan”, the extension, redesign and reconstruction of the Randolph Road/New Hampshire Avenue intersection, to be approved as part of the Montgomery County Capital Improvement Program (CIP) budget and to be undertaken as a developer—participation project. It is then this provision of the amended development plan, which is the major bone of contention on appeal, i.e., whether the improvements proposed by applicant and which were later made a part of the county’s CIP were reasonably certain of fruition in the foreseeable future.

The hearing examiner commented that applicant “has experienced more ups and downs than Friar Tuck”. He ³⁷⁸ undoubtedly had reference to the progress of the application for rezoning through the zoning process; at least part of the process, if not all of it, had to be traversed on three separate occasions before final approval by the District Council. Its first trip was taken in an “up” mode, gaining favorable recommendations from the Montgomery County Planning Board technical staff and, after public hearings, from the planning board and the hearing examiner. The District Council, however, remanded the application to the hearing examiner for the development of more information about the traffic capacity of the Randolph Road/New Hampshire Avenue intersection.

After further public hearings, the hearing examiner recommended that the application be denied, finding the existing intersection inadequate to handle the traffic to be generated by the project. The application thus came before the District Council for review a second time, this time in a “down” mode. It gained new life when the District Council once again remanded the application to the hearing examiner, this time “to await the development of circumstances where area road capacity can adequately and efficiently accommodate the proposed development.” Subsequent to the second remand, the applicant filed an amended development plan in which the applicant proposed major improvements “in design and construction to the Randolph Road/New Hampshire intersection.” The proposed improvements, which were incorporated as an integral part of the plan, included construction of additional lanes and relocation of median strips on both Randolph Road and New Hampshire Avenue. After reviewing the amended development plan, the technical staff once again recommended approval of the application.

Following another public hearing, the planning board did likewise, noting, however, that additional improvements, if found justified later in the process, might be required. After the hearing examiner had conducted further public hearings, but before he made his findings and recommendations, the county’s CIP for 1985-1990 was adopted by the ³⁷⁹ County Council. The applicant’s proposed improvements to the critical intersection, to be accomplished through developer participation, were included. 2 The hearing examiner extensively reviewed the history of the application and found the project to be compatible with the PD zone. He, therefore, recommended its approval of the rezoning.

Concerning capacity of the critical intersection to accommodate the traffic to be generated by the project, the hearing examiner concluded that the proposed improvements, when completed would render the intersection adequate. He further found that the improvements were reasonably probable of accomplishment within' the foreseeable future: The Examiner believes that the applicant’s evidence satisfies the reasonably imminent test for several reasons. The P-D Zones are usually strict zoning requirements that impose many design and performance specifications upon the applicant that are not present in more traditional zoning categories. The P-D Zones include a staging element and require a linkage between the staging element and the CIP.

Moreover, before any development can take place under an approved P-D Zone, the Planning Board must approve a site plan and will review extensively the impact of the proposed development on the community. Under this special category, zoning approval is only the first stage in several stages of government regulation and oversight. Further improvements may be required by the Board. The reason for the requirement that future improvements be reasonably imminent is a concern by zoning authorities and the courts that premature development could adversely impact existing or planned public facilities to the detriment of the public welfare.

Hence, the “reasonably ³⁸⁰ probable of fruition” test provides a useful measure in evaluating the issue of prematurity at the zoning stage, especially in those cases where post zoning government controls are absent. The present Development Plan not only corrolates development to the proposed improvements and the approved CIP, it absolutely requires it. The Development Plan incorporates the necessary improvements as an integral part of the plan. The Planning Board may not authorize development that fails to comply with this requirement.

This fact renders the present Development Plan a much more stringent control over premature development than any test that attempts to measure whether the improvements are “reasonably probable of fruition in the foreseeable future.” The plan makes the improvements definite, explicit, and an essential prerequisite to development. Under the “reasonably probable” test, a bad guess about future events could still lead to premature development. However, this situation cannot occur under the current Development Plan because any uncertainty has been eliminated. The Examiner concludes that the applicant has not only satisfied the burden of showing that the improvements are reasonably imminent but has, in fact, exceeded it.

The District Council agreed with the findings and conclusions of the hearing examiner and, thereupon, approved the application “subject to the specifications and requirements of the amended development plan.” Appellees appealed to the Circuit Court. In its initial Memorandum Opinion and Order, that court affirmed the decision of the District Council, finding that “the traffic issue was fairly debatable”. In response to appellees’ motion for reconsideration, however, the court filed an Amended Memorandum Opinion and Order, in which it reached the opposite result. The District Council’s decision granting the rezoning was, therefore, reversed.

This appeal followed. ³⁸¹ The PD zone is a “floating zone”. “A floating zone is differentiated from a so-called ‘Euclidean’ zone, in that while the latter is a specific area defined by boundaries previously determined by the zoning authority, the former has no such defined boundaries and is said to ‘float’ over the entire area of the district or zone where it may eventually be established.” Bigenho v. Montgomery County, 248 Md. 386, 391 , 237 A.2d 53 (1968). It is then a special use district of undetermined location, a district in which the proposed kind, location, size and form of structures must be preapproved, and which like a special exception use, is legislatively predeemed compatible with the areas in which it may thereafter be located on a particular application, provided specified standards are gratified and incompatibility is not revealed. The Chatham Corporation v. Beltram, 243 Md. 138, 150 , 220 A.2d 589 (1966). Therefore, “the vital and decisive determination by the District Council is whether the application complies with the expressed purposes for which the accomplishment of this floating zone was established.” Aubinoe v. Lewis, 250 Md. 645, 652 , 244 A.2d 879 (1968).

And “special precautions are to be applied to ensure that there will be no discordance with existing uses”. Bigenho, supra. See The Chatham Corporation, supra. Furthermore, there may be no substantial departure from the criteria applied to the establishment of a floating zone in a particular instance except by modification of the approved plan with the approval of the zoning authority, after notice and hearing.

See Wier v. Whitney Land Company, 257 Md. 600, 622 , 263 A.2d 833 (1970). In floating zone cases, as in all other zoning cases, “it is not the function of the reviewing court to zone or rezone, or to substitute its judgment for that of the zoning authority if the action of the zoning authority is based on substantial evidence and the issue is thus fairly debatable.” Northampton v. Prince George’s County, 273 Md. 93, 101 , 327 ³⁸² A.2d 774 (1974). See Anne Arundel County v. A-Pac, Ltd., 67 Md.App. 122, 126 , 506 A.2d 671 (1986); Floyd v. County Council, Prince George’s County, 55 Md.App. 246, 255 , 461 A.2d 76 (1983); Wheaton Moose Lodge v. Mo. Co., 41 Md.App. 401, 421 , 397 A.2d 250 (1979).

There is substantial evidence in the record if there is “a little more than a ‘scintilla of evidence’ ”, Floyd, 55 Md.App. at 258 , 461 A.2d 76 , and the issue is fairly debatable if “a reasoning mind could reasonably have reached the result the [District] Council reached upon a fair consideration of the fact picture painted by the entire record.” Wheaton Moose Lodge, supra. If the issue is fairly debatable, the court may not substitute its judgment for that of the administrative body. Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372 (1969); Board of County Commissioners of P.G. County v. Farr, 242 Md. 315 , 218 A.2d 923 (1966). The District Council made the express findings required by § 59-D-1.6. 3 as a condition precedent to granting the requested rezoning.

As to the finding critical to this ap ³⁸³ peal, that made pursuant to subsection (c), 4 it found that “The [applicant’s] Amended Development Plan propose[d] vehicular and pedestrian circulation systems that are safe, adequate, and efficient” and that the proposed improvement to the critical intersection, when viewed in combination with the zoning scheme and their inclusion in the county’s CIP, are reasonably probable of fruition in the foreseeable future. Although agreeing that the District Council made the necessary findings, the trial court disagreed that its decision was supported by substantial evidence in the record. Characterizing the issue as “whether a conditional mandate rule is substitutable for the reasonably imminent test as its functional equivalent or better; whether ‘will do’ is both equivalent to and substitutable for ‘practically done’ ”, and the hearing examiner’s conclusions as “providing] a novel approach to the ‘reasonably imminent’ test”, the court found: There was no evidence to support a finding that sufficient improvements were reasonably imminent to create an acceptable traffic condition that could accommodate the increased traffic to be generated. The Maryland State Roads Commission was not a party to these proceedings; there was no evidence as to when, if at all, the substantial road improvements the applicant would like to see accomplished will be both funded and then constructed by the state. “Imminent” connotes a sense of time as well as probability____ (emphasis in original) The Court then observed: However, it may be noted that a conditional mandate rule, were it to be adopted or permitted, is conceptually a far extension of the floating zone beyond its present boundaries.

The floating zone concept may have taken zoning applicants out of Euclidean repair trucks and placed them in floating zones lighter than air hovering craft (not ³⁸⁴ necessarily Goodyear since McDonald’s has come on the scene), but it still does not authorize the dropping of a presized development net over just any parcel or parcels of land. Here the net may not be dropped until all the requirements (including traffic compatibility) of the PD-7 zone are either in place or “reasonably imminent” of being in place. Permit the substitution of conditions (particularly those beyond the control of the applicant) for requirements and the net may be dropped virtually anywhere. Should this substantial change in the concept of zoning law (which rezones first and then looks to later develoment stages for protection of surrounding properties and the public generally) take place, the change should be accomplished in a manner other than by calling a duck an elephant.

As we have seen, the question squarely presented on this appeal is whether, as the trial court first recognized, the traffic issue is fairly debatable. See, e.g., Montgomery County v. Laughlin, 255 Md. 724, 734-35 , 259 A.2d 293 (1969); Tauber v. Montgomery County, 244 Md. 332, 333-37 , 223 A.2d 615 (1966); Wheaton Lodge, 41 Md.App. at 422 , 397 A.2d 250 . The applicable standard of review, however, is whether the improvements proposed to be made in the traffic system are reasonably probable of fruition in the foreseeable future. The trial court interpreted this standard as requiring the improvements to be “reasonably imminent”, 5 a more restrictive test, and, in fact, to be “practically done” if the rezoning sought was to be justified.

In so doing, the court erred. Of primary concern in the decision to rezone property to a floating zone is that the development undertaken be consistent with the master plan and promote the purposes ³⁸⁵ of the zone. Thus, whether substantial evidence exists to support the decision, either to grant or to deny the rezoning, may not be determined in isolation; rather the decision is to be reviewed in light of the zoning scheme and the record as a whole. Bigenho, 248 Md. at 396 , 237 A.2d 53 .