Polinger v. Briefs

Hammond, C. J., delivered the opinion of the Court. The Circuit Court reversed the action of the Montgomery County Council of December 15, 1964, which rezoned some twelve and one-half acres in the Cabin John area of Montgomery County, situate between MacArthur Boulevard and the George Washington Memorial Parkway and overlooking the Potomac River, from R-90, single-family residential use, to R-30, low density multi-family zone, for garden, group-home and low profile apartment buildings, allowing four times the density of the R-90 zone. The area had been comprehensively rezoned in 1957 by the adoption of the Master Plan for the Cabin John Watershed and of the Sectional Map. The acreage here involved was zoned R-90.

In 1961 the then owners of the property filed an application for rezoning to multi-family use but withdrew it alter the Technical Staff and the Planning Board recommended disapproval. In its report the Technical Staff pointed out that there had been no change in the area since the comprehensive rezoning of 1957. In 1962 the present owners, then contract purchasers, filed an application for rezoning of the property to a classification permitting high-rise apartments. The application went to hearing by the District Council which agreed with ⁵⁴⁰ the recommendations of the Technical Staff and the Planning Board and denied the application.

After reciting that it had thoroughly reviewed the voluminous evidence in the case, the Council made for the record (which was introduced in the present proceedings as an exhibit) specific findings that there had been no error in the promulgation of the comprehensive rezoning of 1957 “as to this property,” and that “there has been no-change in the character of the single-family residential development to justify the granting of this application.” An appeal was taken but was dismissed before a hearing was had. In 1964 the present application was filed. Again the Technical Staff and the Planning Board recommended disapproval, finding no mistake or change. The evidence for the applicants before the District Council came from a professional land planner whose opinion was that a mistake had been made in 1957 because the comprehensive zoning had zoned the area in accord with its very predominantly single-family use and had omitted a few scattered small commercial uses and one apartment house across MacArthur Boulevard, so as to make these uses nonconforming, with the hope that they would some day terminate.

The alleged mistake arose, he claimed, from the fact that by 1964 these nonconforming uses had not disappeared. There was no evidence whatsoever of any change in the area between 1957 and 1964. The District Council made no finding as to mistake. On-change it said: “The Council finds that there has been a sufficient