Prince George's County v. M & B Construction Corp.

Barnes, J., delivered the opinion of the Court. This appeal is concerned with the validity of Resolution No. 244, enacted on May 19, 1970, by the County Commissioners for Prince George’s County, sitting as a District Council (Resolution 244). This Resolution authorized cluster development in certain zones within that portion of the Maryland-Washington Regional District situated in Prince George’s County. Although some six issues are presented to us by the appellants, substantially all of them revolve around the basic question whether the provisions in Resolution 244, providing for approval by the Maryland-National Capital Park and Planning Commission (Planning Commission) of a “subdivision plat” indicating cluster development in accordance with Resolution 244, were within the ambit of the subdivision powers of the Planning Commission or were, as the appellants contend, an invalid delegation of the zoning powers of the District Council.

The Circuit Court for Prince George’s County (McCullough, J.) sustained the validity of Resolution 244. In accordance with the oral opinion of the lower court rendered on March 16, 1972, that court on March 20, 1972, passed an order declaring Resolution 244 to be constitutional and valid, overruling demurrers to the petition of M & B Construction Corporation, the owner of the property in question and one of the appellees (M & B), denying the County’s motion for summary judgment, and granting M & B a writ of mandamus directing the County ³⁴¹ to issue forthwith the building permits for the cluster development. A timely appeal was taken to this Court from the order of March 20, 1972. We have concluded that the lower court ruled properly and we will affirm the order of March 20.

The record is a substantial one, but the relevant facts are not in dispute. M & B acquired title to the subject property by a deed dated November 20, 1970. It consists of 3.9305 acres of land, zoned R-55 (One-family, Detached Residential), in the Landover area of Prince George’s County. It is approximately one-half mile south of Annapolis Road (Route 450), about one mile north of Landover Road (Route 202), and approximately two miles west of the John Hanson Highway (Route 50).

It is basically rectangular in shape with irregular north and south lines. It has a frontage of 343.12 feet on the west side of Warner Avenue and is approximately 600 feet deep. Its southern boundary is between approximately 68 to 106 feet from the north side of Darby Road. To the north of the subject property is the Cherry Hill apartment development.

Across Warner Avenue, to the east, is a public school and a park. The southern boundary of the subject property adjoins the northern boundary lines of the individual appellants, Bishop, et al., whose single-family, detached homes front on Darby Road. The subject property adjoins the western side of single-family homes fronting on Cooper Drive to the west. The neighborhood of the subject property is predominantly residential in character and has been developed with single-family, detached homes selling, at the time of the hearing before the Planning Board on December 23, 1970, at approximately $24,700.

The comprehensive zoning map, adopted in 1949, as well as the 1960 master guide plan for the area, placed the subject property and its surrounding area in the single-family, detached zone. Prior owners of the subject property had sought to have it rezoned from R-55 to R-18 (Multiple-family, Medium-density Residential) once in May 1963 and again in July 1966. In both instances, the Technical Staff of ³⁴² the Planning Commission recommended disapproval; the Planning Commission recommended approval; but the District Council denied the requested rezoning in May 1964 and June 1967, respectively. As we have indicated, the District Council, on May 19, 1970, adopted Resolution 244 enacting certain amendments to the zoning ordinance and subdivision regulations applicable to the Maryland-Washington Regional District in Prince George’s County, authorizing the Planning Board to approve cluster subdivisions, pursuant to the provisions of Resolution 244.

The amendments were applicable to the R-R, R-80, R-55 and R-T zones to permit clustering development as a principal permitted use in those residential zones. Provision was made for a reduction in lot size in each of the zones mentioned from the conventional lot size to a smaller one; but the lots were to be no less than an established minimum square footage. The construction of town houses was permitted in each of the zones under cluster development; and each town house was required to have a square footage of not less than an established minimum, usually 1,500 square feet. Section 27 of the zoning ordinance was amended by adding a new Section 27.9 to establish criteria and guidelines to be followed by the Planning Board in approving a cluster subdivision.

Section 27.91 sets out the purpose of the amendatory legislation, as follows: “The purpose of cluster development is to permit a procedure for development which will result in improved living and working environments; which will promote more economic subdivision layout; which will encourage a variety of types of residential dwellings; which will encourage ingenuity and originality in total subdivision and individual site design; and which can preserve open space to serve recreational, scenic, and public service purposes and other purposes related thereto without altering, exist ³⁴³ ing densities or building bulk for the net tract area.” (Emphasis supplied.) Then follow four provisions to “achieve these goals,” “(a) Variations in lot areas and building dimensions are permitted. “ (b) A greater variety of building types is permitted in residential zones. “(c) Procedures are established to assure adequate maintenance and restricted use of open space areas for the benefit of the inhabitants of the subdivisions or for dedication to public use. “(d) Procedures are established to assure adequate protection of existing and potential developments adjoining the proposed planned unit and cluster development.” Section 27.92 provides that all types of attached and detached single-family residential buildings may be permitted in cluster developments; and Section 27.93 states that cluster developments shall consist of at least 16 dwelling units unless the Planning Board finds that they are a logical extension of an existing or approved cluster development, in which event, the cluster development may contain fewer dwelling units. Section 27.94 requires that: “No cluster development may be constructed except in accord with a Preliminary Subdivision Plan approved by the Prince George’s County Planning Board under the Regulations for the Subdivision of land.” (Emphasis supplied.) Modification of yard, building dimensions and lot area requirements are provided for in Section 27.95 as shown on an approved Preliminary Subdivision Plan. ³⁴⁴ Sections 27.96, 27.97 and 27.98 relate to cluster open space requirements. They provide that the conventional lot size may be reduced to a specified lot size in the cluster development, but that the lot size reductions shall be compensated for by an equivalent amount of open space in the net tract area. Cluster open space shall be made available for the use of all residents of the County unless the Planning Board “finds that the size, location, type of development, or cost of development or maintenance of such cluster open space, or the availability of public open space, would make public use undesirable or unnecessary.

The Planning Board generally will require dedication of all areas indicated for acquisition in the adopted Park Acquisition Program.” If not dedicated to public use, the cluster open space shall be protected by legal arrangements, satisfactory to the Planning Board, to insure “its maintenance and preservation for whatever purpose it is intended.” Some details of the “legal arrangements,” such as covenants and the like, are then given, followed by a provision for “any other specifications deemed necessary by the Planning Board.” One-third of the area of cluster open space located in a flood plain shall qualify and all other cluster open space shall qualify as net tract area. Section 27.99 sets forth provisions in regard to a Preliminary Subdivision Plan, as follows: “An approved Preliminary Subdivision Plan for a cluster development shall provide for a total environment better than that which could be achieved under standard regulations. If, in the opinion of the Planning Board, the proposed plan could be improved in respect to the criteria listed below, by the reasonable modification of the location of cluster open space or buildings, or configuration of lots, the proposed plan shall be so modified or denied. In acting on a proposed plan the Planning Board shall give particular consideration to the following criteria: ³⁴⁵ “(a) The usability of cluster open space for a recreational, public service or scenic purpose.

Usability shall be judged in terms of size, shape, location ancT topography of the space. Space designed for a recreational or public service purpose should be easily accessible to pedestrians. Space designed for a scenic purpose should be visible from a significant number of buildings or a significant length of street right-of-way, and should be designed to include irreplaceable natural features located in the tract (such as, but not limited to, stream beds, significant stands of trees, rock outcroppings). “(b) The relationship of individual buildings and lots to the total environment. Buildings and lots whose locations and dimensions vary from the standard requirements of the applicable zone should be arranged and situated to minimize alteration of the natural terrain, to avoid adverse effects of shadows, noise and traffic on the occupants of the building and surrounding properties, to improve the view from and the view of buildings, to lessen the land area devoted to vehicular access, and to encourage diversity in design.” Section 27.99A provides for an appeal.

This section states: “Planning Board action on a cluster development may be appealed to the District Council by the applicant or by any owner of property adjacent to the subject property or adjacent to any contiguous property owned by or under contract sale to the owner of the subject property. ³⁴⁶ The appeal shall be filed with the Clerk to the Board of County Commissioners within ten (10) days following notice of action on the cluster proposal by the Planning Board to all parties of record at the hearing thereon.” (Emphasis supplied.) Resolution 244 also amended the subdivision regulations by. providing for certain definitions for “Total Tract Area,” “Net Tract Area” and “Cluster Open Space.” Provision was also made for the filing and processing of Preliminary Subdivision Plans and included a requirement that stamped envelopes addressed to the owners of land adjacent to the subject property and any contiguous land owned or under contract of purchase by the owner of the subject property be included with the Preliminary Subdivision Plan. Preliminary Subdivision Plans for planned unit and cluster developments may be filed in the first and last seven calendar days of the month. The provision for a public hearing was, as follows: “The Planning Board shall notify all owners of properties adjacent to the subject tract or adjacent to contiguous lands owned by or under purchase contract to the owner of the subject tract, that a cluster proposal has been filed, and shall identify the location of the subject proposal. Owners of adjacent properties shall be informed that a public hearing on the question of whether or not the proposed cluster development would adversely affect properties adjacent to it will be held, if such request is made by the owners of any adjacent property within thirty (30) days of the mailing of the letter informing the recipient of a cluster proposal.

If such public hearing is held, all persons notified of the cluster proposal shall be notified by certified mail of the time and place of the public hearing not less than ten (10). days prior to the public hearing. In the case of substantial change to the ³⁴⁷ cluster proposal in relation to the general location of residential lots, open space, or traffic access and egress points after the hearing, adjacent property owners shall be notified of the change and the proposal shall be available for inspection at the Prince George’s County Planning Office.” Resolution 244 provided that an approved preliminary plan for a cluster development shall be the site plan for the development of the subject property; that any lots in the cluster development shall comply with the minimum lot size and average lot size requirements in the applicable zone; that all public roads, sidewalks, curbs, gutters and storm drainage facilities comply with applicable laws and regulations; that no town house lots shall be located within 50 feet of the boundary line of a property in an R-R, R-80, or R-55 zone which has not been approved as a planned unit and cluster development; that all dwellings and other buildings in the cluster development must be served with public sewer and water mains; and, that a signed statement of conveyance of cluster open space to the appropriate public agency or cooperative association be placed on the record plat, if appropriate, the form for such statement being set out in the legislation. It was also provided, however, that the Planning Board could exempt a cluster development from the requirement of Section 3 of the subdivision regulations 1 : “. . . if the Planning Board finds that cluster development will result in greater amenity and efficiency in the use of land for the benefit of ³⁴⁸ its residents and users and those in the surrounding area, than would be possible under conventional development.” There are also provisions in regard to amendment and withdrawal of the subdivision plat for cluster development, as well as in regard to other requirements for the record plat. M & B, on October 27, 1970 (shortly prior to the date legal title to the subject property was acquired by the deed of November 20, 1970), submitted to the Planning Commission a Preliminary Subdivision Plan for cluster development of 20 town houses in four clusters.

The required notices were given and a hearing was held before the Planning Board on December 23, 1970. Richard Mangy, principal Urban Designer of the Technical Staff, testified in regard to the Technical Staff report recommending approval for the proposed cluster preliminary subdivision, subject to a revised site plan in accordance with the staff’s recommendations. This was done later and the final cluster subdivision plat was approved by the Commission and the Planning Board on May 26,1971, and was recorded on July 2, 1971, as Plat No. 3 in the Plat Book of the Land Records of Prince George’s County, Plat Book WWW 77. As finally approved, the subdivision plat shows four clusters of town houses all 75 feet deep, and all 20 feet wide, except the eight houses at each end of the respective clusters, which are 20.33 feet wide.

The easterly cluster, 24 feet from the west side of Warner Avenue, consists of six town houses; the westerly cluster contains four town houses, while the northerly and southerly clusters each have five town houses. The southerly side of the five-house cluster to the north of the residential properties facing on Darby Road is 50 feet from the northerly line of those properties; and the south wall of the four-house westerly cluster is 98 feet from those same properties. There is a 34 foot by 100.66 foot open space between the northerly and southerly clusters and a 10 foot space between the westerly and easterly clusters and the sides of the northerly and southerly clusters, ³⁴⁹ respectively. In addition to the other open spaces surrounding the clusters on the north, south and east, approximately one-half of the subject property to the west of the westerly cluster is open space.

This area has a substantial grade, is wooded and will not be disturbed by the proposed construction. The subdivision plat indicates that the westerly portion of the subject property, marked Parcel A, shall be conveyed to the Landover Estates Community Association, Inc. “for use in common by owners of all the lots in this subdivision in accordance with said Declaration of Covenants, Conditions and Restrictions” [being those dated May 10, 1971, and recorded among the Land Records of Prince George’s County in Liber 3952, folio 24, to which the plat recites the property is subject]. The final subdivision plat also contains a surveyor’s certificate and the owner’s statement of acceptance and dedication of the street for public use. Mr. Mangy gave reasons for approval of the preliminary cluster subdivision plan, subject to recommended modifications, as follows: “The recommendation for approval is based in part on the following findings: (1) * * * The environment is considered to be better than that which could be achieved under regular development and this is the proposal.

This is one or probably the only scheme that could be accomplished under standard regulations. A second point is that the proposed cluster plan provides for better preservation of usable open space for the use of the residents as opposed to a standard development. “(Mr. Chairman) Mr. Mangy, you’re pointing first to Exhibit 1, showing the proposal? “(Mr. Mangy) This is correct. “(Mr. Chairman) And Exhibit 2 is showing what might be developed under the existing or regular subdivisions? “(Mr. Mangy) How the site could be developed under the standard regulations — using ³⁵⁰ standard regulations. The open space then also is readily available to the residents and a pedestrian system is indicated that links the development with the open space. The density of the development in the cluster proposal is not of a greater density than that which could be obtained under regular development.” * * * “The buildings in the cluster proposal have been arranged to avoid adverse effects of automobiles and traffic.

Specifically, by excluding automobiles from a central pedestrian court area. We also feel, the staff feels, that the proposal provides a good transition between an existing single-family detached area and an apartment. Three-story garden apartment complex to the Nbrth. The concept shown in the cluster grouping, the dwelling units around a central pedestrian court, is viewed as being a good design concept that provides an environment that would be a much better living environment than that shown under standard regulations with a street separating the houses and a finding is that there is sufficient public facilities programmed for the existing area.

Although we agree with the concept and recommend approval of this concept, the staff feels that there are several problems with the design and layout of the site plan itself, and would recommend modification of the plan in accordance with the recommendations that we make. Generally, the problems are seen by the staff as being — first of all, the parking area is viewed as being first visually detrimental because of its large mass to, first of all, the residents themselves, secondly, to persons passing by on the public street, thirdly, to a lesser degree, to the adjacent single-family detached residents to the South. One other problem is this. Season park ³⁵¹ ing is the excessive distance from the dwelling units.

Particularly, in this area of the proposal. We feel that all that parking should be provided as close and convenient as is possible for all the residents in this dwelling in keeping with any single-family development.” * * * “While we have said that the grouping of these dwelling units around the pedestrian court is a very good idea, we feel that this idea should be strengthened and could be strengthened by making this a tighter arrangement and even to the extent of eliminating the front yards and putting all of the yard area to the back of the townhouses. What we think could be created here is a series of spaces that the residents of this development could use depending on their immediate mood. The front of the units could be a very tight pedestrian court — a place for social interaction of the residents.

A place for children to play. A place that would [be] essentially secure in a psychological sense. To the rear of the units then would be a larger open private yard for each individual, for the use of each resident and his family to entertain or be by themselves. Then beyond that, a larger open public space, again, a place where you would meet other people.

This concept we would like to see accomplished by tightening up this group. Also, with respect to the townhouse units, we’d like to see some sort of variation in the placement of the units to add a little variety, I think, and a little excitement to the space when it’s created, rather than a straight line in a straight shot of dwelling units. “This in line then with our identification of what we feel are some of the problems of the site layout we’ve listed five specific recommendations for a site plan revision: (1) reducing ³⁵² the visual and physical mass of the parking area and (2) attempt to locate it closer, as close as is possible, to the majority of the dwelling units. * * * (3) Certainly provide adequate visual screening between parking and any open space any residents or any public streets which is important to the residents and to persons in the public street. (4) Develop a tighter grouping of the units to accomplish some of the things I mentioned earlier. And (5) I think we would like to see the pedestrian system, especially out in this area, take a more logical form as far as the desire or the use of the residents.

We feel that the paths meander and if you were living here and you were going to go here you would not follow the existing path system because it just is