Rockshire Civic Ass'n v. Mayor of Rockville

Lowe, J., delivered the opinion of the Court. This controversy stems from the development during the past decade of 286.6 acres of land as a Planned Residential Unit pursuant to the zoning laws of the City of Rockville. Under the ordinance which provides for planned residential units, preliminary approval of a development is required in two stages. The first, or Exploratory Stage, requires submission of a conceptual plan for approval by the Mayor and Council of Rockville showing the location, size and arrangement of residential, non-residential and recreational uses, traffic circulation and development schedule.

Commercial uses, if not previously available, are permitted, with size limitations, only insofar as they will serve the convenience of the residents of the planned residential unit. If the Exploratory Application is approved by the Mayor and Council, the developer may seek the secondary approval by providing a Detailed Planning Application to the City Planning Commission. The Commission is charged with the responsibility of approving or disapproving the submitted documents in accordance with the objectives of the ²⁵ ordinance and within the limitations of the approval of the Exploratory Application by the Mayor and Council, Rockville Zoning Ordinance § 5-423. 1 In the case at bar, the developer filed its Exploratory Application on October 15, 1965 and, following several revisions and a public hearing, the application was approved on March 7, 1966. Of particular significance, we note here that the application which the Mayor and Council approved provided for an area of 6.0 acres to be devoted to commercial use.

In May of 1967, the Rockville Planning Commission reviewed and approved a Detailed Planning Stage Application for the community which came to be known as Rockshire. Subsequent detailed plans for particular portions of Rockshire were submitted to the Commission and approved from time to time through June of 1970. As Rockshire matured physically, it seems also to have matured in sophistication, for there developed the Rockshire Civic Association, Inc., which, along with individual property owners, became the primary protagonist here. This particular controversy developed as a result of the filing with the Commission of a Detailed Planning Stage Application for a shopping center on April 9, 1973.

The application proposed that 10.23 acres of the 20 acres still undeveloped be committed to that commercial purpose with a proposed gross floor area of 103,600 square feet. Subsequently the applicant-developer reduced that request to an area of 6.5 acres with 65,000 square feet proposed gross floor area. The Planning Commission conducted a public hearing on May 29,1974 at which substantial testimony was heard. The Commission denied the application on July 24, 1974.

Applicant appealed the denial and the Mayor and Council remanded the application to the Planning Commission for the taking of further evidence. On February 19, 1975, ²⁶ another public hearing was held by the Commission which again resulted in its disapproval of the proposed 65,000 square foot shopping center. Immediately thereafter, the applicant filed a new Detailed Planning Stage Application proposing a shopping center of 52,915 square feet, some 12,000 square feet less than previously requested in the rejected proposal. The Commission, presumably relying for its decision on the surfeit of testimony at the previous hearings and on studies which had been provided for those hearings, approved that application on June 10,1975.

The Rockshire Civic Association, Inc. and certain named residents of Rockshire appealed that administrative ruling to the Circuit Court for Montgomery County and also filed suit in the Circuit Court for Montgomery County, In Equity, against the Mayor and Council of Rockville and the City Planning Commission, as well as the applicant-developer and a shopping center contract lessee. The purpose of this equity suit was to challenge and vacate both the resolution of the Mayor and Council of Rockville approving the Exploratory Application on March 7, 1966, and the June 10, 1975 approval of the shopping center by the Rockville Planning Commission. The suit also sought to enjoin all parties from using the property subject to the suit in any manner other than for single family residential development. A demurrer to the equity suit was sustained without leave to amend and the administrative appeal was dismissed, resulting in an affirmance of the Planning Commission’s action.

The Rockshire Civic Association, Inc. and its associate parties, have appealed both decisions. The appeal to this Court from the equity action is numbered 1094 and the appeal from the dismissal of the administrative appeal is numbered 1096. We respond to both appeals in this opinion and will address them chronologically. Having fully reviewed the voluminous records in light of appellants’ briefs and arguments, our own response need be but very brief.

The issues raised on appeal are the same as those raised below. In both cases we find the comprehensive opinions of the trial judge, the Honorable John F. McAuliffe, not only to be correct but comprehensively so. We will, ²⁷ therefore, affirm in both instances by adopting as our own the opinion of Judge McAuliffe in each case. We will comment only to the extent that we believe the issues need clarification.

No. 1094. Opinion of McAuliffe, J. “Rockshire Civic Association, Inc. and seven individuals have filed a ‘petition,’ challenging the validity of the action of the Mayor and Council of the City of Rockville in approving Exploratory Application No. PRU 4 on March 7, 1966, and also challenging the validity of the action of the Planning Commission of the City of Rockville in approving Detailed Planning Application No. PRU 4-H-75 on June 10,1975. Each Defendant has filed a Demurrer, suggesting: 1. The Plaintiffs have not alleged, and under the facts of this case are unable to allege, that they were present at the public hearing which preceded the approval of Exploratory Application No. PRU 4 in 1966, or that they participated in anyway in those proceedings. 2.

That it appears from the face of the Plaintiffs’ pleading that they are barred by laches. 3. That the exclusive remedy of the Plaintiffs to challenge the recent action of the City of Rockville Planning Commission is by administrative appeal to this Court, which has previously been taken. For all of the reasons suggested by the Plaintiffs, we shall sustain each Demurrer, and prohibit amendment of the Bill of Complaint. The principal thrust of the ‘petition’ is to challenge the action of the Mayor and Council of Rockville in approving Exploratory Application No. PRU 4.

The Plaintiffs have not alleged that they were present at the public hearing, or participated ²⁸ in any way in the proceedings before the Mayor and Council of Rockville, which involved this contested action. Therefore, they have not alleged facts which would support their right to appeal or challenge such action, and the mere conclusory statement that they are ‘aggrieved’ by the action of the Mayor and Council is insufficient. It further appears from representations made at oral argument of this Demurrer that the Plaintiffs would be unable to make allegations of presence or participation in the original hearings or proceedings. The defense of laches may be made in equity by demurrer where it appears from the face of the Bill of Complaint that the bar is applicable.

Hungerford v. Hungerford, 223 Md. 316 (1960); Cargill v. Brady, 231 Md. 455 (1963); Hall v. Barlow Corp., 255 Md. 28 (1969). Since the doctrine of laches involves not only unreasonable delay but also resulting prejudice to the Defendants, each of these elements must appear on the face of the Bill of Complaint if the Demurrer is to be successful on this ground. Hall v. Barlow Corp., supra. A delay of 9-1/2 years in filing a challenge to the approval of an Exploratory Application for a Planned Residential Unit, is clearly unreasonable delay.

Furthermore, prejudice need not be shown where an action at law would be barred by limitations. Brashears v. Collison, 207 Md. 339 (1955). While no provision for direct appeal from the action of the Mayor and Council existed in the Rockville Zoning Ordinance in 1966, such provision has existed in the Zoning Ordinance for at least the last several years. Where a direct right of appeal exists, the appeal must be noted within 30 days of the action of the Mayor and Council, and thus it is clear that the delay in this case is well beyond the applicable period of limitations at law.

Under these circumstances, and considering the magnitude of the delay, a separate showing of prejudice is not required. ²⁹ Finally, as to that portion of the ‘petition’ which seeks to challenge the action of June 10, 1975 of the City of Rockville Planning Commission, it is clear that §2-104 of the Zoning and Planning Ordinance of the City of Rockville provides for a direct appeal from such actions to this Court in accordance with the Maryland Rules, Chapter 1100, Subtitle B. Under Rule Bla of the Maryland Rules of Procedure, the statutory appeal is therefore the exclusive remedy. Accordingly, it is this 8th day of October, 1975, by the Circuit Court for Montgomery County, Maryland, in Equity, ORDERED, that the Demurrers of the Defendants be and the same are hereby sustained, and amendment of the Bill of Complaint is prohibited.” Appellants’ argument on appeal is merely a restatement of the issues answered by Chancellor McAuliffe. They contended below that the allegation that they are now property owners in the vicinity of the contested area makes them “parties aggrieved” and add here that the allegation in appellees’ demurrer that appellants were not present at the 1966 public hearing “was added by appellees, and should not have been considered by the Court. .. .” This, they contend, is the meaning of Walker v. D’Alesandro, 212 Md. 163 , when it says that a demurrer “ . . . cannot either contradict facts . . . alleged or add others.. . .” Appellants misinterpret their role in the case vis-a-vis that of appellees. It was appellants’ responsibility to allege legally sufficient facts to: “ . . . show an interest in the subject of the suit, or a right to the thing demanded, and proper title to institute the suit concerning it; and if such interest or right to sue be not fully shown by the bill itself, ³⁰ the defendant may demur.” Sellman v. Sellman, 63 Md. 520, 522 .

Appellees did not “add” the allegation that appellants had not attended the 1966 hearing; they simply pointed out the absence of that allegation in the “Petition.” Appellants also reargue that laches should not operate as a bar, citing cases where laches was not á bar to an equity action although a long period of time had elapsed. However, as pointed out by appellants themselves, laches must be determined by the facts and circumstances in each case. “The devolution of time, alone, does not constitute laches; it is but one of the many circumstances from which a determination of what constitutes an unreasonable and unjustifiable delay may be made.” Parker v. Board of Elec. Sup., 230 Md. 126, 130 . A delay of nine years in contesting the action of the Mayor and Council in approving a community which has been developed and grown to substantial completion is clearly unreasonable and unjustifiable.

No. 1096. The opinion of Judge McAuliffe in this case we also adopt. It is as follows: “This is an appeal from the action of the City of Rockville Planning Commission dated June 10, 1975, approving Detailed Planned Residential Unit Application No. PRU 4-H-75. Neither the original Appellee nor any subsequently intervening Appellee has challenged the standing of Rockshire Civic Association, Inc., and in any event it appears that other individual Appellants are aggrieved persons, and have standing to maintain this appeal.

It appears from the record that on October 15, ³¹ 1965, the owners of 286.6 acres of land in the City of Rockville filed an application with the Mayor and Council of Rockville to develop said land under the Planned Residential Unit provisions of the City’s Zoning Ordinance. In accordance with that ordinance, the initial filing was denominated an ‘exploratory application.’ This application then became known as Application No. PRU 4, and subsequent detailed planning applications became a part of the basic file, receiving additional letter and year designations. Thus, the case directly involved in this appeal became known as PRU 4-H-75. Following public hearing, the Mayor and Council of Rockville approved the exploratory stage of PRU 4 by passage of Resolution No. 21-66, on March 7, 1966.

Pertaining to the proposed commercial development, the Resolution stated as follows: ‘The town center shall be constructed as a unit, based upon the findings of a Market Analysis as to its total floor area, provided that such findings shall be subject to the review and judgment of the Planning Commission as to the finally approved area to be constructed, and subject to the finding of the Planning Commission as to the existence of an adequate market for the center. . ..’ Following completion of most of the residential units permitted by the plan, the applicant on April 9, 1973, filed Detailed Planning Application PRU 4-G-73, proposing the construction of a shopping facility containing 103,600 square feet of gross floor area. This application was subsequently modified to reduce the proposed gross floor area of the shopping center to 65,000 square feet, but to no avail, for the application was denied by the Planning Commission on July 24, 1974. At that time, the Commission affirmatively stated that based upon evidence of record, it believed the ³² shopping center should not exceed 37,900 square feet of gross floor area. An appeal from this denial was taken to the Mayor and City Council, and the matter was ultimately remanded to the Planning Commission for further consideration.

Additional market study data was received and the matter was reconsidered, but again denied on April 9,1975. On April 28, 1975, the applicant filed Detailed Planning Application No. PRU 4-H-75, requesting approval of a shopping center containing 52,915 square feet of gross floor area, on a tract comprising 5.77 acres of land. On June 10, 1975 this application was approved by the Commission, and this appeal results from that action. We shall discuss separately the several contentions raised by Appellants, although not necessarily in the order presented by Appellants.

I. Does the amount of land approved for commercial use exceed that originally authorized by the Mayor and Council of Rockville, and if so, does this constitute a substantial deviation? Appellants contend the exploratory application sought designation of 5 acres of land for commercial use, and that the action of the Mayor and Council in approving the exploratory application was therefore limited to approval of 5 acres of land for such use. Appellants refer to a memorandum of December 6,1965 from William H. Hussmann, Jr., Director of Planning for the City of Rockville, addressed to the Mayor and Council, as support for their contention that the application as originally filed sought only 5 acres of commercial use. At page one of this ten page memorandum, Director Hussmann set forth a table of comparisons between the proposed plan and the ‘Woodley Gardens Plan’ with which the Mayor and Council were then familiar.

In making this comparison, Mr. ³³ Hussmann noted that the ‘local commercial’ requested by the application in the instant case was 5 acres. We have reviewed the original record, and we find this communication of Mr. Hussmann to have been in error. Indeed, the original application and supporting documents make it clear that the request was for 6 acres of commercial land use. It is difficult to see how applicant’s attorney could have made the extent of this portion of the application clearer.

At page two of the letter of application, the attorney for the landowner stated as follows: ‘Particular attention is invited to the proposal for development as shown in area marked ‘1’ wherein provision is made for a church, lake, six (6) acres of shopping center, and an eight (8) to ten (10) story building by the lake, proposed to contain 100 units... .’ (emphasis supplied) Appellees’ Exhibit 4 in evidence, received by the City of Rockville Planning Commission October 15, 1965, and a part of the original submittal, shows in the notes a proposed area of C-l commercial use of 6.0 acres, of the total land area of 286.6 acres. We are persuaded from an examination of the record that the exploratory application sought approval for 6 acres of commercial land use, and that the subsequent approval of the application granted 6 acres of commercial use. Although Appellants have suggested that in approving PRU 4-H-75 the Planning Commission has approved the use of 6.5 acres for commercial use, it appears in fact that only 5.77 acres are included in this approval. Since we conclude that the approval of the Planning Commission is within the land area initially approved by the Mayor and Council, we need not consider the question of substantial deviation. ³⁴ II.

Whether the Mayor and Council improperly delegated zoning authority to the Planning Commission. Appellants, while recognizing the special character of a Planned Residential Unit, and the ‘special exception’ nature of all proceedings subsequent to the approval of the exploratory application, nevertheless challenge the extent of the authority vested in the Rockville Planning Commission as it related to commercial development. We think Appellants misconceive the effect of the action originally taken by the Mayor and Council, in approving the exploratory application. We view the action of the Mayor and Council as a legislative determination, after notice and public hearing, that 6 acres of the subject property, in an area specifically located, would be reserved for local commercial utilization.

We further find that the Mayor and Council did not thereafter delegate to the City Planning Commission any authority to alter this decision as to the location and total area of land designated for future commercial use. Recognizing, however, that the development of this portion of the planned unit would necessarily occur some years later, and no doubt wishing to insure the construction of facilities which would be commercially viable and otherwise consistent with Planned Residential Unit objectives, the Mayor and Council imposed limitations on the construction of the town center. Thus, under the terms of Resolution No. 21-66, the town center could be constructed only as a unit, based upon findings of a market analysis as to its total floor area, with such market analysis subject to the review and judgment of the Planning Commission as to the finally approved area to be constructed, and subject to the findings of the Planning Commission as to the existence of an adequate market for the center. We do not view ³⁵ these specific limitations as an improper delegation of zoning authority, but rather we view them as consistent with the special exception nature of the planned unit