Schultze v. Montgomery County Planning Board

Sybert, J., delivered the opinion of the Court. This appeal questions the validity of a decree of the Circuit Court for Montgomery County dismissing an equity bill for an injunction filed by the appellant, George H. Schultze, against the appellee, the Montgomery County Planning Board. Appellant is the owner of lot 26 in Block 9 of Section 2 in the Bradley Hills subdivision in Montgomery County. Desiring to resubdivide his lot, in May 1960 he submitted a preliminary plan to the Montgomery County Planning Board in accordance with the Montgomery County Code (1955), Chap. 106, Subdivision Regulations, § 106-2, which required every proposed subdivision or resubdivision to be submitted to the planning board for preliminary approval.

The preliminary plan proposed to resubdivide the lot into two lots, each having a frontage on the street of 82.58 feet and each containing an area of 11,840 square feet and a width at the front building line in excess of 75 feet. The lot in question is located in an R-90 ⁷⁸ zone, in which, under the Zoning Ordinance, the minimum lot area is 9,000 square feet and the minimum width at the front building line is 75 feet. Although the proposed resubdivision would not reduce appellant’s lots below these minimum zoning standards, the planning board disapproved the preliminary-plan on the ground that the proposed lots would not be of “substantially the same character as to suitability for residential use, área, street frontage and alignment, and restrictions as other land within the existing subdivision and similarly situated lots in the locality”, as required by Sec. 106-8 (b) of the subdivision regulations of the 1955 Montgomery County Code, which was then in effect, but which became Sec. 101-9 (b) of the 1960 County Code. 1 Following the disapproval, appellant requested a reconsideration of his plan and a hearing, giving as reasons that the board had permitted similar resubdivisions within the subdivision and even within the same block, and that therefore the board’s action was arbitrary and capricious. When the board refused to reconsider its decision, appellant filed a bill of complaint in the Circuit Court praying injunctive relief against the disapproval of his plan on the grounds that Sec. 106-8 (b) was unconstitutional, or if it were found constitutional, that the action of the board was arbitrary and capricious.

Counsel for appellant and counsel for the board agreed to submit the matter to the court on an agreed statement of facts. While this statement was being prepared it was discovered that an error had been made in the information furnished the board upon its original consideration, i.e., the board’s staff had failed to report to the board the previous resubdivision of a number of lots within the very block in question. Upon discovery of the error, and while the suit was still pending, the board authorized a resubmission of the plan. This was done and the plan was approved by the board.

Thereupon, appellant proceeded to prepare and submit a final plan of the lot as resubdivided, identical with the preliminary plan. When the final plan was presented for approval, several ⁷⁹ nearby property owners requested a hearing before the planning board, which held a hearing and again reversed its position and disapproved the final plan. The parties stipulated in the injunction suit that the disapproval was for the same reasons and on the same basis upon which the board had originally disapproved the preliminary plan. The court allowed a number of the protesting property owners to intervene in the case as defendants.

Counsel for appellant and for the board entered into an agreed statement of facts. After recital of the matters above outlined, and others, it was agreed that the court would be requested first to determine whether the action of the board was arbitrary and capricious and to reserve a decision on the validity of Sec. 106-8 (b) of the subdivision regulations pending the outcome of the first issue. At the beginning of the hearing, the court agreed to do so. Some time after the hearing the court filed an opinion and decree holding that the board’s disapproval of the final plan was not arbitrary and capricious.

It also, apparently inadvertently, dismissed the plaintiff’s bill of complaint in spite of the fact that the plaintiff’s reserved issue—the validity of Sec. 106-8 (b)—remained undetermined. In this appeal from the decree the appellant contends, inter alia, that the action of the planning board in disapproving his final plan after having approved an identical preliminary plan, without the development of any new facts in the interim, constituted a mere change of mind and was therefore arbitrary and capricious conduct. In disapproving the final plan, although the resulting two lots would have been within the requirements specified by the Zoning Ordinance, the planning board held that the proposed resubdivision would not conform to the standards established by Sec. 106-8 (b) of the Subdivision Regulations (1955 County Code). As has been noted, this was the same reason advanced by the board for disapproval of the preliminary plan, later amended to approval upon the supplying of additional facts theretofore unknown to the board.

Sec. 106-8 (b) read: “Lots covered by a resubdivision plat shall be of substantially the same character as to suitability for ⁸⁰ residential use, area, street frontage and alignment, and restrictions as other land within the existing subdivision and similarly located lots in the locality (Emphasis supplied.) Inherent in a determination of this nature by the board is an examination of the character of the