Stephens v. Montgomery County Council & Willcher

Marbury, J., delivered the opinion of the Court. The applicant, Morton Willcher, made application in May 1965, to the County Council for Montgomery County, to have a 2.5214 acre tract located in Garrett Park reclassified from R-90 (one-family, detached, restricted residential) to R-T (town houses). The hearing on the application was held on July 26, 1965, and the application was granted on August 31, 1965. The appellants opposed the application before the council and subsequently appealed the decision of the council to the Circuit Court for Montgomery County, and on October 28, 1966, Judge Anderson filed a memorandum opinion and order affirming the decision of the council and this appeal followed.

The subject property was purchased by Mr. Willcher on February 6, 1964. On an 1891 subdivision plat of Garrett Park this property was designated as a “park”. In the “Master Plan for North Bethesda — Garrett Park & Vicinity”, adopted April 4, 1962, the property was classified R-60 (one-family, detached residential) and on August 4, 1964, was reclassified as R-90 by a sectional map amendment granted for 132 acres, including the subject property, on the application of the Maryland-National Capital Park and Planning Commission. At the hearing before the council, the town of Garrett Park appeared by its counsel in advocacy of the granting of the application.

The application by Mr. Willcher for the map amendment of the property the subject of this appeal was filed only ten months after this reclassification. The subject property is located north of Clermont Avenue and southwest of the Baltimore and Ohio Railroad tracks in Garrett Park, Maryland. The property is bounded on the northeast, across the B & O Railroad right-of-way, by land which is zoned R-60. Land to the south and west of the subject property is zoned R-90.

Except for one C-l (local commercial) lot, the land on the north is zoned R-90. Willcher’s property was ²⁵⁸ then unimproved. It has a small amount of frontage on Clermont Avenue which constitutes its only means of ingress and egress to a public way. There is a stream which runs through the property in a northerly direction and most of the property slopes toward this stream.

In Montgomery County there is a requirement that dwellings be set back a minimum of 160 feet from railroad tracks. Because of this requirement Mr. Willcher was unsuccessful in having a preliminary plat of subdivision for his property approved by the Maryland-National Capital Park and Planning Commission in 1964 under the then existing R-60 classification. The applicant urged before the council, as to the application here involved, that due to the size and shape of the lot, its topography, the requirement of the 160 foot setback, and the limited area of access to a public way, that the land could be utilized as R-90 property only inefficiently and with great difficulty and that it can readily be developed as R-T in a manner consistent with the present character and use of property in the surrounding neighborhood. The main thrust of the appellants’ argument is that the application for reclassification was filed less than eighteen months after the area including the subject property had been rezoned from R-60 to R-90 and that this was not permissible under Montgomery County Code (1965), Section 111-40.

The purpose of the eighteen months period of limitations is to prevent an applicant from subjecting the residents of the area to the burden of having to protest and defend against a series of repetitious applications. This purpose would not be furthered by reading the statute so as to apply the eighteen months limitation to prior applications filed by govermental agencies as was the case here. Section 111-40