Wheaton Moose Lodge No. 1775 v. Montgomery County

Wilner, J., delivered the opinion of the Court. The Montgomery County Council (sitting as the District Council for the Maryland-Washington Regional District) rejected appellant’s 1 application to rezone certain property from R-60 (one family, detached residential) to C-3 (highway commercial). The Circuit Court for Montgomery County affirmed that decision, and appellant has appealed. Appellant states the “question presented” in this appeal as whether the action of the County Council was “arbitrary, capricious, discriminatory and confiscatory of Appellant’s rights ... by depriving it of its property without due process of law”.

It breaks this rather general issue down into three subsidiary questions: (1) whether potential traffic problems standing alone were sufficient to deny the application; (2) whether, because C-3 is a “floating” zone, appellant was required to show that all permitted uses in that zone were compatible with the surrounding neighborhood; and (3) whether there was sufficient evidence to render the conclusions of the authorities fairly debatable. We shall consider appellant’s contentions in the context of the three subsidiary questions upon the premise that the resolution of them will also resolve the broader “due process” claim. Under the Montgomery County Zoning law, a C-3 zone is a “floating”, or “non-Euclidian” zone; and a great deal of controversy in this case concerns the characteristics of and the procedural and substantive requirements for obtaining ⁴⁰³ such zoning. It may be helpful, therefore, to consider initially what a “floating” zone is and how it differs from a “Euclidian” zone. 2 “Euclidian” and “Floating”Zones The traditional zoning law divides the community into specific, territorial districts and prescribes the uses that are permitted (or not permitted) in each district.

The boundaries of these districts are fixed by law, usually by reference to a map. Thus, in comprehensive zoning, every square foot of the community is within some fixed zone and is subject to the predetermined set of land use restrictions applicable to that zone. This is “Euclidian” zoning, 3 and, until fairly recently, it was the only type of zoning that the law countenanced. 4 When the first zoning ordinances were enacted some 60 years ago, “Euclidian” zoning was a practical method of categorizing land uses in terms of their relative offensiveness to each other, and of protecting existing uses within a community from those which the law declared to be discordant and harmful to them. With the constitutional limitations placed upon “spot” zoning, however, 5 this type of fixed-district zoning suffered from a rigidity that became increasingly apparent as rural and suburban areas began to undergo extensive and rapid development in order to accommodate the outward migration following World War II.

At the same time that the exodus to the suburbs created a greater demand there for multi-family dwelling units and ⁴⁰⁴ nearby commercial and industrial enterprise necessary to provide convenient shopping and employment opportunities, more sophisticated design and planning techniques made many of these previously discordant uses more compatible with a residential setting. Careful land use planning thus made possible the location of aesthetically pleasing commercial establishments and garden-type apartment developments in close proximity to residential areas. But, under “Euclidian” zoning, the process for achieving this planned balance became quite cumbersome, especially when dealing with the planned development of rather large areas. To resolve some of the impediments arising from the inflexibility of fixed-district “Euclidian” zoning, municipal planners experimented with a number of new techniques, one of which was the concept of the “floating” zone.

This consists of a prescribed set of permissible land uses that are not attached, in advance, to any particular geographic district, but are, instead, permitted to “float” over the entire area until located upon specific property at the petition of the property owner. The Court of Appeals described the difference this way in Bigenho v. Montgomery County, 248 Md. 386, 391 (1968): 6 “A floating zone is differentiated from a so-called ‘Euclidean’ zone, in that while the latter is a specific area defined by boundaries previously determined by the zoning authority, the former has no such defined boundaries and is said to ‘float’ over the ⁴⁰⁵ entire area of the district or zone where it may eventually be established. “The floating zone is different from the establishment of an Euclidean zone in that it is initiated on the instigation of a land owner within the district rather than that of the legislative body.” Following the lead of the New York Court of Appeals in Rodgers v. Village of Tarrytown, 96 N.E.2d 731 (1951), the Maryland Court of Appeals first sustained the “floating” zone concept against an attack that it constituted illegal “spot” zoning in Huff v. Bd. of Zoning Appeals, 214 Md. 48 (1957). Without ever using the term “floating zone”, the Court considered the unlocated zone at issue before it to be “analogous to a special exception” and thus concluded, at page 62: “[T]he rules which are applicable to special exceptions would apply, not the general rules of original error or change in conditions or the character of the neighborhood, that control the propriety of rezoning. This is because, as in the case of a special exception, there has been a prior legislative determination, as part of a comprehensive plan, that the use which the administrative body permits, upon application to the particular case of the specified standards, is prima facie proper in the environment in which it is permitted.

This prior determination and the establishment of sufficient standards effectively refute the claim of improper delegation of legislative power.” This approach has been reiterated and followed by the Court of Appeals on a number of subsequent occasions. See Costello v. Sieling, 223 Md. 24 (1960); Beall v. Montgomery County, 240 Md. 77 (1965); Bujno v. Montgomery Co. Coun., 243 Md. 110 (1966); The Chatham Corp. v. Beltram, 243 Md. 138 (1966); Board v. Turf Valley, 247 Md. 556 (1967); Bigenho v. Montgomery County, supra, 248 Md. 386 . In each of these cases, the Court specifically reaffirmed the analogy to a ⁴⁰⁶ special exception. In Bigenho , for example, at page 391, it concluded that: “[T]he floating zone is subject to the same conditions that apply to safeguard the granting of special exceptions, i.e., the use must be compatible with the surrounding neighborhood, it must further the purposes of the proposed reclassification, and special precautions are to be applied to insure that there will be no discordance with existing uses.” The C-3 Zone The characteristics, and conditions, of the C-3 zone are set forth in the Montgomery County Code, §§ 59-C-4.71 through 59-C-4.77. 7 Section 4.71 describes the purpose of the C-3 zone thusly: “. . .

It is the intent of this zone to provide a method for the orderly grouping and spacing of commercial development on properties which abut or front on, and have access to, heavily travelled major highways with a planned or existing pavement of at least six lanes, or on properties which are recommended for such zoning on approved and adopted master plans or which are adjacent to properties previously or concurrently zoned C-3. This zone is intended to provide sites for commercial activities that may require large land areas and do not depend upon adjoining uses for reasons of comparison shopping and pedestrian trade; and sites for commercial facilities which are related to the traveller and highway user. At the same time, it is the intent that the frequency, design and location of points of direct access to the highway be controlled by restricting development to service road access, thereby minimizing interference with through traffic ⁴⁰⁷ movements. The fact that an application complies with all specific requirements and purposes set forth herein shall not be deemed to cr eate a presumption that the application is, in fact, compatible with surrounding land uses, and, in itself, shall not be sufficient to require the granting of any application.” Section 59-C-4.0, dealing with land uses within all the commercial zones, sets forth the permissible uses within the C-3 zone.

There are 54 such uses (plus 7 more permitted by special exception) ranging from newspaper and printing shops to a variety of automobile services (parking lots and garages, tire and parts stores, indoor and outdoor sales, repairs, car washes) to bowling alleys to drive-in banks to golf driving ranges to funeral parlors to restaurants (including drive-ins) and theatres. Gasoline stations (automobile filling stations) are permitted only by special exception. See former Code (1972), § 59-58 (C); current Code, § 59-C-4.0 (p. 1766). Sections 59-C-4.72 through 4.76 prescribe what are termed “Development Standards” for the C-3 zone.

These relate to building height, setbacks, green area, roads, and off-street parking. Section 59-C-4.77, captioned “Development Procedure” states that the procedure for site plan approval shall be as set forth in division 59 1)3. The Record in this Case On May 31, 1972, appellant filed its application for a local map amendment to the county zoning ordinance, by which it proposed to have a 20,000 square foot lot at the southwest corner of Georgia Avenue and Weisman Road reclassified from R-60 to either C-2 or C-3. The application did not specify (and was not required to specify) any particular use that was to be made of the property, and no indication was given on the application that the ultimate desired use would or might require a special exception.

In accordance with local procedure, the matter was advertised, and set for hearing on October 4, 1972. Prior to the scheduled hearing, the technical staff of the ⁴⁰⁸ Maryland-National Capital Park and Planning Commission and the county planning board submitted a report to the Hearing Examiner recommending that the application be denied for the reasons that (1) the proposed reclassification to either C-2 or C-3 would be contrary to the Kensington-Wheaton Master Plan, (2) it would jeopardize the “well-established residential character of the neighborhood”, (3) there was an insufficient change in the neighborhood to warrant the more intensive commercial development allowed under C-2 or C-3 zoning, and (4) the reclassification would not comply with the “stated and implied purpose” of the C-3 zone. No one appeared in opposition to the application at the hearing. For some unexplained reason, however, appellant asked permission to withdraw its application without prejudice.

The District Council denied this request and remanded the case back to the Hearing Examiner to conduct another hearing. Upon remand, a second hearing was scheduled, and held, but for personal reasons, appellant temporarily lost interest in the matter, and, as a result, failed to comply with the required pre-hearing procedures and did not attend the hearing. Indeed, no one representing appellant attended the hearing. The only evidence in the case, therefore, consisted of the aforementioned reports from the technical staff and the planning board; and for that reason, the Hearing Examiner recommended that the application be dismissed with prejudice.

The District Council followed that recommendation and, on February 20, 1973, dismissed the application. Pursuant to a request from appellant, however, the Council reconsidered that resolution, and that matter was once again referred back to the Hearing Examiner. The Examiner conducted another hearing (the third) on May 21, 1973, which opened with appellant’s announcement that it was withdrawing its request for C-2 zoning, and would proceed solely upon the request for C-3 zoning. One witness appeared in opposition — Alfred Blumberg, of the Maryland-National Capital Park and Planning Commission, who testified with respect to the technical staff and planning board report.

Most of Mr. Blumberg’s testimony amounted ⁴⁰⁹ merely to a reaffirmation of what was contained in the staff report (which was admitted into evidence), although he acknowledged that (1) his fears about the difficulty of making turns to and from the northbound lane of Georgia Avenue (one of the concerns expressed in the report), arose from his personal observations rather than a formal traffic study, and (2) the conclusion in the report that commercial development of the site would jeopardize the residential character of the neighborhood related to C-2, rather than C-3 zoning. In this regard, however, he testified that many of the multitude of uses permitted under C-3 zoning would also be incompatible with the nearby residential areas, although he could not say that every such permitted use would be incompatible. 8 Following Mr. Blumberg was Harry Simms, appellant’s owner. Mr. Simms said that, based upon oral conversations with representatives of three financial institutions, he did not believe that he would be able to obtain financing for residential development of the subject property, but that he might be able to obtain financing for commercial development. He acknowledged that he had made no formal applications for residential financing, and thus had received no formal rejection; but he expressed the belief that although not impossible, it was not economically feasible to build houses on the lots.

The final witness — Mr. Bohorfoush — was a real estate manager for B P Oil Co. It was from his testimony that the record first reveals the actual proposed use of the property ⁴¹⁰ if the C-3 zoning were granted — a “gas and go” service station. Mr. Bohorfoush said that market studies made by BP indicated that this would be a good spot for a service station, in part because there were few such stations along the west side of Georgia Avenue. He acknowledged that one of the reasons for this was that there was very little commercial zoning on that side of Georgia Avenue. The hearing was then adjourned until June 20, 1973, at which time a number of additional documents were admitted into evidence, and appellant’s expert — George Bushby — testified.

One of the documents was a letter from Mr. Blumberg stating, among other things, that the site “is developable in the C-3 zone.” Another was a memorandum from the county Department of Transportation concluding, with respect to this property: “Traffic Generation of an auto service station is minimal when compared to current peak hour volumes. Operational difficulties would only be experienced in relation to northbound left turns operating without benefit of a left turn storage lane. Although a service station at this location is not likely to generate much northbound traffic it is possible that other uses permitted under C-3 zoning would. Some examples are: a) car wash b) drive-in banks c) recreational facilities d) theaters e) etc. “Any land use that is likely to ‘back up’ traffic in the manner of the above listed uses could cause severe operational difficulties at this location.” Mr. Bushby, a land surveyor, testified that (1) he was familiar with the neighborhood, (2) he examined the property in question, and (3) he was aware of appellant’s intent to construct a gasoline station and examined the site solely with ⁴¹¹ that in mind. 9 He concluded that development of the property as a service station could be handled from an engineering point of view, if properly designed and constructed, and that “that use” would have no adverse effect on the community.

The essence of Mr. Bushby’s testimony was that a service station would be compatible with the character of the neighborhood, as he defined it, and also with the purpose of C-3 zoning. By taking into account the commercial development on the other (east) side of Georgia Avenue (a 6-lane highway divided by a median strip), Bushby concluded that C-3 zoning on this site would permit an orderly grouping and spacing — i.e., a clustering — of commercial uses, which is consistent with the intent of the C-3 zone. In answer to the Hearing Examiner’s inquiry as to whether such compatibility could be assured with respect to any other C-3 use (any use other than a service station), Mr. Bushby indicated that such a determination could be made in the context of later site-plan approval. Upon all of this, the Hearing Examiner again recommended that the District Council reject the application.

He concluded first that reclassification of this property would not be compatible with C-3 zoning. The Code language speaking of grouping and spacing of commercial development referred, ⁴¹² he thought, to development on the site itself in conjunction with those properties abutting it — not in relation to uses across such a formidable barrier as Georgia Avenue. He agreed with the technical staff report that the size and location of the subject site militated against compliance with the purpose of C-3 zoning; not only would commercial development of this property fail to minimize interference with through traffic movements, but it might encourage a string of small commercial developments along the west side of Georgia Avenue. The essence of his conclusion was that the property was too small to permit the type of clustering of commercial uses envisioned by C-3 zoning, and that a service station, in any case, was more of a “free standing” use that did not lend itself to being incorporated into other types of clustered commercial uses.

Also in connection with the issue of compatibility, the Hearing Examiner rejected Mr. Bushby’s definition of the relevant “neighborhood”. He felt that Bushby had been much too restrictive, excluding the nearby residential areas to the west and south of the property (on the west side of Georgia Avenue) but including the commercial developments on the east side of that artery. In view of the close proximity of single family dwellings, the Examiner did not believe that site-plan review would suffice to screen the effects of commercial development of this site, and thus concluded that the proposed reclassification would not be harmonious with existing and planned land uses in the surrounding area. A second basis for the Examiner’s recommendation was that the proposed reclassification would be inconsistent with the Kensington-Wheaton Master Plan.

Acknowledging that the plan was a “dated” one — it was adopted in 1959 — and that there had been many deviations from it, the Examiner noted that most of those deviations were on the east side of Georgia Avenue, and that the west side of the street had been developed in conformance with the Plan. Moreover, he observed that, based upon more recent planning guidelines adopted by the County Council (the most recent having been in 1968), the 1959 Master Plan still had vitality. Finally, although acknowledging that a service station ⁴¹³ would not likely cause significant traffic problems, the Examiner noted that the evidence (particularly the letter from the Department of Transportation) showed that other C-3 uses could cause such problems. Thus, he cautioned: “It is perhaps appropriate to once again express the caveat that the question of traffic impact should be judged not from any specific development proposed by the applicant but the nature, character and potential intensity of a reasonable cross section of development which would be permitted under the C-3 Zone.

To do otherwise may well place an unwarranted aura of conditional zoning which is an impermissible consideration.” Upon this basis — i.e., considering a “cross section” of the possible uses permitted in a C-3 zone and not just a service station — he concluded that such zoning, with its “myriad of vehicular oriented business uses” would not be in the public interest. The Hearing Examiner’s report was sent to the District Council which, after “reviewing the evidence of record”, agreed with his findings, conclusions, and recommendations. Specifically, by Resolution adopted November 20, 1973, the Council concluded that the reclassification would not be compatible with the “purpose clause provisions of the C-3 Zone”, or with existing and planned land uses in the area. It determined, as well, that the rezoning would not be in conformance with the Kensington-Wheaton Master Plan (noting, in that regard, that those parts of the plan pertaining to the residential character of the area west of Georgia Avenue “have, with minor exception, been effectuated and maintained”) and that it would not be in the public interest “due to potential problems of traffic safety and congestion.” Appellant challenged each of these findings — incompatibility with the purpose of C-3 zoning, with the neighborhood, and with the Master Plan and the potential traffic problems — in its appeal to the Circuit Court.

Upon a plethora of pleadings and after a hearing in open court, the court concluded that the matter should be remanded “for ⁴¹⁴ further evidence in connection with the traffic study that was conducted”, noting that the evidence “in this regard is confusing, conflicting, and inclusive [sic, inconclusive]”. As a result, it stated: “Based upon this record, the Court cannot conclude, as did the County Council, that the requested reclassification would not be in the public interest because of potential traffic safety problems. Having concluded as we have, it is not necessary that the Court consider the other contentions raised by the Appellant in this Appeal. ” (Emphasis supplied.) The case thus wound up, once again, before the Hearing Examiner, who conducted what amounted to the fourth hearing — the second at which testimony was taken. Two witnesses testified — Stephen Lawlor, a Senior Transportation Planner with the Maryland-National Capital Park and Planning Commission, and Stephen Petersen, a traffic planning engineering consultant.

Lawlor identified, and supported, a written report prepared by him on behalf of the Commission which recommended denial of the application because: (1) The C-3 zoning would permit “certain high trip generating uses, such as a drive-in bank, a carwash, a drive-in restaurant, a theater, et cetera” and that “[t]rip volume activities of this type would be highly undesirable at this location”; (2) The lack of a northbound left turn storage lane at the intersection coupled with the presence of a “high trip generating activity” would “significantly reduce the northbound Georgia Avenue traffic flow capacity”; and (3) The proximity of the Weisman and Shorefield Road intersections, the lack of signalized control at Weisman