Petition — Funger v. Montgomery County

Supreme Court brief1978

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

“We -834

MORTON FUNGER

HERMEN GREENBERG

ALBERT H. SMALL

RALPH OCHSMAN

SAMUEL P. COHEN

Petitioners,

MONTGOMERY COUNTY, MARYLAND, et ai,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

NorMAN M. GLASGOW

joun F. McCase, jx.

Of Counsel: Suite 1407 - Unibank Building

Suite 1407 - Unibank Building ®ockville, Maryland 20850

51 Monroe Street Attorneys for Petitioners.

Rockville, Maryland 20850

Watengion, OC. - THIEL PRESS - (202) 638-452!

(1)

TABLE OF CONTENTS

TABLE OF CITATIONS ....cccccccccccccsccens

OPINIONS BELOW ...ccccccccsccccccccccccess

IRS adn” 2h ede oe iy Sng

QUESTION PRESENTED. ..... 22 ccccccccccces

CONSTITUTIONAL PROVISIONS AND STATUTES ...

A. Constitutional Provisions ............++++-.

B. ee eae eee ee ee eee

Pe odes weweeues PEP PEP Teper

The October 1970 Bethesda-Chevy Chase Master Plan

September 4, 1973 Adoption of New CBD Zone

pO Pe ee ae a eae

The June 1974 Sector Plan and the May 28, 1974

CBD Boundary Amendment ............2252+06.

1974 County Council Work Sessions .............

The Sectional Map Amendment.............-.+.++-

Judicial Review ..ccccccccccccccccccccccccs

REASONS FOR GRANTING THE WRIT ...........

i “(as PTT TTT TTT EET TTETE LETTE

Reasons for Granting the Writ ..........-+-+-+6-

i FO REP PPUTTETEEELTITTTITTL IT

APPENDIX A — Opinion of the Court of Appeals of

Maryland, filed July 15, 1977

APPENDIX B — Opinion of the Circuit Court for

Montgomery County, Maryland,

filed July 15, 1976

APPENDIX C — Relevant sections of the Montgomery

County Code, 1972 Edition, as amended

(1)

TABLE OF CITATIONS Page

Cases:

Aspen Hill Venture v. Montgomery County Council,

265 Md. 303, 289 A.2d 303 (1972) .......---20e- 10

Board of County Commissioners v. Oak Hill Farms, Inc.,

232 Md. 274, 192 A.2d 76] (1963) ..........224-- 10

City of Eastlake v. Forest City Enterprises, Inc., 426

U.S. 668, 49 L. Ed. 2d 132 (1976)

epere re TTT err 2, 9, 11, 13, 14, 15, 16, 17

Greene v. McElroy, 360 U.S. 474, 3 L. Ed. 2d 1377

|. BPP PPrrrrrrerereerrrrreriecrrie ee 20, 21

Hadacheck v. Sebastian, 239 U.S. 394, 60 L. Ed. 348

| SPP rr rr rrrrrrereerrrerly sce st te 17

In re County Council for Montgomery County, Maryland:

Application No. F-947, for Amendment to the Zoning

Ordinance Map, County Council for Montgomery County,

Maryland, Sitting as the District Council for that Portion

of the Maryland-Washington Regional District Lovated

Within Montgomery County, Law Nos. 40639, 40661,

40663, 40665, 40666, 40667, 40668, 40669, 40670,

40676 (Cir. Ct. Montgomery County, Md., July 15,

WPT ETTTETTirererererrererrrerierreee 2, 22, 23

Joint Anti-Fascist Refugee Committee v. McGrath,

$41 U.S. 123, 95 L. Ed. 817 (1951) ..... beeesesens 18

Montgomery County, Maryland v. Woodward & Lothrop,

Inc., ___ Md. —__.,, 376 A.2d 483 (1977)

seeedeces 1, 2, 4, 5, 6, 8, 9, 10, 11, 15, 19

Moore v. City of East Cleveland, Ohio, _. U.S. — __ ,

52 L. Ed. 2d 581 (1977) ... 2 cece gccccccess 13, 18, 19

Nectow v. City of Cambridge, 277 U.S. 183, 72 L. Ed

| APT TTTTerrrrrrrrirliT Tee 13

Pennsylvania Coal Company v. Mahon, 260 U.S. 393,

G7 L. Bd. SRB (IGRR .n cc cc cccccccccccccccsess 23

Village of Belle Terre v. Boreas, 416 U.S. 1, 39 L. Ed.

ff TT TrTTrTrTTrTee Lee 13

Village of Euclid v. Ambler Realty Company, 272 U.S.

$65, 71 L. Ed. 308 (1926) .......-- eee eeeees 12, 22

(iii)

Cases, continued: Page

Young v. American Mini Theatres, Inc., 427 U.S. 50,

GD © BG, BE SRD GRRE cc cc ccc cece es ceseevcs 13, 17

Zahn v. Board of Public Works, 274 U.S. 325, 71 L. Ed.

k,n ee ee 13

Constitutional Provisions, Statutes and Miscellaneous:

Montgomery County, Maryland, Code (1972),

as amended through October 28, 1975

eT TOTTI TUTET TIE TLE 3

Montgomery County, Maryland, Zoning Ordinance of the

Maryland-Washington Regional District in Montgomery

County, reprinted from the Montgomery County Code

|, OP Tree LereLererireree 5

Resolution 7-1849, County Council for Montgomery County,

Maryland (july 16, 1974)... cc ccccccccesccsscces 3

FET EET ECT ET ET OT OTOL Te 2

United States Constitution

RE Dace er evesoccesecccdecescocessess 13

SEE go 66 oo 66 60 00 6400 000466608088 3, 12

REE TES ccc cece cece cece esessoceeses $3, 12

;

| IN THE

SUPREME COURT OF THE UNITED STATES

| OCTOBER TERM, 1977

| No.

MORTON FUNGER

HERMEN GREENBERG

ALBERT H. SMALL

RALPH OCHSMAN

SAMUEL P. COHEN

Petitioners,

MONTGOMERY COUNTY, MARYLAND, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

Petitioners pray that this Court issue a Writ of

Certiorari to review the Opinion and Order of the Court

of Appeals of Maryland entered in this case on July 15,

1977.

OPINIONS BELOW

The case befor: the Court of Appeals of Maryland

was captioned Montgomery County, Maryland, et al. v.

Woodward & Lothrop, Inc., et al., No. 104, September

Term, 1976. Petitioners herein were appellees —

cross-appellants before the Court of Appeals of

Maryland. This case has not yet been reported in the

Maryland Reports. It has been reported in the Atlantic

Reporter, Second Series, as Montgomery County,

Maryland v. Woodward & Lothrop, Inc., 376 A.2d 483

(Ct. App. Md. 1977) [hereinafter cited as Opinion

Below]. The Opinion of the Court of Appeals is

reproduced in Appendix A. The Opinion of the Circuit

Court for Montgomery County, Maryland entered July

15, 1976 is reproduced in Appendix B.

JURISDICTION

The Opinion of the Court of Appeals of Maryland

was filed on July 15, 1977. On September 15, 1977

Chief Justice Burger signed an order extending

Petitioners’ time in which to file this Petition to and

including December 12, 1977. Petitioners invoke the

jurisdiction of this Court under 28 U.S.C. §1257.

QUESTION PRESENTED

What is the Constitutional standard of procedural due

process to which a zoning body must adhere when it

takes “zoning action denigrating the use or depreciating

the value of land,”* that is, when it dowazones

property?

*City of Eastlake v. Forest City Enterprises; Inc., 426 U.S.

668, 679, 49 L.Ed.2d 132, 141 n. 13 (1976).

CONSTITUTIONAL PROVISIONS AND STATUTES

A. Constitutional Provisions

The Constitutional provisions involved are the

portion of the Fifth Amendment to the Constitution of

the United States which provides:

“(N]or shall any person...be deprived of life,

liberty, or property, without due process of

law... .”

and the portion of the Fourteenth Amendment to the

Constitution of the United States which provides:

“(N]or shall any State deprive any person of life,

liberty, or property, without due process of

law....”

B. Statutes

The portions of the Montgomery County Coie, 1972

Edition, as amended, involved are §59-2)4 and

§59-207. They are set forth in Appendix C.

STATEMENT OF THE CASE

Summary

On July 16, 1974, the Montgomery County Council

adopted Resolution 7-1849, which granted a sectional

map amendment implementing the Friendship Heights

Sector Plan of June 1974 (Sector Plan). By Resolution

7-1849, the Montgomery County Council downzoned

41 acres of land at Friendship Heights, Montgomery

County, Maryland. Petitioners own an unimproved

18-acre tract known as the “Bergdol Tract,” of which

approximately 3.5 acres were downzoned.

The downzoning “sharply reduced the densities and

floor areas that could be built” on Petitioners’ and

other property, Opinion Below, 376 A.2d at 481. This

reversed most zoning and planning decisions of the

previous decade for the Friendship Heights area.

The 1964 General Plan

In 1964, the Maryland-National Capital Park and

Planning Commission (Md-NCPPC), with the approval of

the Montgomery County Council, adopted a General

Plan, “On Wedges and Corridors,” for the physical

development of the Maryland-Washington Regional

District, which encompassed, with minor exceptions, all

land in Prince George’s and Montgomery Counties. The

General Plan called for the creation of five central

business districts (CBD) in Montgomery County. The

Friendship Heights CBD was one of those five central

business districts, located at the high density urbanized

base of the northwest development corridor in

Montgomery County.

The October 1970 Bethesda-Chevy Chase

Master Plan ;

The General Plan was refined by approval and

adoption of a local master plan for the 22-square mile

Bethesda-Chevy Chase Planning Area, which included

the Friendship Heights CBD, in October, 1970 (The

BCC Master Plan). The BCC Master Plan recognized that

the Friendship Heights CBD would magetize additional

office and commercial uses upon the opening of its

projected rapid rail transit station. Consequently, the

BCC Master Plan recommended further intensification

of development in the Friendship Heights” CBD,

expansion of the CBD boundaries, and development of

new ceniral business district (CBD) zones in the text of

the Montgomery County Zoning Ordinance.

The BCC Master Plan recommended that then

existing zoning be retained until new zones for the CBD

could be developed and implemented. Existing zoning

at that time was primarily high density commercial, and

some high density residential, with no density limita-

tions in either zone. Extensive development had already

taken place under existing zoning. By virtue of

applicable nonconforming use provisions (i.e., saving

provisions), the sectional map amendment affected

development on only 24 of the 41 acres downzoned.

Opinion Below, 376 A.2d at 495.

The BCC Master Plan called for preparation of a

“detailed development plan” for all developable prop-

erty within the Friendship Heights CBD. The Sector

Plan is the “detailed development plan.” Opinion

Below, 376 A.2d at 491.

September 4, 1973 Adoption of

New CBD Zone Text Amendment

After approval and adoption of the BCC Master Plan,

the Montgomery County Council and Md-NCPPC

proceeded to develop the new CBD zones and the

detailed development plan. CBD zones were adopted by

the Council on September 4, 1973 in the form of a

zoning text amendment. Those zones were significantly

more restrictive than existing zoning in the Friendship

Heights CBD, and therefore, by implication significantly

more restrictive than what had been contemplated by the

BCC Master Plan.

The June 1974 Sector Plan and the May 28,

1974 CBD Boundary Amendment

The next two actions took place simultaneously.

They were development of the Sector Plan and

adoption of a zoning text amendment (the CBD

boundary amendment) which contracted the Friendship

Heights CBD in accordance with the recommendations

of the Sector Plan. The Montgomery County Council

adopted both the Sector Plan and the CBD boundary

amendment on May 28, 1974. The CBD boundary

amendment removed Petitioners’ property from the

Friendship Heights CBD.

Public hearings were conducted on drafts of the

Sector Plan in February and March of 1973, and in

February of 1974. Opinion Below, 376 A.2d at 489-90.

Those hearings were not conducted as record hearings

for the purpose of adducing evidence required to

support the decision reached. No cross-examination was

allowed. Time limits were imposed on property owners

who appeared. ,

Hearings on the CBD boundary amendment were

included in the February 1974 hearings on the Sector

Plan. The County Council did not conduct separate

hearings on the CBD boundary amendment. Again,

these were not hearings at which evidence had to be

adduced to support adoption of the text amendment.

The Sector Plan reversed many of the essential

objectives of the BCC Master Plan. The Sector Plan

called for contraction, rather than expansion, of the

Friendship Heights Central Business District. It recom-

mended implementation by zoning map amendment of

the new, more restrictive CBD zones. Implementation

of those zones would result in sigificant downzoning of

property. This, together with contraction of the CBD,

would preclude the intensification of commercial and

office development called for in the BCC Master Plan

and permitted under the zoning then in effect.

1974 County Council Work Sessions

The County Council had deliberated on the Sector

Plan and the CBD boundary amendment at five work

sessions conducted between February and May of 1974.

The County Council and the representatives of

Md-NCPPC considered each individual developable

parcel in the Friendship Heights Central Business

District, in minute detail on a parcel by parcel basis,

and allocated permissible height, density, and use — the

essential elements of regulation by zoning.

Total permissible traffic generation was selected by

the Montgomery County Planning Board and the

County Council for each parcel in Friendship Heights.

At no time did property owners have an opportunity to

cross-examine staff members of the Planning Board who

developed traffic figures. Nor did property owners have

an opportunity to challenge allocation of density to

their property on the basis of its presumed generation

of traffic, except by rebuttal evidence at the later

sectional map amendment hearings.

The hearings on the Sectar Plan and the CBD

boundary amendment had been merely general, infor-

mation gathering, hearings, not conducted on an official

record required to support any decision reached, and

not including swearing and cross-examination of wit-

nesses. Yet the operative land use decisions were made

at the work sessions, after these hearings, and before

the hearings on the sectional map amendment.

The Sectional Map Amendment

Adoption of the sectional map amendment is the

zoning action challenged herein. It implemented the

CBD zone text amendment an@ the detailed Sector

Plan and downzoned Petitioners’ and other property.

The County Council conducted the sectional map

amendment hearings on July 8 and July 13, 1974.

Under the Montgomery County Code, 1972 Edition, as

amended, §59-207, Appendix C, these hearings must be

conducted on an official record, and any decision must

be based exclusively on the merits of the evidence of

that record. The Court of Appeals described the

proceedings as follows:

“The Council advised all property owners within

the CBD a week prior to the hearing that time

limitations would be imposed for the presentation

of oral testimony — 8 minutes for property

owners, 6 mmutes for the special taxing districts,

and less for civic associations and individuals. The

Council also announced that it would not allow

cross-examination of speakers, although it would at

the conclusion of all testimony provide time for

rebuttal by any previous speaker wishing to

challenge or correct prior statements or material.

Timely objection to this procedure was made by

the appellees |including Petitioners Funger, et al.].

Twenty-five witnesses testified at these hearings

and the entire record of the public hearings on the

preliminary and final draft sector plan was made a

part of the record. After holding a final work

session, the Council adopted Resolution 7-1849 on

July 16, 1974, granting the sectional map

amendment.” Opinion Below, 376 A.2d at 490-91

(emphasis added).

As indicated, Petitioners timely raised the procedural

question concerned here, at the hearings before the

Montgomery County Council.

The downzoning action had the following effect:

“It assigned new zoning classifications to all

properties within the CBD [as well as to

Petitioner’ property outside the CBD] which

regulated the height, area and use of permissible

development and thereby sharply reduced the

densities and floor areas that could be built.”

Opinion Below, 376 A.2d at 487 (emphasis

added).

This is “zoning action denigrating the use or

depreciating the value of land” spoken of in Eastlake v.

Forest City Enterprises, Inc., supra.

The entire record for the Sector Plan and the CBD

boundary amendment was placed into the record for the

sectional map amendment. The record on the sectional

map amendment was one which, by statute, if not by

Constitutional law, must support the decision reached.

Yet the bulk of that record consisted of the record in an

entirely different type of proceeding—a record not com-

piled on the basis that it must support the decision

reached. No confrontation or cross-examination of wit-

nesses was permitted in the course of the compilation of

either record.

Judicial Review

In accordance with applicable law, the judicial review

of the sectional map amendment was conducted as a

record appeal to the Circuit Court for Montgomery

County, exclusively on the record of proceedings on the

sectional map amendment before the County Council.

There was no trial, but rather a review solely to

determine whether the decision of the County Council

was based on the substantial evidence of record. See

Aspen Hill Venture v. Montgomery County Council,

265 Md. 303, 289 A.2d 303 (1972). See, e.g., Board of

County Commissioners v. Oak Hill Farms, Inc., 232 Md.

274, 192 A.2d 761, 764 (1963).

The Circuit Court reversed the adoption of the

sectional map amendment on the bases that cross-

examination had been improperly denied at the

sectional map amendment hearings and that time limits

imposed upon property owners were so restrictive as to

preclude them from meaningful participation in the

compilation of the record necessary to support any

decision. The Court of Appeals summarized the holding

of the Circuit Court as follows:

“In reversing the Council’s resolution granting

the sectional map amendment, the lower court

held that the Council’s refusal to permit cross-

examination at the sectional map amendment

hearings, or to afford property owners sufficient

time to present evidence, violated § § 59-204 and

59-207 of the County Code, as construed in Hyson

v. Montgomery County, 242 Md. 55, 217 A.2d

578 (1966), without regard to whether the

rezoning was local (piecemeal) or comprehensive.”’

Opinion Below, 376 A.2d at 492.

The Circuit Court held that cross-examination and

reasonable opportunity to be heard had to be provided,

even though the zoning action was comprehensive

within the meaning of Maryland law. That is, even

though the zoning action involved more than one

parcel.

“The court [the Circuit Court] ultimately nar-

rowed its holding; it said that cross-exsmination

need not be extended to the parties in all

comprehensive rezoning hearings but ‘where com-

prehensive rezoning is effected by a sectional map

amendment which adopts a sector plan and

consequently rezones property within a CBD, the

District Council must afford to the parties, upon

request, a reasonable opportunity for cross-

examination.’ ”” Opinion Below, 376 A.2d at 496.

The Court of Appeals of Maryland agreed that

Petitioners had a “right to a fair hearing in all respects”

on the sectional map amendment, Opinion Below, 376

A.2d at 497, but reversed the decision of the lower

Court, holding:

“Accordingly, we hold that there was no

constitutional or other right arising from

§ §59-204 and 59-207 to cross-examine witnesses

at the sectional map amendment hearings involved

in this case.”” Opinion Below, 376 A.2d at 498.

The Court of Appeals of Maryland relied in part

upon its interpretation of the recent holding of this

Court in Eastlake v. Forest City Enterprises, Inc. It

said:

“Indeed, in its most recent pronouncement on

the subject, the Supreme Court had indicated that

it would not constitute a deprivation of procedural

due process if no Aearing was permitted either in a

piecemeal or comprehensive rezoning action. See

Eastlake v. Forest City Enterprises, Inc., 426 U.S.

668, 96 S. Ct. 2358, 49 L.E.2d 132 (1976).

[Other citations omitted.]” Opinion Below, 376

A.2d at 498 (emphasis added).

Petitioners now ask this Court to determine for the

first time what procedural due process protections must

be afforded to a property owner whose property is

downzoned.

REASONS FOR GRANTING THE WRIT

THIS CASE RAISES AN IMPORTANT CONSTITU-

TIONAL QUESTION IN WHICH THE SUPREME COURT

HAS RECENTLY EXPRESSED AN INTEREST, BUT

WHICH IT HAS NOT HAD AN OPPORTUNITY TO AD-

DRESS BECAUSE AN APPROPRIATE CASE HAS NOT

COME BEFORE IT.

Summary

At stake in a zoning map amendment proceeding is

the Constitutionally protected mght to the full use and

enjoyment of private property. Although this Court

determined the Constitutional standards of substantive

due process applicable in such proceedings more than

50 years ago in Village of Euclid v. Ambler Realty

Company, 272 U.S. 365, 71 L.Ed. 303 (1926), it has

yet to decide the question, What is the Constitu-

tional standard of procedural due _ process

applicable in zoning map amendment proceedings, and

in particular in downzoning proceedings? This case

presents that question squarely. The procedural due

process question, just as the substantwe due process

question, arises under the Fifth and Fourteenth

Amendments to the United States Constitution. It is a

question which this Court, as the highest Court in the

land, should decide.

Reasons For Granting The Writ

Beginning with Euclid v. Ambler Realty Company,

272 U.S. 365, 71 L.Ed. 303 (1926), and thereafter, this

Court has had many opportunities to refine the

Constitutional standard of substantwe due process

which must be applied when the zoning police power is

exercised.* However, the only instance where this Court

has considered the Constitutional standards of proce-

dural due process applicable in zoning map amendment

proceedings was under the unique set of facts arising in

Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668,

49 L.Ed.2d 132 (1976). That case, distinguished from

the present one, involved an application of a property

owner for new, more liberal use rights, that is, an

“upzoning.”” 426 U.S. at 679, 49 L.E.2d at 141 n. 13.

The City Charter of the City of Eastlake required that

any proposed changes in land use agreed to by the City

Council be approved by a 55% vote im a city-wide

*See, e.g., Zahn v. Board of Public Works, 274 US. $25, 71

L.Ed. 1074 (1927) (reaffirmation of settled rule that Supreme

Court will not substitute its judgment for that of legislative body

where exercise of the police power is fairly debatable); Nectow v.

City of Cambridge, 277 US. 183, 72 L.Ed. 842 (1928)

(prohibition of landowner’s contemplated use not in furtherance

of public health, safety, convenience and general welfare); Village

of Belle Terre v. Boreas, 416 US. 1, 39 L.Ed.2d 797 (1974)

(zoning ordimance restricting land use to one family dwellings

and prohibiting occupancy of dwelling by more than two

unrelated persons was reasonable, not arbitrary, and bore rational

relationship to permissible State objective); Young 0. American

Mini Theatres, Inc., 427 U.S. 50, 49. L.Ed.2d 310 (1976) (zoning

ordimamce regulating location of movie theaters on basis of

content of them offerings did not violate Due Process Clause of

the Fourteenth Amendment on ground 0: vagueness, nor was it

imvalid as impermissible prior restraimt on free speech under First

Amendment); Moore v. City of East Cleveland, Ohio, US.

——., 52 L.Ed.2d 531 (1977) (housimg ordimance limiting

occupancy of dwelling unit to members of single family and

defining family to imclude only few categories of related

individuals violates substantive due process right of individuals to

live together as family).

referehdum. In an Opinion by Chief Justice Burger

expressing the views of six members of the Court, the

Courtsheld that the referendum rezoning decision on an

upzoning was properly reserved to the people under the

Ohio Constitution, and therefore, the requirement of a

referendum in an upzoning case was not a violation of

procedural due process.

Chief Justice Burger was careful to distinguish the

narrow applicability of the decision. He stated:

“8. By its nature, zoning ‘interferes’ signifi-

cantly with the owners’ use of property. It is

hornbook law that ‘[m]ere diminution of market

value or interference with the property owner’s

personal plans and desires relative to his property

is insufficient to invalidate a zoning ordinance or

to entitle him to a variance or rezoning.’ 8 E.

i Municipal Corporations §25.44, 111

(3d ed. 1965). There is, of course, no conten-

tion in this case that the existing zoning

classification renders respondent’s property value-

less or otherunse diminishes its value below the

value when respondent acqusred it.”” 426 U.S. at

674, 49 L.E.2d at 138 n. 8 (emphasis added).

* * *

“But no challenge of the sort contemplated in

Euclid v. Ambler Realty is before us.”” 426 U.S. at

676, 49 L.Ed.2d at 139.

> = *

“The situation presented in this case is not one

of a zoning action denigrating the use or

depreciating ihe value of land; instead, it involves

an effort to change a reasonable zoning restriction.

No existing rights are being impaired; new use

rights are being sought from the City Council.

Thus, this case imvolves an owner’s seeking

approval of a new use free from the restrictions

attached to the land when it was acquired.”’ 426

U.S. at 679, 49 L.E.2d at 141 n. 13 (emphasis

added).

Had there been a downzoning, the procedures

followed would have been Constitutionally deticient.

Then, the principles enunciated in the dissents would

have been the correct measure of procedural due pro-

cess. The decision turned on the fact that the property

owner was seeking “new use rights.” The case did not

involve a downzoning action which “sharply reduced the

densities and floor areas that could be built.’’ Opinion

Below, 376 A.2d at 487.

Yet even though Eastlake involved an upzoning,

three justices, Justices Powell, Stevens, and

Brennan, had difficulty with the procedures followed

by the City of Eastlake in considering the merits of the

zoning application. They felt that the Eastlake case was

the one wherein the Court should address the question

now raised.

Justice Powell said:

“This procedure, affording no realistic oppor-

tunity for the affected person to be heard, even by

the electorate, is fundamentally unfair. The ‘spot’

referendum technique appears to open disquieting

opportunities for local government bodies to

bypass normal protective procedures for . csolving

issues affecting individual rights.” 426 U.S. at 680,

49 L.Ed.2d at 141.

His concern is prophetic, in light of the opinion of the

Court of Appeals of Maryland that Eastlake means that

no hearing is required in any type of zoning proceeding.

Opinion Below, 376 A.2d at 498.

In his dissent, Justice Stevens stated: “[T] he process

of making decisions affecting the use of particular pieces

of property must meet Constitutional standards.” 426

U.S. at 683, 49 L.Ed.2d at 143. What Justice Stevens said

about the procedural rights of a property owner to

apply for new use rights applies a fortari to thé

procedural rights of a property owner whose property is

downzoned:

“The fact that an indwidual owner (like any

other petitioner or plaintiff) may not have a legal

right to the relief he seeks does not mean that he

has no right to fatr procedure in the consideration

of the merits of his application. 426 U.S. at 682,

49 L.E.2d at 143 (emphasis added).

* * *

“Specialists in the practice of zoning law are

unhappily familiar with the potential for abuse

which exists when inadequate procedural safe-

guards apply io the dispensation of special grants.

The power to deny arbitranly may give rise to the

power to exact intolerable conditions. The insts-

tence on fair procedure in this area of the law falls

squarely within the purpose of the Due Process

Clause of the Fourteenth Amendment.” 426 U.S.

at 685-86, 49 L.E.2d at 144-45 (footnotes omitted)

(emphasis added).

Adequate procedural safeguards were lacking before

the Montgomery County Council, and the result was

arbitrary action reversing ten years of zoning and

planning decisions in Friendship Heights. None of the

evidence before the County Council had been tested

properly for its accuracy or probative value. Yet this

evidence formed the basis for a substantial deprivation

of Constitutionally protected property rights. The

zoning action was a parcel by parcel “dispensation” of

use, density and other development rights and burdens.

The very abuse feared by Justice Stevens occurred

here.*

The long line of cases before this Court dealing with

the substantive limits of the police power have

established that it is “one of the most essential powers

of government, — one that is the least limitable.”

Hadacheck v. Sebastian, 239 U.S. 394, 410, 60 L.Ed.

348, 356 (1915). Justice Stevens, who spoke so

forcefully in favor of providing appropriate procedural

due process in zoning proceedings, has also stated, in

regard to the substantive freedom enjoyed by zoning

bodies exercising the police power:

“It is not our function to appraise the wisdom

of its [the Common Council of the City of

Detroit] decision to require adult theaters to be

separated rather than concentrated in the same

areas. In either event, the city’s interest in

attempting to preserve the quality of urban life is

one that must be accorded high respect. Moreover,

the city must be allowed a reasonable opportunity

to experiment with solutions to admittedly serious

problems.” Young v. American Min: Theatres, Inc.,

427 U.S. 50, 71, 49 L.Ed.2d 310, 326-27 (1976).

*True, Justice Stevens is speaking of an application by an

individual property cwner for single parcel upzoning, and the

proceeding here involved several parcels, treated collectively. But

that is not a significant distinction, particularly because this case

involves a downzoning, a diminishing of property rights. Justice

Stevens also recognized:

“When we examine a state procedure for the purpose of

deciding whether it comports with the constitutional

standard of due process, the fact that a State may give it a

‘legislative’ label should not save an otherwise invalid

procedure.” 426 U.S. at 686, 49 L.E.2d at 145.

When such vast discretion is permitted in substantive

areas, then procedural constraints are all the more

important. As a minimum, procedural due process

demands procedures which will assure development of

competent, reliable, probative evidence to justify zoning

action which diminishes substantive rights. Procedures

which permit such zoning action to rest upon

incompetent, unreliable, untested evidence are Constitu-

tionally inadequate. The greater the impact upon

substantive rights, the greater is the necessity for

procedural protection to prevent an arbitrary exercise

of the police power.

It is perhaps surprising that the formulation of

standards of procedural due process have lagged behind

the formulation of standards of substantwe due process

in zoning. Justice Douglas stated in his concurring

opinion in Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123, 179, 95 L.Ed. 817, 858

(1951):

“It is not without significance that most of the

provisions of the Bill of Rights are procedural. It is

procedure that spells much of the difference

between rule by law and rule by whim or caprice.

Steadfast adherence to strict procedural safeguards

is our main assurance thatthere will be equal

justice under law.”

Justice White, in his dissenting Opinion in Moore v.

City of East Cleveland, USS. , 52 L.Ed.2d

531, 563 (1977), recognized that historically the first

purpose of the Due Process Clauses has been the

affordance of “procedural due process.”’ He stated:

“The emphasis of the Due Process Clause is on

‘process.’ As Mr. Justice Harlan once observed, it

has been ‘ably and consistently argued in response

to what were felt to be abuses by this Court of its

reviewing power....’ that the Due Process Clause

should be limited ‘to a guarantee of procedural

due process.’ Poe v. Ullman, 367 U.S. 497, 540, 6

L.Ed.2d 989, 81 S. Ct. 1752 (1961) (Harlan, J.,

dissenting).”

Petitioners are seeking this fundamental procedural

protection which the Constitution affords, at a time

when procedural protection is becoming the last

safeguard of property owners’ rights.

If procedural due process must be afforded, the

question follows, What does that include, and in

particular, does it include a right of cross-examination?

The answer centers upon the fundamerial role of

cross-examination in the development of a proper

evidentiary support for governmental action.

The zoning action here (the implementation of a

Sector Plan by sectional map amendment) is not

jurisdiction-wide comprehensive rezoning. The County

Council itself held it to be implementation of a

“detailed development plan” on a parcel by parcel

basis. The Circuit Court recognized the particular

character of this zoning action:

“The court [Circuit Court] ultimately narrowed

its holding; it said that cross-examination need not

be extended to the parties in all comprehensive

rezoning hearings but ‘where comprehensive re-

zoning ts effected by a sectional map amendment

which adopts a sector plan and consequently

rezones property within a CBD, the District

Council must afford to the parties, upon request, a.

reasonable opportunity for cross-examtination.’ ”

Opinion Below, 376 A.2d at 496 (emphasis

added).

The distinction between zoning of an _ individual

parcel and the zoning involved here is only one of

numbers. Petitioners have not lost any procedural due

process protection which they might otherwise have had

merely because the zoning body decided to consider

their property collectively with that of others. This

case, therefore, is not one which lies at the far end of

the spectrum with jurisdiction-wide comprehensive

zoning. Rather, because of the particularized allocation

of development rights involved, on a parcel by parcel

basis, the downzoning here is closer to single lot zoning.

In other types of cases, this Court has addressed the

importance of the opportunity to cross-examine wit-

nesses whose testimony might be the basis for depriving

one of Constitutionally protected mghts. In Greene v.

McElroy, 360 U.S. 474, 496-97, 3 L.Ed.2d 1377,

1390-91 (1959) Chief Justice Warren, speaking for five

members of the Court, said:

“Certain principles have remained relatively

immutable in our jurisprudence. One of these is

that where governmental action seriously injures an

individual, and the reasonableness of the action

depends on fact findings, the evidence used to

prove the Government’s case must be disclosed to

the individual so that he has an opportunity to

show that it is untrue. While this is important in

the case of documentary evidence, it is even more

important where the evidence consists of the

Amendment which provides that in all criminal

cases the accused shall enjoy the right ‘to be

confronted with the witnesses against him.’ This

Court has been zealous to protect these rights

from erosion. It has spoken out not only in

criminal cases, {citations omitted], but also in all

types of cases where admmistrative and regulatory

actions were under scrutiny. [Citations omitted.]

Nor, as it has been pointed out, has Congress

ignored these fundamental requirements in enact-

ing regulatory legislation. Joint Anti-Fasctst

Refugee Committee v. McGrath, 341 U.S. 123,

168, 169, 95 L.Ed. 817, 852, 71 S. Ct. 624

(concurring opinion).

“Professor Wigmore, commenting on the impor-

tance of cross-examination, states in his treatise, 5

Wigmore on Evidence (3d ed. 1940) §1367:

‘For two centuries past, the policy of the

Anglo-American system of Evidence has been to

regard the necessity of testing by _ cross-

examination as a vital feature of the law. The

belief that no safeguard for testing the value of

human statements is comparable to that furnished

by cross-examination, and the conviction that no

statement (unless by special exception) should be

used as testimony until it has been probed and

sublimated by that test, has found increasing

strength in lengthening experience.’”’ (Emphasis

added.)

testimony of individuals whose memory might be

faulty or who, in fact, might be perjurers or

persons motivated by malice, vindictiveness, in-

tolerance, prejudice, or jealousy. We have for-

malized these protections in the requirements of

confrontation and cross-examination. They have

ancient roots. They find expression in the Sixth

The opportunity to introduce evidence and rebuttal

evidence before the County Council did not fulfill the

need to discredit and impeach opposing witnesses. It is

not enough to have a record, for example, where one

witness has stated that permitting large buildings will

not result in harmful traffic or air pollution, and has

given his reasons, and an opposing witness has stated

that permitting large buildings wil result in harmful

traffic and air pollution, and has given his reasons.

Neither party has had an opportunity to discredit or

impeach the other, and faced with such a record, the

decision-maker could make any decision and find a

basis for it. The incompetent, unreliable evidence has

not been separated from that which is competent,

reliable, and probative. This produces the incongruous

result that while a record devoid of evidence cannot

support a decision, false, untested evidence in a record

could.

Some evidence may on its face carry more weight

than other evidence. However, the accepted method for

determining the weight of the evidence is not on the

basis of its prima facie value. Rather, it is to test that

evidence by cross-examination. Only after evidence is so

tested will the decision-maker be in a position to apply

the substantive criteria enunciated by this Court in

Euclid v. Ambler Realty, supra, and succeeding cases.

The decision will have the proper evidentiary support.

Property rights at stake will be afforded their

guaranteed procedural due process protection, as well as

their guaranteed substantive due process protection.

The practical consideration that an _ inordinant

amount of time, effort, and expense would be required

to conduct a due process, trial-type hearing with

cross-examination where a number of property owners

are involved has often been raised in this case. The

Circuit Court Judge addressed this problem in _ his

Opinion strixiag the downzoning action. He stated:

“(T]he Court does not envision the problems

predicted by the appellees [Montgomery County,

et al.|., with massive numbers of people asking the

opportunity to interrogate one another. The

Council cannot be heard to complain in this regard

as it was their determination to consider a large

number of properties in one proceeding. Similar

problems have been solved in local map amend-

ment cases by referring the matter to a hearing

examiner.”” Opinion of the Circuit Court at 32

(App. 110a).

Petitioners’ procedural due process rights should not

be lost because their property has been considered

collectively with that of others. The statement of Mr.

Justice Holmes in Pennsylvania Coal Company v.

Mahon, 260 U.S. 393, 416, 67 L.Ed. 322, 326 (1922),

is appropriate here:

“We are im danger of forgetting that a strong

public desire to improve the public condition is

not enough to warrant achieving the desire by a

shorter cut than the constitutional way of paying

for the change.”

The fact that procedural safeguards may be cumber-

some in some _ respects does not eliminate the

Constitutional requirement that they be afforded.

24 la

CONCLUSION [483] APPENDIX A

The exercise of the police power to downzone MONTGOMERY COUNTY, Maryland

property is circumscribed by Constitutional standards of et al.

substantive and procedural due process. This Court has

spoken many times on the substantive limitations upon v.

the exercise of the police power in zoning proceedings.

It has never addressed the question, What Constitutional WOODWARD & LOTHROP, INC., et al.

standard of procedural due process is applicable in a No. 104.

downzoning proceeding? This case presents that ques-

tion squarely. The question is more crucial now than Court of Appeals of Maryland.

ever before, when governmental action affects so many

substantive rights. Procedural safeguards have become July 15, 1977.

the most important protection against arbitrary govern- * * *

mental action. Consequently, the question presented is 48 , .

appropriate for consideration by this Court and the ee Richard E. Frederick, Asst. County Atty.,

Site deenld the lemead. | Rockville (Richard S. McKernon, County

Atty., Rockville, on the brief), for Mont-

Respectfully submitted, gomery County, Maryland.

Roger W. Titus, Rockville, for Citizens

Coordinating Committee on Friendship

By ee : Heights, Inc. et al.

; pee William S. Green, Washington, D.C.

(Pierson, Ball & Dowd and Richard M. Sing-

Joun F. McCase, JR. er, Washington, D.C., on the brief), for Sp.

yk snot nae Taxing Dist. of Friendship Heights and the

Rockville, Maryland 20850 Hills and the Friendship Heights Village

Of Counsel: (301) 279-7900 Council.

sree some Attorneys for Petitioners. Norman M. Glasgow, Washington, D.C.

uite cCabe ;

51 Monroe Street (John F. M , Jr., Washington, D.C., on

Rockville; Maryland 20850 the brief), for Morton Funger et al.

(301) 279-7900

[486]

Stephen Z. Kaufman, Silver Spring (Jo-

seph P. Blocher, Silver Spring, on the brief),

for Sidney S. Zlotnick et al., Homer S. Gu-

delsky, Trustee and The Marina Apart-

ments, Inc.

David N. Webster, Washington, D.C.

(Paul R. Connolly, Washington, D.C., on the

brief), for Milton A. Barlow et al.

Howard J. Thomas, Silver Spring, Charles

R. Donnenfeld, Arent, Fox, Kintner, Plot-

kin & Kahn, Washington, D.C., on brief, for

Woodward & Lothrop, Inc. et al.

George H. Beuchert, Jr., Washington,

D.C., on brief, for The Chevy Chase Land

Co. of Montgomery County, Md.

William M. Canby, Rockville, on brief, for

Gevco Company, Inc. et al.

Prince George’s County, Maryland by

James C. Chapin, County Atty., Michael O.

Connaughton, Deputy County Atty., and

Steven M. Gilbert, Assoc. County Atty., Up-

per Marlboro, on the brief, for amicus curi-

ae.

Argued before MURPHY, C. J., and

SINGLEY, SMITH, DIGGES, LEVINE and

ORTH, JJ.

MURPHY, Chief Judge.

These appeals draw into question the va-

lidity of a rezoning by sectional map

amendment of all properties within the

Central Business District of Friendship

Heights, Montgomery County, Maryland.

The Regional District Act, Maryland

Code (1957, 1976 Cum.Supp.) Art. 66D, § 8

101(b) grants zoning power to the Mont-

gomery County Council, sitting as a District

Council (the Council) for that portion of the

Maryland-Washington Regional District ly-

ing within the county, to regulate by ordi-

nance, inter alia (1) the location, height,

bulk, and size of buildings, (2) the size of

lots and other open spaces, (3) the density

and distribution of population, and (4) the

location and uses of buildings and land.' In

the exercise of this power, the Council is

authorized to divide the Regional District

within the county “into districts and zones

of whatever number, shape or area it may

determine.” Art. 66D, § 8-102. The zon-

ing powers vested in the Council have been

implemented by enactment of the Mont-

gomery County zoning ordinance (the zon-

ing ordinance), Montgomery County Code

(1972), ch. 59, §§ 59-1 through 59-209. In

addition to the text provisions of the zoning

ordinance, the adopted zoning map for that

portion of the Regional District located in

Montgomery County is expressly made a

part of the ordinance by § 59-38. Section

59-205 authorizes amendments to the text

of the zoning ordinance. Section 59-195

authorizes amendments to the zoning map;

it provides that an application for amend-

1. The Regional District encompasses, with mi-

nor exceptions, all land in Prince George’s and

Montgomery Counties. See New Carrollton v.

Belsinger Signs, 266 Md. 229, 292 A.2d 648

(1972).

ment of the zoning map may be in the form

of:

“(a) A local [piecemeal] amendment cov-

ering a single tract, all portions of which

*are proposed to be classified ir the same

zone; or all. portions of which are pro-

posed to be classified in one of two alter-

native zones.

“(b) A sectional plan amendment cover-

ing a section of the Maryland-Wash-

ington Regional District, portions of

which may be proposed to be classified in

different zones.

“(c) A district plan amendment covering

the entire Maryland-Washington Region-

al District within the county.”

Section 59-196 provides that proposals for a

sectional or district plan map amendment

may be made only by the Maryland-Nation-

al Capital Park and Planning Commission

(the Planning Commission) or by the Coun-

cil.

(1)

The Central Business District (CBD) of

Friendship Heights is one of five such dis-

tricts in Montgomery County authorized by

§ 59-50(bX1) of the Montgomery County

Code (1972). It encompasses the entire po-

[487]

litical subdivision known as the Special

Taxing Districts of Friendship Heights and

The Hills.2 Located on the boundary line

between the county and the District of Co-

lumbia, it is bordered by Wisconsin and

Western Avenues and lies generally north

of the District of Columbia, west of the

Village of Chevy Chase, and south of the

Town of Somerset. The Friendship

Heights CBD is compact and intensely de-

veloped; within its borders is a mixture of

residential, office, and commercial develop-

ment consisting of a number of high-rise,

high-density apartment houses and hotels,

office buildings, retail shopping centers, in-

cluding several department stores, and

some single family residences. It has been

aptly described as an urban crossroad, a

business center both local and regional in

scope, with buildings of “Manhattan-like”

proportions. It is a major transportation

center in the county and a rapid rail (Met-

ro) transit station is scheduled for construc-

. tion at the intersection of Wisconsin and

Western Avenues by late 1980. The

Friendship Heights CBD is virtually sur-

2. Montgomery County Code (1972), ch. 66,

§ 66-1. See also Friendship Heights v. Funger,

265 Md. 339, 289 A.2d 329 (1972).

rounded by single family residential neigh-

borhoods located immediately outside of its

eastern, western and northern boundaries.

Population in 1972 within the CBD was

almost 3,000 persons. Prior to May 28,

1974, the Friendship Heights CBD was com-

prised of a land area totalling 62 acres.

Existing zoning within the CBD at that

time was primarily high density commer-

cial, C-2 (General commercial), with some

R-CBD (Multi-family, residential). No

floor area ratio (FAR) limits were imposed

by this zoning, which allowed a maximum

height of 110 feet with provision for addi-

tional floors, upon compliance with certain

conditions; up to 143 feet.

On May 28, 1974, the Council amended

the text of § 59-50(bX1) of the zoning

ordinance by reducing the size of the

Friendship Heights CBD to 37.51 acres and

realigning its boundaries. Thereafter, on

July 16, 1974, the Council adopted Resolu-

tion 7—1849 granting Sectional Map Amend-

ment Application F—947 to the zoning ordi-

nance, which implemented an adopted “Sec-

tor Plan” for the Friendship Heights CBD.

The sectional map amendment rezoned a

total of 41.01 acres of land, comprising all

property within the revised CBD and a 3.50-

acre parcel of land immediately outside its

boundaries. It assigned new zoning classi-

fications to all properties within the CBD

which regulated the height, area and use of

permissible development and thereby sharp-

ly reduced the densities and floor areas that

could be built.

Ten aggrieved property owners whose

properties had been downzoned by the sec-

tional map amendment appealed to the Cir-

cuit Court for Montgomery County, as au-

thorized by Maryland Code, Art. 66D, § 8-

105. The issues being similar, the cases

were consolidated for hearing and oral ar-

gument extended over a four-day period.

On July 15, 1976, Judge H. Ralph Miller, in

a thorough and studious memorandum opin-

ion and order, reversed the Council’s resolu-

tion granting the sectional map amendment

on the ground that the procedural rights of

the property owners to cross-examine wit-

nesses at the sectional map amendment

hearings before the Council, and to be af-

forded sufficient time to present evidence

at those hearings, had been violated. Ap-

peals were filed from this judgment to the

Court of Special Appeals by Montgomery

County, the Citizens Coordinating Commit-

[488]

tee of Friendship Heights, the Special Tax-

ing Districts of Friendship Heights and The

Hills, and the Friendship Heights Village

Council, all parties to the proceedings below

(hereinafter the appellants). The property

owners (hereinafter ‘iiu2 appellees) filed

cross-appeals, contending that the lower

court erred in concluding (1) that the sec-

tional map amendment constituted compre-

hensive, rather than local or piecemeal, re-

zoning; (2) that the Council and the Plan- °

ning Commission had acted within their

statutory authority in adopting the Sector

Plan for the Friendship Heights CBD upon

which the sectional map amendment was

based; and (3) that the sectional map

amendment did not constitute either condi-

tional zoning, a “confiscation” of property,

or a violation of the uniformity require-

ments of the zoning ordinance. We grant-

ed certiorari prior to decision in the cases by

the Court of Special Appeals. See Mary-

land Code (1974) Courts and Judicial Pro-

ceedings Article § 12-201.

The appeals have spawned a massive 12-

volume record extract totalling almost 5,000

pages. Briefs filed by the parties collec-

10a

tively exceed 365 pages. A review of mat-

ters underlying adoption of the Sector Plan

for the Friendship Heights CBD, upon

which the sectional map amendment is

based, is essential to a proper under-

standing of the issues raised by the parties.

Maryland Code, Art. 66D, § 7-108 autho-

rizes the Planning Commission, with the

approval of the Montgomery County Coun-

cil, to adopt both a General Plan for the

physical development of the Regional Dis-

trict and a loca] Master Plan for each plan-

ning area in the county. Pursuant to this

authority, a General Plan was adopted on

January 22, 1964 for Montgomery and

Prince George’s Counties entitled “On

Wedges and Corridors.” It called for high

density urban development along major

transportation corridors in Montgomery

County and preservation of the areas be-

tween the corridors (the wedge area) for

low density development, buffers, parks

and recreational areas. It envisioned the

creation of five central business districts in

Montgomery County, one to be located in

Friendship Heights—the urbanized base of

the northwest corridor in the county. The

General Plan recognized that existing com-

mercial zones were inadequate, particularly

lla

for complex business centers and it warned

against too intensive development within

urban areas. It noted that the presence or

absence of utilities can determine where

urban growth will occur and observed that

excessive development could aggravate

strained street systems and water and sew-

erage resources. The General Plan charac-

terized itself as a “dynamic instrument

rather than a finished product”; it stated

that while its goals and major patterns

were firm, “its details must evolve and de-

velop.” It called for the development of

local area plans in Montgomery County,

noting that such plans “will be of utmost

importance in preparing sectional zoning

map amendments which will form the basis

for properly controlling the sequence of de-

velopment, as well as for solving local land

use, transportation and public service prob-

lems.” It also noted a need for “specific

project plans” to deal with “[s]pecific small-

scale problems . . ._ such as revitaliz-

ing a business district . . ._ [which

will] require very detailed project plan-

ning.”

In conformity with the recommendation

of the General Plan, a local Master Plan for

the 22-square-mile Bethesda-Chevy Chase

12a

Plannimg Area (the B-CC Master Plan), of

whitch Friendship Heights was a part, was

sadopted in 1970. It projected considerable

growth for Friendship Heights, both in the

Maryland and District of Columbia por-

tions, and indicated that such growth would

likely intensify with the anticipated open-

ing of a rapid rail (Metro) transit station in

Friendship Heights. The B-—CC Master

Plan recommended that allowance be made

for the orderly expansion of the Friendship

Heights CBD, consistent with the need for

open space; that parking requirements be

diminished in the CBD; and that surround-

ing single family residential neighborhoods

be protected. It also called for more de-

tailed study of proposed land use and facili-

ties within the CBD, and recommended that

a “detailed development plan” be prepared

for the entire Friendship Heights area, in-

cluding both the Maryland and District of

Columbia portions. Finally, it called for

the creation of new commercial zones to

assure the adequate development of CBDs

in the county.

On June 22, 1971, the Montgomery Coun-

ty Council enacted Resolution 7-270 creat-

ing a Citizens Advisory Committee (the

Blue Ribbon Committee) “To Study Zoning

[489]

l3a

In Central Business Districts And Transit

Station Areas” throughout the county. The

resolution recited that “patterns of develop-

ment are changing in high density areas of

the county and in areas which will be af-

fected by the advent of a rapid rail sys-

tem”; the resolution expressed a need to

develop new zones and revise existing zones

in order to encourage the development of

mixed use and relatively high density cen-

ters of residential, commercial and office

activities in the CBDs while at the same

time protecting existing residential neigh-

borhoods from the impact of such develop-

ment. Shortly after the creation of the

Blue Ribbon Committee, the Planning Com-

mission appointed an Advisory Committee / _

for the specific purpose of assisting it in

preparing a detailed development plan for

Friendship Heights as recommended by the

1970 B—CC Master Plan.

The Blue Ribbon Committee recom-

mended to the Council that three new and

more restrictive zoning categories be adopt-

ed for CBDs in the county—CBD-1, CBD-

2, and CBD-3, each containing a standard

and optional method of development. The

Committee recommended that these zones

replace all others then authorized within

l4a

the CBD, and that detailed, short-range (6-

to-10-year) plans, to be known as “Sector

Plans,” be adopted as amendments to the

applicable Master Plans for CBDs in each

planning district in the county.’

The Planning Commission, with the as-

sistance of the Advisory Committee, prepar-

ed a “Preliminary Sector Plan for the Cen-

tral Business District of Friendship

Heights” in December of 1972. Centered

on the proposed Friendship Heights rapid

3. In its report, the Committee recommended,

and the Council adopted, an amendment to the

zoning ordinance, which defined the term “Sec-

tor Plan” as follows:

“Comprehensive plan for a portion of a

master plan area, showing in detail such

planning features as type, density and inten-

sity of land uses, pedestrian traffic features,

public facilities (parking structures, public

open space, rapid transit station, community

service provisions and the like), and relation-

ship of the various uses planned to transpor-

tation, services and amenities within the area

of the sector plan and, where appropriate, to”

other areas. The sector plan may include

maps, graphics and text, and is designed as

the sector plan for the area which it encom-

passes. It may be adopted either as a part of

a new area master plan or as an amendment

to an existing master plan.” See County

Code (1972, 1975 Cum.Supp.) § 59-1.

l5a

transit station, it encompassed the entire

geographic area of the CBD, and included

the “immediate environs” of Friendship

Heights, a total of approximately 78 acres;

it also took into consideration matters relat-

ing to the Town of Somerset and Chevy

Chase Village, adjacent to the CBD. The

Preliminary Sector Plan purported to be an

amendment to the B—CC Master Plan, re-

fining and implementing the policy objec-

tives outlined in that plan, viz., (1) to pro-

vide for the orderly development of the

CBD “at a scale which can be tolerably

balanced against the constraints imposed by

a seriously limited feeder road system,” (2)

* to utilize new zoning tools to accomplish

that end, (3) to preserve and protect the

residential neighborhoods adjacent to the

CBD, and (4) to undertake public improve-

ment programs and enact zoning changes

required to support the proposed planning

objectives. The Preliminary Sector Plan

stated that the amount of development

within the CBD must be related to the

ability of the existing feeder road system to

serve the CBD; it noted, however, that

these roads could not be significantly im-

proved except at unacceptable financial and

environmental costs. It concluded that

[490]

loa

traffic on feeder roads was a primary con-

straint on the amount of development that

was feasible in Friendship Heights. It said

that if development within the CBD were

to occur at the scale and intensity permitted

by existing zoning the feeder road system

would become impacted to an intolerable

degree. The Preliminary Sector Plan also

referred to environmental and other con-

straints upon development within the CBD.

It, therefore, recommended a substantial

reduction in the amount and intensity of

development within the CBD, adoption of

the more restrictive CBD zoning categories

recommended by the Blue Ribbon Commit-

tee, and a reduction in the size of the CBD

itself.

Public hearings were held on the prelimi-

nary Sector Plan before the Montgomery

County Planning Board (the Planning

Board) of the Planning Commission for five

days in February and March of 1973. Al-

most 100 witnesses appeared and a tran-

script of over 1,300 pages was assembled,

together with a large amount of documen-

tary material.

On September 4, 1973, the Council adopt-

ed the new and more restrictive CBD zones

l7a

(standard and optional method of develop-

ment) recommended by the Blue Ribbon

Committee’ Thereafter, ir October of

1973, the Planning Board, having studied

the record made at the public hearings on

the Preliminary Sector Plan, adopted a Fi-

nal Draft Sector Plan, which it transmitted

to the Council. Public hearings were held

by the Council over a three-day period in

February of 1974 on the proposal to adopt

the Plan, together with a proposed text

amendment to § 59-50(b\1) of the zoning

ordinance to reduce the size and realign the

boundaries of the Friendship Heights CBD.

A total of 76 witnesses appeared at these

hearings and a transcript of over 550 pages

was amassed. Numerous written docu-

ments were received into the record, as well

as the entire record of the five public hear-

ings held on the Preliminary Sector Plan.

At the public hearings before the Plan-

ning Board and the Council on the Prelimi-

nary and Final Draft Sector Plans, con-

siderable evidence, both testimonial and

documentary, was adduced relating to traf-

4. Montgomery County Code (1972, 1975 Cum.

Supp.), ch. 59, §§ 59-51.3, .4, and 5; §§ 59-

31.2 and .3 (optional method of development).

18a

fic constraints upon development within the

Friendship Heights area. There was testi-

mony that the amount of traffic generated

by various existing developments in Friend-

ship Heights caused hopeless congestion of

the feeder road system. There was also

contrary testimony that the feeder road

system was not congested and could accom-

modate higher amounts of traffic. There

was evidence relating to a severe air pollu-

tion problem in Friendship Heights, gener-

ated in part by automobile exhaust pollu-

tants from the high volume automobile

traffic. There was evidence that the sew-

erage system serving Friendship Heights

was operating in excess of safe capacity and

aS a consequence raw sewage was being

discharged into the Potomac River. There

was evidence that there was almost a total

lack of open space or green area within the

CBD and that the scale and intensity of

development in such a small area caused

traffic congestion, inadequate parking, ag-

gravating noise, and visual pollution.

The Council held five work sessions in

early 1974 on the Final Draft Sector Plan,

approving it, with modifications, together

with the text amendment te § 59-50(b)\1)

19a

of the zoning ordinance, on May 28, 1974.

In adopting the Sector Plan (the Adopted

Sector Plan), the Council accepted the rec-

ommendations made in the Preliminary

Sector Plan as to the existence and effect

of traffic and environmental constraints on

the amount of development which was fea-

sible within the Friendship Heights CBD.

With respect to traffic constraints upon de-

velopment in Friendship Heights, the

Adopted Sector Plan determined that Metro

would serve Friendship Heights by late

1980 and that under the minimum accepta-

ble traffic constraints at peak hours (so-

called service level D), there would be a

maximum of approximately 11,000 develop-

ment-induced trips (evening peak hour ve-

liicular trips originating in or destined to

both the District of Columbia and: Maryland

portions of Friendship Heights) over and

above through traffic trips and those trips

to and from the proposed Metro station.

To implement the zoning recommenda-

tions contained in the Adopted Sector Plan,

Sectional Map Amendment Application F-

947 was filed on June 4, 1974 and a public

5. The Planning Commission adopted the ap-

proved Sector Plan on June 12, 1974.

[491]

20a

hearing was scheduled for July 8 and 13,

1974. The Council advised all property

owners within the CBD a week prior to the

hearing that time limitations would be im-

posed for the presentation of oral testimo-

ny—eight minutes for property owners, six

minutes for the Special Taxing Districts,

and less for civic associations and individu-

als. The Council also announced that it

would not allow cross-examination of

speakers, although it would at the conclu-

sion of all testimony provide time for rebut-

tal by any previous speaker wishing to chal-

lenge or correct prior statements or materi-

al. Timely objection to this procedure was

made by the appellees. Twenty-five wit-

nesses testified at these hearings and the

entire record of the public hearings on the

Preliminary and Final Draft Sector Plan

was made a part of the record. After hold-

ing a final work session, the Council adopt-

ed Resolution No. 7--1849 on July 16, 1974,

granting the sectional map amendment.

As required by § 59-208 of the County

Code (1972), the Council filed an opinion

“setting forth its conclusions and reasons”

for granting the sectional map amendment.

After noting that the map amendment was

filed to implement the Adopted Sector Plan,

2la

and that that Plan was the detailed devel-

opment plan for the Friendship Heights

CBD recommended by the B-CC Master

Plan, the Council said:

“In the February 27, 1974 worksession,

the County Council, after a careful study

of the voluminous evidence, accepted the

traffic capacity figures and trip genera-

tion rates as a basis-for proceeding on the

Sector Plan; i. e., an overall modal split

of 20%,§ generation factors of- 1.5

trips/1,000 square feet of office space, 3.6

trips/1,000 square feet of retail space,

and 0.7 trips/residential dwelling unit,

and the traffic capacity limitation of 11,-

000 p. m. peak hour development-induced

trips. The County Council found the

above-mentioned figures reasonable with

regard to the use and traffic capacity for

the subject area and that there is sub-

stantial technical and experimental bases _

for the estimation that there should be

11,000 locally generated peak hour trips.

6. A 20% modal split, in traffic planning par-

lance, means that 20% of all trips being made

to, from, and through Friendship Heights will

be by modes of transportation other than auto-

mobile, with 80% of the trips being by automo-

bile.

26a

“The County Council in dealing with

the issues of density and land use found it

appropriate to analyze land use questions

as they relate to both density and use,

and then to translate them into consider-

ations dealing with the recommended

land use designations. The Council, in

applying the new CBD zones to certain

parcels in the study area, examined the

question of the development limits that

would be applicable within the Friendship

Heights Central Business District. The

Council has concluded that, given the

traffic capacity figures and trip genera-

tion rates, the land use designations

which appear in the adopted and ap-

proved Friendship Heights Sector Plan

will allow development to occur that will

not overload the existing transportation

system and other public facilities.

“The Council in limiting the number of

new trips to be generated in Friendship

Heights has recognized that the air quali-

ty of the area should be preserved at

pollutant levels below federal and state

air quality ceilings. Although future

regulation concerning air quality may

preclude some development, it was con-

cluded that the constraints placed upon

23a

traffic will result in the stabilization of

the air quality in the Friendship Heights

area.

“In designating CBD zones to areas

within the Friendship Heights Central

Business District, the Council has recog-

nized that the CBD zones were designat-

ed to assure that future development will

provide more green space, setbacks, and

human amenities than have characterized

Friendship Heights development in the

past. The existing development within

the Friendship Heights Sector Plan Area

comprises 1,028,000 square feet of office

use, 437,000 square feet of retail use, 230

motel units, and 2,999 residential dwell-

ing units. These uses include several

large office buildings, several department

stores including Woodward and Lothrop

and Sak’s Fifth Avenue, and a number of

apartment and condominium buildings.

In order to assure that the scale of devel-

opment in the future will result in a

quality of life that would be appropriate

for areas such as Friendship Heights, the

approved and adopted Sector Plan allows

for an additional 555,000 square feet of

office use, 375,000 square feet of retail

use, 1,648 residential dwelling units, and

[492]

24a

a projected total population in the Sector

Plan Area of 6,000 persons.

“The County Council further recog-

nized that the Friendship Heights Sector

Plan Area is surrounded by a single fami-

ly residential areas and that these neigh-

borhoods must be protected and buffered

from the development occurring in the

central business district. In approving

the Sector Plan for the Friendship

Heights Central Business District, the

County Council felt that the land uses

designated in the Sector Plan would not

adversely impact the lifestyles and quali-

ty of life found in the nearby neighbor-

hoods and yet would provide those person

desiring a more urbanized setting the op-

portunity to live in an area such as the

Friendship Heights Central Business Dis-

trict.”

2 * s e . o

“. . The County Council finds

from this evidence [of record] that it

would be in the public interest, and serve

to protect the public heazith, safety and

welfare that Sectional Pian Amendment

F-947 should be granted.”

25a

(3)

In reversing the Council’s resolution

granting the sectional map amendment, the

lower court held that the Council’s refusal

to permit cross-examination at the sectional

map amendment hearings, or to afford

property owners sufficient time to present

evidence, violated §§ 59-204 and 59-207 of

the County Code, as construed in Hyson v.

Montgomery County, 242 Md. 55, 217 A.2d

578 (1966), without regard to whether the

rezoning was local (piecemeal) or compre-

hensive.

Appellants contend that the principles

enunciated in Hyson relating to the right of

cross-examination apply only to local map

amendment hearings involving a piecemeal

rezoning and not to a sectional map amend-

ment proceeding filed by the Council which

effectuates a comprehensive rezoning.

They also argue that the lower court was in

error in holding that the appellees were not

afforded adequate time to present evidence

at the sectional map amendment hearings

before the Council. They maintain that

since the lower court found that the rezon-

ing was comprehensive and otherwise law-

ful, its action in reversing the Council’s

26a

resolution was improper. The appellees

- claim that Judge Miller correctly held that

they were denied their right of cross-exami-

nation and sufficient time to submit evi-

dence into the record at the sectional map

amendment hearings. They contend that

Judge Miller was also correct in holding

that §§ 59-204 and 59-207 of the County

Code, as construed in Hyson, applied to

comprehensive as well as piecemeal rezon-

ing. They argue, however, that he was

wrong in concluding that the rezoning in

this case was comprehensive. Whether the

rezoning was comprehensive and valid is

thus a threshold issue in the case to which

we initially turn our attention.

(4)

The parties agree that under our cases,’

so succinctly synthesized by the Court of

7. -Nottingham Village v. Baltimore County, 266

Md. 339, 354-55, 292 A.2d 680, 688 (1972);

Scull v. Coleman, 251 Md. 6, 10-11, 246 A.2d

223, 225 (1968); Trustees v. Baltimore County,

221 Md. 550, 561, 158 A.2d 637, 642 (1960);

Hewitt v. Baltimore County, 220 Md. 48, 151

A.2d 144 (1959); Huff v. Bd. of Zoning

Appeals, 214 Md. 48, 133 A.2d 83 (1957); Anne

Arundel County v. Ward, 186 Md. 330, 46 A.2d

684 (1946).

[493]

27a

Special Appeals in Grooms v. LaVale Zon-

ing Board, 27 Md.App. 266, 277, 340 A.2d

385 (1975), a comprehensive zoning plan is

one which applies to or covers a substantial

or wide geographical area. The zoning plan

must be well thought out, the product of

careful consideration and extensive study,

and based upon considerations concerning

the common needs of the particular area.

It must be designed to control and direct

the use of land and buildings according to

present and planned future conditions, to

accomplish as far as possible the most ap-

propriate uses of land consistent with the

public interest and the safeguarding of the

interests of the individual property owners.

Other characteristics of comprehensiveness

may be found in the fact that the plan

zones all, or substantially all, of a political

subdivision, that it regulates all uses, or

that it covers all of the usual factors of land

utilization: height, area and use.

Appellees contend that to constitute valid

comprehensive rezoning, the proposed

changes must be related to land use plan-

ning and overall zoning policies for an en-

tire planning area, here the 22-square-mile

B-CC planning area of which Friendship

Heights is but a small part. They contend

28a

that zoning through sectional map amend-

ment in Montgomery County has always

been based exclusively upon an approved

General Plan or local Master Plan, but that

the Adopted Sector Plan for the Friendship

Heights CBD, and the sectional map

amendment which implements it, represent

a drastic departure from the recommenda-

tions of these basic planning documents,

both of which call for intensification of

development and expansion of the Friend-

ship Heights area. Appellees claim that

because the Adopted Sector Plan has no

comprehensive land use planning basis, it

cannot constitute a valid amendment to the

General Plan or the B—CC Master Plan. It

is nothing more, they say, than a detailed

study of individual parcels of land within

the CBD considered in isolation from the

relevant planning area and consequently

the sectional map amendment in reality is

but a parcel-by-parcel local piecemeal re-

zoning which must be judged by the

“change-mistake” rule.

8. Under the “change-miStake” rule, to sustain a

piecemeal zoning change, there must be pro-

duced strong evidence of mistake in the origi-

nal zoning or else evidence of a change in

[footnote continued]

29a

[1] We think the Adopted Sector Plan,

upon which the sectional map amendment

was based, plainly constitutes the detailed

development plan for the Friendship

Heights CBD called for by the B—CC Mas-

ter Plan, the need for which was also recog-

nized in the General Plan. We view the

Adopted Sector Plan as a valid amendment

to these planning documents and therefore

find no merit in the suggestion that because

the Adopted Sector Plan does not include

the entire B—CC planning area, the section-

al map amendment lacks a comprehensive

land use planning basis. Thére is no re-

quirement that the area covered by a sec-

tional map amendment coincide with the

area of the relevant Master Plan; it need

only apply to a “section of the Maryland-

Washington Regional! District” (§ 59-195 of

the zoning ordinance). Nor is there any

requirement, absent a statute, that the map

conditions resulting in a substantial change in

the character of the neighborhood. Rockville

v. Henley, 268 Md. 469, 302 A.2d 45 (1973);

Clayman v. Prince George’s County, 266 Md.

409, 292 A.2d 689 (1972); Heller v. Prince

George’s County, 264 Md. 410, 286 A.2d 772

(1972). The rule has no application in compre-

hensive rezoning cases. Scull v. Coleman, su-

pra.

——

30a

amendment must adhere to the recommen-

dations of the General or Master Plan.

Such land use planning documents rep-

resent only a basic scheme generally outlin-

ing planning and zoning objectives in an

extensive area, and are in no sense a final

plan; they are continually subject to modi-

fication in the light of actual land use de-

velopment and serve as a guide rather than

a strait jacket. Nottingham Village v. Bal-

to. County, supra, 266 Md. at 354, 292 A.2d

680. See also Pattey v. Board of County

Comm'rs, 271 Md. 352, 317 A.2d 142 (1974);

Iverson v. Zoning Board, 22 Md.App. 265,

322 A.2d 569 (1974). Moreover, contrary to

appellees’ suggestion, the Adopted Sector

Plan is by no means fundamentally incon-

sistent with either the General Plan or the

B-CC Master Plan; it represented but a

specific modification of the planning and

zoning objectives broadly outlined in those

documents based on existing land use facts.

[2] While the Adopted Sector Plan was

limited to a study of a 78-acre planning

area and its immediate environs, and did

not cover a wide geographical area in the

county, we think the 4l-acre area rezoned

by the sectional map amendment does com-

[494]

3la

prise, in the particular circumstances of this

case, a “substantial” area for purposes of

determining whether the rezoning was com-

prehensive. What is a “substantial” area in

this context cannot be measured solely in

terms of the acreage covered by the zoning

plan, but rather may take into account the

substantiality of existing and proposed land

use within the area, the fact that the area

rezoned embraces an entire political subdi-

vision, population, intensity of development,

and whether the plan purports to address

the common needs of a particular district.

Nottingham Village v. Baltimore County,

supra; Scull v. Coleman, supra; Anne

-Arundel County v. Ward, supra.® In other

9. Anne Arundel County v. Ward, supra, in-

volved an original zoning. Our predecessors

there held that the requirement for comprehen-

siveness was met “if due consideration is given

to the common needs of a particular district.”’

186 Md. at 340, 46 A.2d at 688. In his oft-cited

article in 68 Harv.L.Rev. 1154, 1161 (1955) enti-

tled “In accordance with a Comprehensive

Plan,’ Professor Charles M. Haar expressed the

view that under the holding of the Ward case,

“a governmental unit could select any relative-

ly small segment of its land for regulation, so

long as that regulation was coherent and ra-

tionally supportable in reference to the district

involved.”

32a

words, the test of a “substantial” area for

purposes of comprehensive zoning is a flexi-

ble one and depends on the circumstances.

In Border v. Grooms, 267 Md. 100, 109, 297

A.2d 81, 85 (1972), a piecemeal zoning case

involving a determination of whether there

had been a change in the “neighborhood,”

we recognized that “the concept of a neigh-

borhood is a flexible one and will vary

according to the geographical location in-

volved, it being axiomatic that in a rural or

semi-rural area the ‘neighborhood’ will be

larger and more fluid than in a city or

suburban area.” By analogy, the rationale

of that case is applicable here in regard to

our determination of whether a sectional

map amendment, which purports to be a

comprehensive rezoning, applies to or cov-

ers a “substantial” geographical area.

As previously indicated, the Friendship

Heights CBD is one of five such districts in

Montgomery County, encompassing within

its well-defined borders an intensely devel-

oped political subdivision with a population

projected to increase to 6,000 persons under

the development plan outlined in the

Adopted Sector Plan. Although a rezoning

of 41 acres in a rural setting would not

likely be considered “substantial,” the re-

zoning of that amount of land in Friendship

33a

Heights by sectional map amendment which

regulates all uses of properties within the

CBD indeed covers a “substantial” area

within the contemplation of our cases. We

therefore agree with the lower court that

the geographic requirement for comprehen-

sive rezoning has been satisfied.

All other requisite indicia of comprehen-

siveness are also present. Underlying

adoption of the sectional map amendment

was a well thought out, carefully considered

and extensively studied (for over three

years) plan, correlated to the common needs

of the Friendship Heights are. There was

massive participation in the planning proc-

ess by property owners, citizens, govern-

mental officials, developers, expert witness-

es, and civic and community associations.

The plan took into account, as a primary

constraint, severe. limitations on the street

system, and also inadequacies of sewerage

transmission and disposal, the effects of air

pollution and other environmental con-

straints. As heretofore indicated, the re-

quirement for a comprehensive plan is met

“if due consideration is given to the com-

mon needs of a particular district,” Anne

Arundel County v. Ward, supra, 186 Md. at

[495]

34a

340,.46 A.2d at 688, and we think the sec-

tional map amendment in this case plainly

meets that criterion.

{3,4] We think the record in this case

fully supports the lower court’s holding that

the rezoning was designed to control and

direct the use of land and buildings accord-

ing to present and planned future condi-

tions, so as to accomplish the most appropri-

ate uses.of land, consistent with the public

interest and the safeguarding of the inter-

ests of the individual property owners. No

useful purpose would be served by a de-

tailed or extended discussion of the volumes

of evidence before the Council relating to

traffic and environmental constraints upon

the scale of permissible development in the

Friendship Heights area. Suffice it to say

that the record convincingly demonstrates

that the rezoning was comprehensive and

bore a substantial relationship to the public

health, comfort, safety, convenience, morals

and general welfare; as such it enjoys a

strong presumption of validity. See County

Council v. District Land, 274 Md. 691, 337

A.2d 712 (1975); Montgomery County

Council v. Leizman, 268 Md. 621, 303 A.2d

35a

374 (1973); Norbeck v. Montgomery

County, 254 Md. 59, 254 A.2d 700 (1969).

Zoning is, of course, a legislative function

and our review of the acts of the zoning

authority is restricted and narrow in scope.

We decide only whether the zoning action

was arbitrary, discriminatory or illegal; we

do not substitute our judgment for that of

the zoning authority if its decision is sup-

ported by substantial evidence and the issue

is fairly‘ debatable. Ark Readi-Mix v.

Smith, 251 Md. 1, 246 A.2d 220 (1968);

Trustees v. Baltimore County, supra. Ap-

pellees have not overcome the presumption

that the rezoning was valid and bore the

necessary relationship to the general public

interest and welfare.

In concluding that the sectional map

amendment constituted comprehensive re-

zoning, we note the presence of other cardi-

nal characteristics of comprehensiveness, /.

e., all property within the CBD was rezoned

by regulating all uses and covering all of

the usual factors of land utilization—

height, area and use. In addition, the area

rezoned encompassed an entire political sub-

division of the county.

36a

[5,6] The record does not support appel-

lees’ suggestion that the rezoning constitut-

ed a political decision to satisfy some prop-

erty owners at the expense of others. Nor

is it necessary to show by specific evidence,

as appellees argue, that the rezoning bene-

fits all of the citizens of the county. Nor-

beck v. Montgomery County, supra; Anne

Arundel County v. Ward, supra. Finally,

appellees’ argument that the rezoning was

not comprehensive because only 24 of the 41

acres affected were actually downzoned is

equally without merit. That few changes

may have been made in a comprehensive

rezoning plan does not change its character

or alter its nature. See Scul] v. Coleman,

supra, 251 Md. at 11-12, 246 A.2d 223.

(5)

We think the lower court was wrong in

holding that even though the rezoning was

comprehensive, Hyson v. Montgomery

County, supra, mandated that the appellee

property owners be afforded a right to

cross-examine witnesses at the sectional

map amendment hearings before the Coun-

cil.

Unlike the present case, Hyson involved a

single lot piecemeal rezoning. The basic

37a

question before the Court was whether the

Montgomery County zoning ordinance re-

quired that cross-examination be permitted

at the hearing on the application for reclas-

sification. It was contended that since the

Council was acting in a quasi-judicial capac-

ity, it was required to conduct a “trial-type”

hearing, at which parties were entitled as a

matter of right to cross-examine witnesses.

The provisions of the zoning ordinance

involved in Hyson, now §§ 59-204 and 59-

207 of the County Code (1972) (the same

sections as are involved in the present case),

provide for a public hearing in connection

with an application for an amendment of

the zoning map. Section 59-204 affords

any interested person “the right to submit

oral or written testimony or documentary

evidence into the record at the hearing”; it

also provides that “a complete stenographic

report . . . and a typewritten tran-

script thereof” shall be made; that the

transcript, the application for the amend-

ment, the zoning map, and all exhibits shall

be considered as parts of the record; and

that “evidence [offered at the hearing]

which is immaterial, irrelevant, or unduly

repetitious may be excluded.” Section 59-

207 provides that the Council shall deter-

[496]

38a

mine the merits of the application ‘on the

basis of the evidence of record.”

It was in “the light of these provisions”

of the zoning ordinance that the Court in

Hyson said that it was required to “deter-

mine . .... the type of public hearing

which the Council was required to afford,

and the nature of the functions exercised

by the Council at such hearing .. “s

242 Md. at 64, 217 A.2d at 584. While the

Court recognized that the actual act of zon-

ing and rezoning was legislative or quasi-

legislative in nature, it said that it was

“inaccurate to characterize the whole pro-

ceeding at the hearing held by the Council .

when considering an application for reclas-

sification and its action of denying or

granting reclassification as quasi-legislative

in nature or quasi-judicial in nature.” Id.

Referring to §§ 59-204 and 59-207 of the

zoning ordinance, the Court said that there

provisions “required the . . . Covncil

to resolve disputed questions of adjudica-

tive facts (as contradistinguished from leg-

islative facts or judicial action ) concerning

particular parties.” Id. “Adjudicative

facts” were recognized by the Court, citing

1 Davis, Administrative Law Treatise,

§ 7.02 (1958) [hereinafter cited as Treatise ],

39a

as “roughly” the kind of facts that go to a

jury in a jury case. The Court said:

“(When the Council was considering and

determining these adjudicative facts con-

cerning particular parties, it necessarily

was performing a quasi-judicial function,

even though its final action, in granting

or denying the reclassification which was

required to be based upon its findings of

adjudicative facts, was quasi-legislative

in character.” 242 Md. at 65, 217 A.2d at

584. |

The Court concluded that §§ 59-204 and

59-207 of the zoning ordinance conferred

quasi-judicial functions upon the Council in

making its determination of the facts at the

piecemea! rezoning hearing and that a rea-

sonable right of cross-examination must be

allowed. It said at 67, 217 A.2d at 585:

“The authorities seem to be in accord

that when an administrative board or

agency is required to hold a public hear-

ing and to decide disputed adjudicative

facts based upon evidence produced and a

record made, that a reasonable right of

cross-examination must be allowed the

parties. Professor Davis, op. cit., § 7.05,

states the proposition in this manner:

‘When the adjudicative facts are in dis-

40a

pute, our legal tradition is that the party

affected is entitled not only to rebut or

explain the evidence against him but also

to “confront his accusers” and to cross-

examine them.’ We have no intention of

attempting to promulgate a comprehen-

sive rule respecting the type or the

amount of cross-examination that the

Council must provide at hearings on ap-

plications for reclassification. The ra-

tionale of the cases and authorities is that

reasonable cross-examination, which is re-

quired for a full and true disclosure of

the facts, having due regard to the cir-

cumstances of each particular case, the

nature of the proceedings, and the char-

acter of the rights which may be affected

by it must be permitted; and that is as

far as we are required to go at this time.”

(Footnote omitted.)

The lower court in the present case re-

jected the argument that Hyson applied

only to piecemeal rezoning hearings. It

said that the Council performed a quasi-ju-

dicial function in developing the record and

it could make no distinction between proce-

dures to be followed at local and sectional

map amendment hearings because the re-

4la

quirement that the determination be made

on the basis of the evidence of record, and

upon the merits, applied equally to both

types of map amendment hearings. The

lower court concluded that there was no

significant distinction between the type of

facts or parties involved in the piecemeal

rezoning in Hyson and those involved in the

instant case. It said that the Council’s deci-

sion in each case was based upon the same

type of facts, i. e., both were “adjudicatory

in character.” The lower court concluded

that the due process clause of the Four-

teenth Amendment did not mandate the

result which it reached, but rather that the

right to cross-examine was based “purely”

upon the provisions of the zoning ordinance,

as construed in Hyson. The court ultimate-

ly narrowed its holding; it said that cross-

examination need not be extended to the

parties in all comprehensive rezoning hear-

ings but “where comprehensive rezoning is

effected by a sectional map amendment

which adopts a sector plan and consequent-

ly rezones property within a CBD, the Dis-

trict Council must afford to the parties,

upon request, a reasonable opportunity for

cross-examination.”

OOOO

[497]

42a

[7] Property to be inferred from a statu-

tory right to a public hearing on a zoning

map amendment application is a right to a

fair hearing in all respects, including the

privilege of introducing evidence and the

duty of deciding in accordance with the

evidence. Ford v. Baltimore County, 268

Md. 172, 300 A.2d 204 (1973); Heath V. M.

& C. C. of Baltimore, 187 Md. 296, 49 A.2d

799 (1946). There is, of course, no literal

requirement in §§ 59-204 or 59-209 that a

right of cross-examination must be afforded

to interested persons at map amendment

hearings. Hyson implies the existence of .

that right in piecemeal rezoning cases. It

views the right as one of fundamental im-

portance in such cases, which exists either

as a requirement of due process or by rea-

son of the-right to a public hearing itself,

because the facts to be determined are

deemed adjudicative and the Council’s func-

tion as quasi-judicial in nature. We have

reaffirmed the rationale of Hyson in later

zoning cases, none of which, however, in-

volved comprehensive rezoning.’ The re-

10. See Birckhead v. Board of County Comm'rs,

260 Md. 594, 273 A.2d 133 (1971); Bayer v.

Siskind, 247 Md. 116, 230 A.2d 316 (1967):

[footnote continued]

43a

sult reached in Hyson was premised largely

on the distinction drawn between adjudica-

tive and legislative facts by Professor Davis

in his Treatise, but our reliance on that

work may have been unwarranted. Indeed,

Professor Davis has criticized our holding in

Hyson, suggesting that even in piecemeal

rezoning hearings no. adjudicative facts are

involved. He said in the 1970 Supplement

to bis Treatise:

“The [Hyson | court quoted from § 7.05 of

the Treatise that cross-examination

should be allowed when adjudicative

facts are in dispute, but it did not demon-

strate that adjudicative facts were in dis-

pute. A concurring judge persuasively

argued that cross-examination was un-

necessary because what the Council was

doing was rezoning of four acres, a legis-

lative function. The concurring judge

objected to the court’s requirement of

cross-examination, ‘Professor Davis to the

Town of Somerset v. Board, 245 Md. 52, 225

A.2d 294 (1966); Gorin v. Board of County

Comm'rs, 244 Md. 106, 223 A.2d 237 (1966).

See also Annot., 27 A.L.R.3d 1304 (Right to

Cross-Examination of Witnesses in Hearings

before Administrative Zoning Authorities)

(1969).

+4ta

contrary notwithstanding, but he cited

no Davis position to the contrary. Nor

could he, for that position is that opportu-

nity for cross-examination should be re-

quired if but only if adjudicative facts

are in dispute.”

Davis, Administrative Law Supplement,

§ 7.04, at 323 (1970).

[8,9] We recognized in Chevy Chase

Village v. Board, 249 Md. 334, 239 A.2d 740

(1968), that a “judicial” or “trial-type” hear-

ing is not a requirement of procedural due

process where an administrative agency

does not act in a quasi-judicial tapacity and

the facts to be determined are “legislative”

rather than adjudicative in nature. See

also Albert v. Pub. Serv. Commission, 209

Md. 27, 120 A.2d 346 (1956). The difference

between adjudicative and legislative facts is

not easily drawn; Professor Davis says that

adjudicative facts are facts about the par-

ties and their activities, businesses and

properties. They usually answer the ques-

tions “of who did what, where, when, how,

why, with what motive or intent” while

legislative facts “do not usually concern the

immediate parties but are general facts

which .help the tribunal decide questions of

law and policy and discretion.” Davis,

[498]

45a

Treatise, § 7.02. The difference, broadly

speaking, involves whether the decision is to

be made on individual or general grounds.

Davis, Treatise, § 7.04. Simply because an

individual has a protected interest does not

entitle him to a trial-type hearing where

the matter to be determined involves issues

of legislative fact. Davis, Administrative

Law of the Seventies, §§ 7.00—-1—7.00-11

(1976). That the effect of a zoning authori-

ty’s decision may dramatically affect an

individual is not determinative of the dif-

ference between adjudicative and legisla-

tive facts; rather, it is the nature of the

decision’s fact-finding process, not the ulti-

mate effect of the decision, that determines

the party’s right to an adjudicatory hear-

ing. Powelton Civic Home Own. Ass’n v.

Department of H. & U. Dev., 284 F.Supp.

809, 830 (E.D.Pa.1968)."!

11. The court there said (p. 829) that where the

decisions to be made by the administrative

agency require factual findings on the particu-

lar status of a particular individual an adjudica-

tory hearing may be necessary; but where the

decisions rest on more general findings requir-

ing analysis and evaluation of factors not

uniquely related to any specific individual, no

such hearing would be required.

46a

[10,11] The appellants contend, and we

agree, that in comprehensive rezoning pro-

ceedings the Council does not consider and

determine adjudicative facts concerning

particular parties within the contemplation

of our decision in Hyson. A real distinction

exists between piecemeal and comprehen-

sive rezoning hearings; it lies in the nature

of the basic function being performed by

the zoning authority in each case. In a

local map amendment proceeding in Mont-

gomery County, the zoning authority con-

siders a single piece of property and must

make a factual determination, based on evi-

dence of record, as to whether there has

been a change in the physical character of

the neighborhood where the property is lo-

cated or a mistake was made in the original

zoning. Piecemeal rezoning hearings,

therefore, contemplate an adversary or tri-

al-type procedure to resolve adjudicative

facts. A different determinative standard

applies where the Council is considering a

comprehensive rezoning by the sectional

map amendment process; there its focus is

not on a single piece of property, but rather

on a considerable number of properties as

they relate to each other and to the sur-

rounding area. The Council in that in-

47a

stance considers whether the comprehensive

rezoning takes into account future public

needs and purposes; whether it is designed

to provide an adequate potential for orderly

growth in the future and to satisfy local

and regional needs; and ultimately whether

it bears the requisite relationship to the

public health, safety and general welfare.

As appellants correctly point out, these are

not adjudicative determinations affecting

one property owned by one person, but in-

stead are classically legislative determina-

tions designed to affect local and regional

needs and all property owners within the

planning area. The procedure is fundamen-

tally legislative and no significant quasi-ju-

dicial function is involved. That the Coun-

cil determined the zoning for each specific

property owned by the various appellees

and considered the impact of traffic and

environmental constraints upon the scale of

permissible development within the CBD

does not alter the basic fact that the issues

for determination were legislative, not ad-

judicative, and did not require a judicial or

trial-type hearing. See South Gwinnett

12. Rev’g 482 F.2d 389 (Sth Cir. 1973), cert.

denied, 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64

(1974).

48a

Venture v. Pruitt, 491 F.2d 5 (5th Cir. 1974)

(en banc); Fasano v. Board of County

Com'rs of Washington Cty., 264 Or. 574, 507

P.2d 23 (1973); Fleming v. City of Tacoma,

81 Wash.2d 292, 502 P.2d 327 (1972). Ac-

cordingly, we hold that there was no consti-

tutional or other right arising from §§ 59-

204 and 59-207 to cross-examine witnesses

at the sectional map amendment hearings

involved in this case. Indeed, in its most

recent pronouncement on the subject, the

Supreme Court has indicated that it would

not constitute a deprivation of procedural

due process if no hearing was permitted

either in a piecemeal or comprehensive re-

zoning action. See Eastlake v. Forest City

Enterprises, Inc., 426 U.S. 668, 96 S.Ct.

2358, 49 L.Ed.2d 132 (1976). See also Bi-

Metallic Inv. Co. v. State Bd. of Equaliza-

tion, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372

(1915); San Diego Bldg. Contr. Ass’n v.

City Coun. of San Diego, 13 Cal.3d 205, 118

Cal.Rptr. 146, 529 P.2d 570 (1974), appeal

dismissed, 427 U.S. 901, 96 S.Ct. 3184, 49

L.Ed.2d 1195 (1976).

(6)

The lower court also relied upon Hyson in

holding that the Council’s resolution grant-

[499]

49a

ing the sectional map amendment required

reversal because the appellee property own-

ers were afforded only eight minutes each

to testify at the sectional map amendment

hearings. It said that Hyson:

“makes it clear that where a legislative

body must make its decision on ‘evidence

of record’, and that record making re-

quires an adjudicatory fact finding proc-

ess, the legislative body must comply

with due process requirements. The Dis-

trict Council’s action in announcing a

time limitation and, in effect, denying the

appellants a fair opportunity to partici-

pate in the record making process by

presenting direct evidence or rebuttal tes-

timony after cross-examination directly

contravenes the holding of Hyson, supra.

That is not to say that fair limitations

cannot be made as to repetitious or irrele-

vant testimony, but as the matter stands

the District Council’s action in announc-

ing the eight minute time limitation was

arbitrary and capricious and requires a

reversal of this rezoning.”

In Hyson, our predecessors said that zon-

ing authorities have discretion “to regulate,

reasonably, the length of time afforded par-

ties to present their evidence” and that

2 eee

50a

“{w]hether constitutional or statutory re-

quirements, or the elements of fair play and

impartiality have been violated in this re-

gard should also be decided on a case to

case basis.” 242 Md. at 69-70, 217 A.2d at

587. We think the lower court erred as a

matter of law in concluding, in the circum-

stances of this case, that the eight-minute

time limitation was arbitrary and capri-

cious.

The appellee property owners were ac-

corded the most time to present evidence at

the hearing, i. e., eight minutes each, or

almost five hours collectively for the 87

individual property owners involved. Pool-

ing of time was permitted in order to make

joint presentations, if desired, and each

property owner was afforded the right to

submit written material and exhibits with-

out restriction. Each property owner was

permitted to rebut any evidence offered

into the record without regard to the eight-

minute time limit. The Council advised all

property owners a week in advance of the

hearing as to the time limits that would be

imposed. Two days were consumed by the

Council in conducting the hearings and

massive amounts of evidence previously

submitted during the sector plan hearings

5la

were incorporated into the record, much of

which presented the views espoused by and

on behalf of the appellee property owners.

[12] Wash. County Taxpayers Ass'n v.

Board, 269 Md. 454, 306 A.2d 539 (1973),

involved a public hearing before a county

Planning Commission on a proposed com-

prehensive plan at which a three-minute

time limit was imposed on each speaker.

We there noted the necessity for imposing

reasonable time limitations upon speakers

at public hearings involving widespread

public interest. We found the three-minute

time restriction there imposed, when cou-

pled with the right to submit supplemental

written statements, to have been reasonable

in the circumstances and not to have im-

paired the validity of the hearing. To simi-

lar effect, see Freeland v. Orange County,

273 N.C. 452, 160 S.E.2d 282 (1968). See

also Reed v. California Coastal Zone Conser-

vation Com., 55 Cal.App.3d 889, 127 Cal.

Rptr. 786 (1975).

We think the appellee property owners

were not deprived of any constitutional or

other right arising under § 59-204 of the

zoning ordinance by reason of the imposi- |

tion of the challenged timé constraint. |

[500]

52a

What the Council did in the circumstances

of this case, everything considered, was

both reasonable and fair and in substantial

compliance with the legislative mandate.

Particularly when considered in conjunction

with the opportunity afforded the property

owners to submit evidence into the record

to supplement their oral presentations, the

eight-minute limitation did not compromise

their right effectively to make their views

known to the Council.

(7)

The appellees next contend that the

Council’s action in adopting the Sector Plan

and the sec§jonal map amendment was un-

lawful because in creating the new CBD

zones it violated the provisions of Maryland

Code, Art. 66D;-§ 8-101 by illegally delegat-

ing its zoning power “[to determine] the

density and distribution of population,” vis-

a-vis, the optional method of development

of the CBD zones, to the Montgomery

County Planning Board of the Planning”

Commission."

13. The members of the Planning Commission

appointed by the Montgomery County Council

constitute the Montgomery County Planning

Board. Art. 66D, § 7-111. .

53a

As heretofore indicated, the CBD zones

are authorized by §§ 59-51.3, .4, and .5 of

the County Code (1975 Cum.Supp.); they

provide for a standard and an optional

method of development. The zones were

intended to encourage residential and com-

mercial development at densities supporta-

ble by existing and proposed public facili-

ties which would be compatible with the

surrounding areas. A property with a CBD

zoning classification may, under the provi-

sions of the zoning ordinance, be developed

as a matter of right in accordance with the

standard method of development, or ii it

contains a minimum of 22,000 square feet,

the owner may apply for the optional meth-

od of development which permits more in-

tense development but provides for open

spaces and other facilities and amenities.

See, e. g., § 59-51.3(a). Unlike the stan-

dard method, the optional method of devel-

opment requires approval of the Planning

Board upon compliance with specified de-

velopment standards and after detailed site

plan review. The property owner is re-

quired to file a detailed application with the

Planning Board under § 5931.2 of the zon-

ing ordinance for the optional method of

development and submit a site plan and

54a

other detailed information. A public hear-

ing is mandated and the Planning Board, in

order to approve an application, must find

that it meets certain designated require-

ments enumerated in § 59-31.2(e\1) and (2)

and that the detailed site plan complies

with specified factors contained in § 59-31.-

The optional method of development is

not, as appellees suggest, a separate and

distinct zone over. which the Planning

Board exercises exclusive control contrary

to the Regional District Act. It is, as its

designation implies, an optional method for

developing property located in a CBD zone

which has been legislatively predetermined

to be compatible with uses within the zone;

it may be utilized or not, at the option of

the property owner. The Planning Board

does not determine the density and distribu-

tion of population. The Council in its legis-

lative capacity enacted the CBD zones with

predetermined maximum allowable densi-

ties and it delegated to the Planning Board

the administrative function of determining,

pursuant to carefully drawn procedural

guidelines, including site plan review, the

actual appropriate density for a specific

55a

property up to legislatively specified maxi-

mum densities. See, e. g., § 59-51.3(f)1)b.

[13,14] Executing the policy of a zoning

ordinance is an administrative function that

may be properly delegated to administra-

tive boards or officials under specified pro-

cedural guidelines. 8 McQuillin, Municipal

Corporations § 25.35 et seq. (3rd ed. rev.

1976); Baltimore County v. Mo. Reaity, 219

Md. 155, 148 A.2d 424 (1959); Huff v. Bd. of

Zoning Appeals, 214 Md. 48, 133 A.2d 83

(1957); Pressman v. Barnes, 209 Md. 544,

121 A.2d 816 (1956). We see no illegal

delegation of zoning powers to the Planning

Board in this case. Nor is there merit in

the appellees’ argument that the standards ©

and guidelines contained in § 59-31.2 of the

14. Section 59-31.2(e)(4) was declared invalid

by the lower court on the ground that it consti-

tuted an improper delegation of the zoning

power to the Planning Board. That subsection

provided that “The fact that an application

complies with all of the specific requirements

and purposes of the applicable zone shall not

be deemed to create a presumption that the

application shall be approved.” The lower

court held that the provision was severable and

no appea! was taken from that determination;

we do not pass on the question.

[501]

56a

zoning ordinance to govern the exercise of

the delegated powers are not sufficiently

clear to prevent arbiirary interpretation

and discriminatory application, or to assure

an applicant approval under the optional

method of development, given the meeting

of certain minimum conditions. Compare

Pr. George’s County v. M & B Constr. Co.,

267 Md. 338, 297 A.2d 683 (1972); Knudsen

v. Montgomery County, 241 Md. 436, 21;

A.2d 97 (1966); Beall v. Montgomery Coun-

ty, 240 Md. 77, 212 A.2d 751 (1965); Costello

v. Sieling, 223 Md. 24, 161 A.2d 824 (1960);

Rockshire Civic Ass’n v. Rockville, 32 Md.

App. 22, 358 A.2d 570, cert. denied, —— Md.

—— (1976); Marathon Oil Co. v. Township

of Plymouth, 25 Mich.App. 399, 181 N.W.2d

668 (1970); Cheney v. Village 2 at New

Hope, Inc., 429 Pa. 626, 241 A.2d 81 (1968).

(8)

[15,16] Appellees next contend that the

CBD zones violate the uniformity require-

ments of Maryland Code, Art. 66D, § 8—102,

which provide that “all [zoning] regulations

shall be uniform for each class or kind of

building throughout any district or zone,

but the regulations in one district or zone

may differ from those in another district or

57a

zone.” They argue that they are denied

uniformity of treatment in four particulars,

viz:

“1. As compared to property owners in

other CBD’s within the same zoning dis-

trict, the permitted FAR (floor area ra-

tio) is limited under the new CBD zones

so that parking accommodations in excess

of fifty percent (50%) of stated require-

ments are computed as part of the build-

ing FAR. On the other hand, in Bethes-

da (another Central Business District

within the same planning district), prop-

erty owners are allowed to meet the

parking requirements, and at the same

time, utilize fully the maximum FAR.

“2 As applied, the CBD zones do not

provide uniformity of treatment for prop-

erties similarly situated . . [be-

cause] only those properties of 22,000

square feet or more are eligible for the

‘Optional Method of Development’ (which

allows a density of 2 to 2.5 times that of

the standard method of development).

“3. [T]he CBD zones fail to assure there

will be no discrimination .. [be-

cause] the Planning Board in both the

‘Optional Method of Development’ appli-

cation process (§ 59-31.2) and ‘Site Plan

58a

Review’ (§ 59-31.3) has complete authori-

ty to dictate and specify to an applicant

that his development will be approved

only if it conforms to the use and density

recommendations set forth in the adopted

Sector Plan. '

“4. The non-conforming use provisions

of the CBD zones, §§ 59-51.3(g), 59-51.-

4(g) and 59-51.(g) impose substantial

and severe hardships upon many property

owners in that sound buildings construct-

ed prior to 1959 (e. g, Woodward and

Lothrop on parcel 2) are treated as non-

conforming uses, while buildings con-

structed after 1959 are given a grace

period from the effect of the ordinance

for seven (7) years.”

The uniformity provision contained in

Art. 66D, § 8-102 was derived from § 2 of

the Standard State Zoning Enabling Act, as

to which it was said in 1 Anderson, Ameri-

can Law of Zoning § 5.22 (2d ed. 1976), that

the purpose of the provision was mainly a

political rather than a legal one, i. e., to

give notice to property owners that there

shall be no improper discriminations. See

Dupont Circle Cit. Ass’n v. Dist. of Col.

Zoning Com’n, 355 A.2d 550 (D.C.App.),

cert. denied, 429 U.S. 966, 97 S.Ct. 396, 50

[502]

59a

L.Ed.2d 334 (1976); Orinda Homeowners

Committee v. Board of Supervisors, 11 Cal.

App.3d 768, 90 Cal.Rptr. 88 (1970). We

have also recognized that invidious distinc-

tions and discriminations in applying the

uniformity requirement are impermissible.

City of Baltimore v. Mano Swartz, Inc., 268

Md. 79, 91, 299 A.2d 828 (1973); Marathon

Builders, Inc. v. Polinger, 263 Md. 410, 422,

283 A.2d 617 (1971); Cassel v. City of Balti-

more, 195 Md. 348, 354, 73 A.2d 486 (1950).

The uniformity requirement does not pro-

hibit classification within a district, so long

as it is reasonable and based upon the pub-

lic policy to be served. Quinton v. Edison

Park Development Corp., 59 N.J. 571, 285

A.2d 5 (1971); Schmidt v. Board of Adjust-

ment of City of Newark, 9 N.J. 405, 88 A.2d

607 (1952); Dupont Circle, etc., supra. The

focus is upon the terminology of the ordi-

nance, rather than upon its application.

Green Point Sav. Bank v. Board of Zoning

Appeals, 281 N.Y. 534, 24 N.E.2d 319 (1939),

appeal dismissed, 309 U.S. 633, 60 S.Ct. 719,

84 L.Ed. 990 (1940). See Richmark Realty

v. Whittlif, 226 Md. 273, 173 A.2d 196

(1961); City of Baltimore v. Byrd, 191 Md.

632, 62 A.2d 588 (1948).

60a

[17] Applying these principles, the low-

er court found no violation of the uniform-

ity provision in the requirement that a cer-

tain portion of the FAR be designated for

parking in the Friendship Heights CBD but

not in the Bethesda CBD located in the

same district. Bethesda, unlike Friendship

Heights, is located in a special parking lot

district. See County Code (1972), Ch. 60.

Section 59-1 of the County Code, which

defines the term “gross floor area,” pro-

vides:

aa Parking for either retail or

office uses provided in the amount of

fifty percent or less than that required by

section 59-79 shall not be computed as

part of the gross floor area [an element

of FAR]; however, parking for such uses

provided in excess of fifty percent of the

stated requirements of this chapter shall

be counted as part of the gross floor area.

Section 59-79 delineates the requirements

for off-street parking for designated uses

including retail and office uses, while § 59-

66(a) provides that the off-street parking

requirements of § 59-79 shall not apply

within parking lot districts. Since the ap-

pellees’ properties are not located in a park-

6la

ing lot district, they must provide off-street

parking, 50 percent of the area of which is

computed as part of their gross floor area,

thus reducing the amount of area usable for

retail or office purposes. That properties

located in parking lot districts are not so

restricted does not in itself violate the uni-

formity requirements of § 8-102 of Art.

66D. Those properties must either pay a

parking lot district tax or provide their own

off-street parking in which event they are

subject to the provisions of § 59-1 of the

County Code. As a consequence, all proper-

ty uses which do not rely on county operat-

ed parking facilities have their gross floor

area calculated in the same manner, while

all property uses located within parking lot

districts which do not rely on county oper-

ated facilities have their gross floor area

calculated in the same manner.

[18] Nor do we find a lack of uniformity

in the requirement that properties must

have a minimum of 22,000 square feet to

qualify for the optional method of develop-

ment. The zoning regulations apply uni-

formly to all parcels less than 22,000 square

feet as well as those in excess of that area.

‘The Council determined that the optional

method of development would not be suit-

able for parcels less than 22,000 square

62a

feet,"* and the lower court held, and we

agree, that the legislative purpose of en-

couraging land assembly to permit cohesive

development and to assure open spaces and

other amenities provides a reasonable basis

for the classification.

The lower court considered the appellees’

third claim of violation of the uniformity

requirement to be premature. It said:

“[{Appellees] challenge uniformity based

upon the Planning Board’s authority to

allocate different F.A.R.’s to different

parcels within the Friendship Heights

15. The Adopted Sector Plan indicates the ra-

tionale and purpose for the area requirement.

It is there stated:

“Fragmentation of land holdings has been a

major obstacle to attractive and coordinated

development of the CBD’s. In order to en-

courage land assembly that will permit more

cohesive development and assure provision

of open space, pedestrian walks, and other

amenities, the new system permits property

owners who meet a minimum acreage re-

quirement (22,000 square feet) to elect to use

an alternative optional method of develop-

ment. The optional method allows the devel-

oper somewhat higher density than can be

achieved under the standard methods—but

only if provisions for open space and other

facilities and amenities specified by the sec-

tor plan are included.”

63a

CBD. ...... [Thhis challenge is pre-

mature because none of the [appellees]

have yet applied for the optional method

of development. Until it can be estab-

lished that the Planning Board has allo-

cated different F.A.R.’s to different par-

eels in violation of the uniformity re-

quirement there is no issue upon which

the Court can rule.”

We agree with the lower court.

With respect to the provisions of the new

CBD zones pertaining to nonconforming

[503] structures, § 59-51.3(g) (CBD-1, by way of

example) provides:

“Any buildings, structures, or uses for

which a building permit was issued after

December 31, 1958, shall not be regarded

as a nonconforming use in that they may

be continued, structurally altered, or re-

paired, or enlarged in conformance with

the requirements of this zone so long as

they remain an otherwise lawful use as

previously allowed.

“Any buildings, structures or _ uses

which become nonconforming upon re-

classification of property to this CBD

zone shali not be subject to the provisions

of sections 59-187, 59-188 and 59-189 for

a period of sevea years thereafter.”

64a

Sections 59-187 and 59-188 deal, respective-

ly, with structural alterations, and change

and abandonment of nonconforming uses,

while § 59-189 concerns reconstruction of

damaged or destroyed buildings.

[19] While noting that pre-1959 uses are

differentiated from post-1959 uses, the low-

er court found no lack of uniformity in the

nonconforming use provisions of the CBD

zoning categories. We agree. The Coun-

cil’s purpose, as appellants point out, was to

alleviate the impact of its newly created

CBD zones by providing that buildings for

which building permits were issued after

December 31, 1958, are not nonconforming.

As to buildings for which permits were

issued prior to January 1, 1959, the Council

provided that buildings, structures or uses

which become nonconforming upon reclassi-

fication to a CBD zone shall not be subject

to the provisions of §§ 59-187, 59-188, and

59-189 for a period of seven years. This

difference in treatment is neither arbitrary

nor invidiously discriminatory, but affects

alike all properties similarly situated.

(9)

Appellees contend that the provisions of

the zoning ordinance relating to the option-

65a

al method of development of the CBD zones

represent a confiscatory exercise of the po-

lice power. Although recognizing that the

optional method is not mandatory, they

nevertheless argue that its use unconstitu-

ticnally requires the dedication of public

amenities like open-air plazas, quasi-public

recreational facilities, community parks and

illegal buffer zones. They claim that the

CBD zones were superficially designed to

have a purported stanaard method of devel-

opment in order to satisfy the requirements

of the “reasonable use” test prescribed in

Rockville v. Stone, 271 Md. 655, 319 A.2d

536 (1974), when in actuality so many limi-

tations were imposed on that method of

development that no use could ever be

made of it. As a result, they say that they

are frustrated in the use of their property

unless they apply for and submit to the

exactions and limitations required for de-

velopment under the optional method. In

effect, therefore, the argument is that the

CBD zones deny them all reasonable use of

their properties and are, therefore, illegally

confiscatory.

[20] We agree with the lower court that

the appellees made no showing that they

had been denied all reasonable use of their

66a

properties under the new CBD zoning clas-

sifications. There is nothing in the record

before us to demonstrate that the chal-

lenged zoning deprives the appellees of all

beneficial use of their properties or that the

restrictions imposed were such that the

properties could not be used for any pur-

pose. Rockville v. Stone, supra; Montgom-

ery County Council v. Kacur, 253 Md. 220,

252 A.2d 832 (1969); Baltimore City v. Bo-

rinsky, 239 Md. 611, 212 A.2d 508 (1965);

Norbeck Village v. Montgomery County, su-

pra. As in Stone, there is nothing in the

record to show that the soil or topographi-

cal conditions make it unfeasible to con-

struct any type of building in compliance

with the use requirements of the CBD

zones. The record before us reveals only

that permissible densities of appellees’ prop-

erties have been significantly decreased;

that showing is, of course, insufficient to

demonstrate a confiscatory exercise of the

zoning police power in Maryland.

[21] With respect to the so-called Berg-

doll tract, it is argued that the 3.5 acres of

this property, which was rezoned by the

sectional map amendment to an R-—60 classi-

[504] fication (one family, detached residential),

67a

cannot be put to any reasonable use. Since

this property lies between two parcels

zoned R-H (multiple family, high-rise

planned residential), it is argued that it was

zoned R-60 “for the sole illegal purpose of

creating a buffer area and precluding its

use for any other purpose’”—a violation of

the principles espoused in Spaid v. Board of

County Comm'rs, 259 Md. 369, 269 A.2d 797

(1970).

We recognized in Spaid that there may be

lawful as well as unlawful buffer zones;

that there may be a transitional zone of less

intensive use properly placed between a res-

idential use district and a district permit-

ting commercial or more intensive use as

long as the transitional use does not dep~ive

the property owner of all reasonable use of

his property. No valid claim of deprivation

of all reasonable use can be meade with

respect to the Bergdoll property. There is

no indication in the record that the 3.5 acres

could not be used for the construction of

single family homes. Moreover, as the ap-

pellants point out, the owners of the Berg-

doll tract, which comprises a total of 18.19

acres, could develop a substantial portion of

it high-rise with R-60 residential on the

northern portion closest to like R—60 devel-

68a

opment; or it could be developed PD—44, as

recommended by the Adopted Sector Plan,

at a density higher than was permitted by

the R-H zoning in effect prior to adoption

of the sectional map amendment.

(10)

Appellees’ final argument is placed under

the heading of “Illegal use of Floating

Zones.” While they do not challenge the

validity. of the floating zone concept as a

proper and lawful zoning tool, it is general-

ly argued that the Council “has acted in

excess of its zoning power by enactment of

the CBD ordinance.” Appellees repeat

their earlier argument that the CBD zones

leave only a residuum of permissible devel-

opment as a matter of right, and they claim

that any significant development must be

sought under the optional method of devel-

opment through approval of the Planning

Board. As a result, appellees maintain that

this system of zoning is an unlawful depar-

ture from the standard Euclidean method

of zoning in that the scale of development

is not determined on a comprehensive, cohe-

sive basis but rather by a series of ad hoc

planning decisions. They see this as a form

of conditional zoning, unlawful in Mont-

ee eee ee

69a

gomery County, as involving the imposition

of zoning conditions via the use of floating

zones.'* We think the argument, although

not lacking in esoteric qualities, is ground-

less as a matter of law.

[22] As heretofore indicated, the float-

ing zone aspect of the CBD zones revolves

around the optional method of develop-

ment—a method which combines a legisla-

tive predetermination of compatible uses

with detailed standards to guide its applica-

tion. The CBD zones are Euclidean zones

with the optional method of development

“built” into the zones; that method is not

itself a floating zone or a special exception,

although it may, have some of their charac-

teristics. As appellants indicate, the op-

tional method provides greater assurance of

compatibility and certainty of uses than do

16. A floating zone is a special detailed use

district of undetermined location, a district in

which the proposed kind, location, size, and

form of structures must be preapproved, and

which, like a special exception use, is legisla-

tively predeemed compatible with the areas in

which it may thereafter be located on a particu-

lar application, provided specified standards

are gratified and actual incompatibility is not

revealed. Chatham Corp. v. Beltram, 243 Md

138, 220 A.2d 589 ('966).

[505]

70a

most floating zones since it has been legisla-

tively predetermined to be compatible only

with those uses within the particular CBD

zone. We think the utilization of the op-

tional method of development within the

CBD zones was well within the zoning pow-

ers granted to the Council; it does not

constitute any form of invalid conditional

zoning proscribed by the zoning ordinance

and our decision in Mont. County v. Nat’

Capital Realty, 267 Md. 364, 297 A.2d 675

(1972). Compare Swarthmore Co. v. Kaest-

ner, 258 Md. 517, 266 A.2d 341 (1970); Huff

v. Bd. of Zoning Appeals, supra.

ORDER OF THE CIRCUIT COURT FOR

MONTGOMERY COUNTY REVERSING

RESOLUTION 7-1849 OF THE MONT-

GOMERY COUNTY COUNCIL VACAT-

ED; CAS# REMANDED FOR THE EN-

TRY OF AN ORDER IN CONFORMITY

WITH THIS OPINION; COSTS TO BE

PAID BY THE PARTIES IDENTIFIED

IN THE OPINION AS THE APPELLEE

PROPERTY OWNERS.

- ——

eh We Let 2 Oe -

7la

APPENDIX B

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

{dated July 15, 1976]

IN THE MATTER OF THE

APPLICATION OF THE COUNTY

COUNCIL FOR MONTGOMERY

COUNTY, MARYLAND:

APPLICATION NO. F-947, FOR * Law Nos. 40639,

AMENDMENT TO THE ZONING ‘ 40661, 40663,

ORDINANCE MAP, COUNTY ’ 40665, 40666,

COUNCIL FOR MONTGOMERY ‘ 40667, 40668,

COUNTY, MARYLAND, SITTING ‘ 40669, 40670,

AS THE DISTRICT COUNCIL FOR * 40676

THAT PORTION OF THE MARY- °*

LAND-WASHINGTON REGIONAL

DISTRICT LOCATED WITHIN

MONTGOMERY COUNTY

MEMORANDUM OPINION AND ORDER

The captioned cases were consolidated for the purpose

of argument because the issues raised on appeal are simi-

lar. The appellants seek review of the action of the

County Council of Montgomery County, sitting as a

District Council for that portion of the Maryland-

Washington Regional District lying within Montgomery

County, in adopting Resolution No. 7-1849 on July 16,

1974. That Resolution granted Zoning Application F-

947 thereby amending, by sectional map amendment,

the Zoning Ordinance with respect to properties within

a new designated central business district in the special

taxing district of Friendship Heights and the Hills.

72a

Jurisdiction of this Court is founded upon Section 85-

78A of the Montgomery County Code (1972 Ed.) and

upon Rules B-1 through B-12 of the Maryland Rules of

Procedure. Zoning, like other exercises of the police

power, is subject to judicial review so as to determine

whether it is arbitrary, capricious or confiscatory, and

accordingly, whether a particular zoning ordinance is a

valid exercise of the police power. Appellants have raised

certain issues regarding text amendments enacted prior

to the adoption of the Sectional Map Amendment. They

argue questions of estoppel, contract zoning and certain

other matters not properly before the Court in this

appeal.

The Court has reviewed the entire record of the pro-

ceedings below, with special attention to the Joint Record

Extract prepared by the parties*, and has read and con-

sidered the authorities cited by the litigants in memo-

randa and during the four days of argument. For pur-

poses of deciding the issues presented, it is necessary to

review briefly the events which bring these cases before

the Court.

In January, 1964, the Maryland-National Capital Park

and Planning Commission (hereafter Phanning Commis-

sion) adopted a comprehensive zoning guide known as

the General Plan for Montgomery and Prince George’s

Counties. The General Plan contains five Central Busi-

ness Districts (CBD’s) in Montgomery County, one of

which is in the Friendship Heights area. The General

Plan designates Wisconsin Avenue, the primary roadway

leading into and out of Friendship Heights, as the main

transportation artery for the northwestern section of

* References to page numbers in the Joint Record Extract

are pre-fixed by the letter “E”’.

= a —_~

73a

‘

Washington metropolitan area. In October, 1970, the

master plan for the Bethesda-Chevy Chase Planning Area

(hereafter, Master Plan), implementing the General Plan,

was adopted by the Montgomery County Council. That

Plan envisions Bethesda-Chevy Chase as being trans-

formed from a fringe suburb to an inner suburb by rea-

son of increasing growth pressures along the I-270

transportation corridor, of which Bethesda is the base.

See Master Plan, p. 5.

The Master Plan’s major recommendations for the

Friendship Heights CBD are as follows:

“Provisions for the orderly expansion of the CBD,

including encouragement of multi-use developments,

with adequate public amenities, such as open space.

Provisions for orderly development around the

transit station through comprehensive site plan

review of new developments for possible reduction

in parking requirements where direct pedestrian

access to the transit station entrance is available

and extension of the arterial street system.

Protection of surrounding single-family neighbor-

hoods by the provision of park buffer areas and

transitional uses.”

The Master Plan contemplates considerable population

and employment growth in the area, and notes that with

the advent of rapid rail transit (METRO) growth will in-

tensify. The Plan then states, at page 18,

“A detailed development plan should be prepared,

in cooperation with the District of Columbia au -

thorities for the entire Friendship Heights area. . . .”

In addition, the Master Plan notes that the then exist-

ing types of zones are inadequate to plan properly for

74a

CBD’s, and recommends development of new types of

zones. See Master Plan, pp. 16, 20, 25 and 26.

By Resolution No. 7-270, introduced and adopted

June 22, 1971, the County Council created a “Citizens

Advisory Committee to Study Zoning in Central Busi-

ness Districts and Transit Station Areas” (hereafter,

Advisory Committee). The purpose of the Advisory

Committee was to study, and to advise the County

Council and the Montgomery County Planning Board

concerning, the creation of new zones for CBD’s and

Transit Station Areas throughout the county. The resolu-

contained several “whereas’”’ clauses relating to planning

policies*, and set forth broad constraints upon the

Advisory Committee’s work.

The final report of the Advisory Committee was

transmitted to the County Council on January 9, 1973.

The Advisory Committee recommended the adoption of

three new zoning categories designated CBD-1, CBD-2

and CBD-3, each to contain a “standard method of de-

velopment” and an “optional method of development.”

The latter use allows greater density but has a minimum

lot size requirement and requires developers to submit to

site plan review. CBD-3 allows the most intense develop-

ment, and CBD-1 allows the least intense. The standard

by which density is measured is Floor-Area Ratio

(F.A.R.). The CBD zoning categories are set forth in

Sections 51.3, 51.4, and 51.5 of the Zoning Ordinance

(Chapter 59, Montgomery County Code (1972 Ed., 1974

Supp.)). The Advisory Committee’s report recommends a

new concept, called “sector plans,” for the CBD’s in

* Among the policies is the following: [T]o implement

Plan and appropriate area master plans which relate to

the development of high density areas and transit station

—_

75a

each planning district. The apparent purpose of the sec-

tor plans is to control and regulate growth within the

CBD.

In December, 1972, the Planning Commission pub-

lished a preliminary sector plan for the Friendship

Heights CBD. Public hearings were held on February 7,

12, 26 and 28 and on March 3, 1973. In October, 1973,

another preliminary sector plan for the same area was

published. This plan changed some of the zoning recom-

mendations made in the 1972 preliminary sector plan.

On February 6, 7 and 9, 1974, hearings were held by

the County Council. Three items of business were con-

sidered at these hearings: first, approval of the sector

plan; secondly, a text amendment to the Zoning Ordin-

ance which changed the CBD boundaries in Friendship

Heights; thirdly, Sectional Map Amendment Application

No. F-936. At the suggestion of the County Attorney

the third item was withdrawn from the agenda and

scheduled for a separate hearing. Thereafter, a new zon-

ing application F-947 was filed.

Subsequent to the sector plan and text amendment

hearings held in February, the Council held five work

sessions in February, March and April, 1974. Then, on

May 14, 1974, the Council considered the adoption of

the Sector Plan. The resolution for approval failed, but

was reconsidered two weeks later, on May 28. At that

meeting, by Resolution No. 7-1736, the Sector Plan was

approved.

Public hearings were held on July 8 and 13, 1974, for

the purpose of considering Sectional Map Amendment

Application No. F-947. At those meetings the County

Council, through its President, set forth time limitations,

stated that no cross-examination would be permitted

76a

and allowed receipt of documents into the record, such

documents to be given full consideration on an equal

basis with oral presentations made before the Council.

The President stated further that rebuttal as to oral

testimony would be permitted within time limitations,

but that no rebuttal would be permitted as to written

testimony. Attorneys representing the property owners

objected to the conduct of the hearing aid specifically

to the time limitations and the denial of cross-examina-

tion. Witnesses called included many who had spoken at

prior planning board and sector plan meetings. When the

hearings were concluded the Council held a work session

on Monday, July 15, 1974, and President Potter an-

nounced thereafter that the record would be closed at

5:00 p.m. on that same day. The following day, July 16,

1974, Resolution 7-1849 was adopted, granting the

zoning changes sought by Sectional Map Amendment

Application F-947. The captioned appeals were noted as

a result of the adoption of that resolution.

There are seven major issues presented in these appeals.

They will be considered below in the following order:

I. IS THE SECTIONAL MAP AMENDMENT COMPREHEN-

SIVE REZONING OR IS IT PIECEMEAL REZONING?

ll. DID THE PLANNING COMMISSION AND THE DISTRICT

COUNCIL ACT WITHIN STATUTORY AUTHORITY ?

Ill. IS THERE AN ILLEGAL DELEGATION OF AUTHORITY

FROM THE DISTRICT COUNCIL TO THE PLANNING

BOARD?

IV. DOES THE SECTIONAL MAP AMENDMENT CONSTI-

TUTE CONDITIONAL ZONING?

V. ARE THE SUBJECT PROPERTIES “CONFISCATED”

BY THE SECTIONAL MAP AMENDMENT?

77a

VI. DOES THE SECTIONAL MAP AMENDMENT VIOLATE

THE UNIFORMITY REQUIREMENT OF THE ENABLING

ACT?

VII. WERE APPELLANTS DENIED CERTAIN PROCEDURAL

DUE PROCESS AT THE SECTIONAL MAP AMEND-

MENT HEARINGS?

IS THE SECTIONAL MAP AMENDMENT COMPREHEN-

SIVE REZONING OR IS IT PIECEMEAL REZONING?

The appellants contend in their briefs and in oral

argument that the adoption of Sectional Map Amendment

Application No. F-947 was merely a series of local map

amendments and not comprehensive rezoning. If the

Map Amendment constitutes comprehensive rezoning, it

is entitled to the same presumption of validity and

correctness as an original zoning, and the appellants have

a heavy burden of overcoming that presumption. Ark

Readi-Mix Concrete Corp. v. Smith, 251 Md. 1 (1964);

Scull v. Coleman, 251 Md. 6 (1968). If the map amend-

ment is local (piecemeal) then the “‘change-mistake rule”’

applies. See Cassel v. Mayor and City Council of Baltt-

more, 195 Md. 348, 354 (1950).

Section 59-195, Montgomery County Code (1972 Ed.,

1974 Supp), reads as follows:

Application for amendment of the zoning map may

be in the form of

(a) A local amendment covering a single tract, all

portions of which are proposed to be classified in

the same zone; or all portions of which are proposed

to be classified in one of two alternative zones.

(b) A sectional plan amendment covering a section

of the Maryland-Washington Regional District, por-

78a

79a

tions of which may be proposed to be classified in

different zones.

Maryland-Washington Regional District within the

County.

Huff v. Board of Zoning Appeals, 214 Md. 48 (1957);

Anne Arundel County v. Ward, 186 Md. 330 (1946).

The first indicitum of comprehensiveness is that the

plan apply to over cover a wide or substantial geographi-

cal area. The Sectional Map Amendment in question

rezones only forty-one acres of a total of 140,000 acres

in the zoning district. Appellees point out, however, that

the area included in the Sectional Map Amendment

includes the e ntire Friendship Heights CBD. Neverthe

less, it is a small area when compared with the entire

Bethesda-Chevy Chase Zoning District and it would

seem that the first requirement has not been met. In

support of their contention that the total area here

involved is too small appellants cite the case of Hewttt v.

County Commissioners of Baltimore County, 200 Md.

48 (1959), in which the Court held that an area of 15 to

20 square miles was large enough to satisfy the geographi

cal requirement of a comprehensive plan. The Hewttt

case, however, relied upon the case of County Commis-

sioners of Anne Arundel v. Ward, 186 Md. 330 (1945).

The Ward case involved the issue of the authority of the

County Commissioners under the enabling act to zone

only selected residential districts and to leave open other

areas in which uses are not restricted. The Court held

that the actions of the County Commissioners constituted

comprehensive rezoning within the purview of Euclid,

Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). The

following excerpt from the Ward opinion has been

followed consistently by the Maryland courts:

Comprehensive rezoning was recently defined in

Grooms v. LaVale Zoning Board, 27 Md. App. 266, 277

(1975), where the Court stated:

“The indicia of “‘comprehensiveness” in a zoning

plan are well established. A comprehensive zoning

plan is one which applies to or covers a substantial

or wide geographical area. It must be well thought

out and based upon considerations concerning the

common needs of the particular area. In other

words, it must be the product of careful considera-

tion and extensive study. It must be designed to

control and direct the use of land and buildings

according to present and planned future conditions,

so as to accomplish, as far as possible, the most

appropriate uses of land consistent with public

interests and the safeguarding of the interests of the

individual property owners. Other characteristics of

comprehensiveness may be found in the fact that it

zones all, or substantially all, of a political subdivi-

sion, that it regulates all uses — good, bad and in-

different, or that it covers all of the usual factors of

land utilization: height, area and use (cases omitted).

The fact that few changes in zoning are made does

not affect the comprehensive nature of the plan.”

ER ANNA rT 64 eR RE a ce. A he A hed OG a a 08 SE CUT

—

The indicia of comprehensiveness set forth by Judge

Davidson in Grooms are synthesized from the texts of

several Court of Appeals cases, including Trustees of

McDonough v. Baltimore County, 221 Md. 550 (1960);

“The enabling act calls for a comprehensive plan,

but we think such a requirement is met, if due con-

sideration is given to the common needs of a partic-

ular district. No doubt such needs will vary with

80a

each area zoned.” 186 Md. at p. 340 (emphasis

added).

It is evident from examining Scull v. Coleman, supra,

Hewitt v. County Commissioners of Baltimore, supra, and

more recent decisions that it is not necessary to rezone

substantial areas per se for the zoning action to be con-

sidered comprehensive rezoning. When the Bethesda-

Chevy Chase Master Plan was adopted in 1970 it was

noted that the Friendship Heights CBD would be

studied at a later date as a part of the comprehensive

planning process. It is largely as a result of those

studies that this sectional map amendment has been

adopted. The Court is of the opinion that the geographi-

cal requirement for comprehensive rezoning is satisfied,

because the rezoning purports to meet the common

needs of a sizeable portion of the intensely developed

Bethesda-Chevy Chase Zoning District.

The next indicium of comprehensiveness is that of

careful consideration and extensive study, correlated to

the common needs of a particular area. The appellees

state in their brief that in Grooms v. LaVale, supra, a

period of eight to ten months was held to satisfy this

requirement. The following language from that case is

pertinent:

“For a period of eight to ten months before the

plan’s proposal and submission to the public

the Board gave it careful consideration and exten-

sive study . .. . [T]wo public hearings were held

. . . The Board reviewed the nature and extent of

the then existing land classifications and uses. The

availability and adequacy of public facilities such as

water, sewers, and roads, were taken into account.

The present and future needs of the citizens of the

LaVale Zoning District and of Allegany County

2 fe Stel

ee eee ee Se ef

Aah Mb Air eh ie ths dc iertiabhs mb eas

;

8la

were explored thoroughly. 27 Md. App. at 278

(emphasis added)

The underscored language above is the crux of what

is necessary to satisfy the requisite studies; they must

be thorough and must give due consideration to the

public nature of the rezoning. The planning process

here involved is lengthy — the record extract alone is

almost 2,000 pages. The Court turns, therefore, to the

nature and thoroughness of the studies.

The report of the Advisory Committee considered

not only the CBD’s themselves, but areas surrounding

them, and the rest of the county as well. That study

was aimed at developing new zoning tools, as

recommended by the Master Plan, to enhance the

CBD’s and thereby benefit the public at _ large.

Recommendations as to particular actions to be taken

in any given CBD were not made. The raison d’etre of

the Advisory Committee was not to recommend

particular zones for particular parcels of land, but

simply to advise the County Council and the Planning

Board on legislation.*

A reading of the record reveals that much weight was

given to studies done on traffic capacities of the feeder

road system, air pollution, sewerage and open space

requirements. If each item is considered in a vacuum,

then it might be said to be local in nature, as appellants

contend. However, these studies are, first of all

*The final report of the advisory committee is not a part of

the administrative record before us. It is, however, a matter of

public record which directly relates to the matter at hand and is

included only for the purpose of informing the reader of the

report's proper place in the planning process. Cf., Aspen Hill

Venture v. Montgomery County Council, 265 Md. 303 (1972).

82a

interrelated, and secondly, done in light of the effect

which METRO will have.

It must be stressed at this point that the Friendship

Heights CBD is a major retail area, and is a

transportation center for the entire north-west metro-

politan area. Studies were done which are directly

related to the safety, the health, the comfort and the

convenience of persons traveling to, from and through

the CBD. In addition, there is an indication that the

sewer and water problems which exist for the county at

large would be aggravated by continued growth in the

Friendship Heights CBD. This issue is fairly debatable;

therefore the question must be resolved in favor of the

appellees.

Next, the appellees argue that the Sectional Map

Amendment cannot be comprehensive rezoning because

it is not in conformity with the Master Plan. The

Maryland law permits a sectional map amendment as a

valid amendment to an existing master plan. (See Part

II of this opinion.) The appellants question the right of

the District Council to relate back to prior studies —

they contend the zoning action in question is contrary

to the General and Master Plans and not, as in District

Land, supra, an action which brings the property into

conformity with previously existing plans. They argue

that the District Council must rely solely on the

evidence produced in support of this zoning application

and that the evidence is insufficient in depth and scope

to make the zoning comprehensive. The answer to this

is that the Court is not convinced that the Sectional

Map Amendment is contrary to the General Plan and

the Master Plan.

It is true that the Sectional Map Amendment does

modify the Master Plan in certain respects. See Sector

83a

Plan, p. 53. However, after a thorough review of the

record, the Court is not convinced that the Sectional

Map Amendment effects zoning changes as radically

different from the Master Plan as the. appellants

contend. The District Council has made a legislative

determination that the adopted Sectional Map Amend-

ment does conform with the Master Plan. It is settled

law that the Court will not interfere with legislative

decisions unless they be arbitrary, whimsical, discrimina-

tory or illegal. See Trustees of McDonough, supra, at p.

565. The Court is of the opinion that the new plan

does not depart so far from the Master Plan as to

require the Court to rule invalid the integrated planning

process.

A sectional map amendment may be enacted for one

of two purposes: first, it may bring land uses into

conformity with a master plan (e.g., Montgomery

County Council v. Leizman, 268 Md. 621 (1973)); or

secondly, it may change the policy decisions inherent in

a master plan if sufficient studies have been done (Cf.,

Nottingham Village, Inc., v. Baltimore County, 266 Md.

339 (1972)). It is the Court’s pon. wl that even if the

new zoning did not conform to the Master Plan,

sufficient studies were done to support enactment of

the Sectional Map Amendment.

The Court holds that the zoning action here meets

the most important of the indicia of comprehensiveness

as set forth in Grooms v. LaVale Zoning Board, supra.

In addition, there is no question that this map

amendment is designed to control and direct the use of

land and buildings according to present and planned

future conditions.

The appellants have failed to meet their heavy

burden of overcoming the presumption that this

84a

comprehensive rezoning is valid on the record as it

stands, absent cross-examination of witnesses. (See Part

VII of this opinion.) The Court therefore finds that the

action of the District Council in adopting Sectional Map

Amendment Application No. F-947 was not arbitrary,

capricious or whimsical, and that it is valid comprehen-

sive rezoning.

DID THE PLANNING COMMISSION AND THE DIS-

TRICT COUNCIL ACT WITHIN STATUTORY AUTHOR-

ITY?

The zoning authority of the District Council is

derived from Article 25A Section 5(X) and Article 66B,

Annotated Code of Maryland. The Regional District Act

is set forth in Chapter 85 of the Montgomery County

Code. It is the contention of the appellants that since

the Planning Commission had no specific statutory

authority to adopt sector plans the District Council had

no power to approve a sectional map amendment

which, in effect, enacted that sector plan.

Section 85-11, Montgomery County Code (1972 —

Ed.), gives to the Planning Commission

“the right to exercise all powers and functions

granted to it in this chapter.”

Among the powers specifically granted are the powers

to make and adopt general and local master plans, to

make amendments thereto, and to propose zoning laws.

See Section 85-63(b). The appellants maintain that

because there is no express provision for the adoption

of sector plans by the Planning Commission there is no

such authority. This view of the Planning Commission’s

function and powers is unduly narrow. The provisions

85a

of the Regional District Act noted above give to the

Planning Commission, by implication, the authority to

make and adopt sector plans as amendments to local

master plans. A sector plan, like a master plan, is only a

recommendation which need not be adopted or

followed by the District Council. The Commission acted

well within its authority in recommending proposed

zoning changes.

The appellants’ argument that the zoning process is

somehow perverted by a total lack of coordination

between the Sector Plan and Master Plan has no bearing

on the authority of the Planning Commission to

propose a sector plan as an amendment to the zoning

map. Section 85-78(b) provides that, prior to the

adoption of a map amendment by the Council, the

application must be first submitted to the local

Planning Board for suggestions. The obvious purpose of

these provisions is to insure proper study of any map

amendinent application before adoption, thus maintain-

ing fairness to all concerned and preventing hasty or

arbitrary action by the Council. The fact that this

required recommendation happens to be called a sector

plan does not invalidate the District Council’s actions.

It is a recommendation required by law, but does not

bind the District Council. The Court is of the opinion

that both the Planning Commission and the District

Council acted within their statutory authority.

86a

IS THERE AN ILLEGAL DELEGATION OF AUTHOR-

ITY FROM THE DISTRICT COUNCIL TO THE PLAN-

NING BOARD? —

The appellants’ contend that there is an improper

delegation of the legislative authority to zone from the

District Council to the Montgomery Ccunty Planning

Board.* There is no question that the District Council,

or any legislative body, may delegate certain of its

powers to subordinate agencies for the purpose of

carrying into effect an ordinance, provided that the

guidelines and standards established are of a clear and

sufficient nature. The appellants contention is that

under the enabling legislation the District Council alone

is authorized to zone and that the ordinance in

question delegates to the Planning Board the entire

zoning authority.

As noted earlier in this opinion each of the CBD

zoning categories imposed on the subject property by

the Sectional Map Amendment provides two methods

by which property may be developed — a standard

method and an optional method. Under the standard

method of development every property owner has the

right to develop his property in accordance with certain

designated densities (measured by F.A.R.), height limits,

lot coverages, and open space and setback requirements.

This is, of course, Euclidian type zoning. No one has

contended that the limitations imposed are not a proper

subject for the exercise of the zoning authority. There

are no site plan review requirements.

*The Montgomery County Planning Board consists of those

members of the Planning Commission appointed from Mont-

gomery County.

87a

The optional method of development allows greater

density of usc, provided that certain strict requirements

are met. The stated purpose is to provide certain public

amenities and facilities not otherwise available. This

purpose is accomplished through provision for optional

method of development application approval, and

through extensive and detailed site plan review. (See

Zoning Ordinance, Sections 31.2 and 31.3, respec-

tively.) The decision of the Planning Board with regard

to optional development is final and there is no

statutory provision for appeal.

Appellants and appellees alike have conceded that the

optional development method is in the nature of a

floating zone. The elements of a floating zone are set

forth in Bigenho v. Montgomery County Council, 248

Md. 387 (1968). The elements are that the use must be

compatible with the surrounding neighborhood, must

further the purposes of the proposed reclassification,

and that special precautions must be applied to insure

that there will be no discordance with existing uses. In

the present case it cannot be seriously contended that

all of these elements are not present. One of the earliest

Maryland cases on floating zones, Huff v. Board of

Zoning Appeals, 214 Md. 48 (1958), said the following:

“It is clear that Manufacturing, Restricted classifi-

cation is analogous to a special exception, and the

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 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

88a

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.”

The rule of Huff supra, and other cases cited by

appellants and appellees is that, given the fact that the

legislature has predetermined the compatibility of uses,

and absent any fact or circumstance in a particular case

which would change this presumptive finding, this use

must be allowed by the administrative body. The

District Council has predetermined that the uses set

forth in the CBD zones under the optional method of

development are compatible with surrounding land uses

and with the general welfare. It is the Court’s opinion

that there are sufficient guidelines to aid the Planning

Board in its administrative decision as to whether or

not an application for optional method of development

under a CBD zone meets the requirements set forth.

The appellees contend that, given sufficient guide-

lines, the entire legislative authority may be delegated.

For this proposition they rely on the cases of Clark v.

County Commissioners for Carroll Caunty, 270 Md.

343 (1973), and Prince Georges County v. M & B

Construction Co., 267 Md. 338 (1972). These cases are

easily distinguished in that there is specific statutory

authority for the Planning Commission to approve

subdivision plats as they did in those cases. Here there

is no specific legislative authority to delegate the entire

zoning function to the Planning Board. In the absence

of statutory authority permitting delegation of the

entire zoning function or a part thereof, the optional

method of development would necessarily have to be

approved by the Planning Board when the guidelines set

89a

forth by the District Council have been met. In the

present case upon examination of Section 31.2(e) of

the Zoning Ordinance, one finds extensive guidelines by

which the Planning Board is to guide its conduct in

either approving, approving with modifications, or

disapproving applications for optional method of

development. Subsection (e)(3) provides that the

applicant has the burden of going forward with the

evidence and the burden of persuasion on all questions

to be determined by the Planning Board. The crux, and

indeed the failure, of this ordinance lies in subsection

(e)(4), which reads as follows:

“The fact that an application complies with all of

the specific requirements and purposes of the

applicable zone shall not be deemed to create a

presumption that the application shall be ap-

proved.” (emphasis added)

All of the cases cited by appellees supporting their

position on this issue concern the exercise of discretion

by administrative bodies. Where those cases differ from

the issue at hand is that in every case cited a denial

may be premised upon the absence of certain factors.

However, where these factors are not absent the

administrative board has no discretion — they must

grant the application. Tighe v. Osborne, 150 Md. 452

(1926), is in point. There the City of Baltimore

delegated to the Zoning Commissioner the right to deny

“Use” permits if, in his discretion,

“the proposed buildings or structures, use, or

changes of use would create hazards from fire or

disease or would menace public security, health or

morals.” 150 Md. at 456.

90a

The Commissioner was also given guidelines upon which

to make this determination. The delegation of authority

and the sufficiency of the guidelines both were upheld:

“It is thus apparent that the ordinance does not

vest unlimited discretion in the Zoning Commis-

sioner. He cannot refuse a permit unless building

or its proposed use would menace the public

security, health or morals. He is required to secure

information about and give consideration to all the

matters just enumerated in reaching a decision; and

finally, he is bound by numerous decisions of this

court as to what does and does not bear a

substantial relation to the public security, health

or morals. 150 Md. at 458. (emphasis added).

In this case, the Planning Board exercises a delegated

power to determine densities and certain open space

requirements, which is analagous to the power exercised

in Tighe, supra, i.e., the power to deny certain uses of

property. Generally, a legislative body may not delegate

its entire function, thereby divesting itself of the

ultimate decision making authority. There appears to be

no case in Maryland that allows such a delegation of

power in the absence of specific statutory authority.

The Court is of the opinion that the guidelines are at

least as extensive and specific as the guidelines in Tighe,

and, in fact, they are more detailed. In the Tighe case,

the discretion of the Zoning Commissioner was limited

to denial of use only if he made a factual determination

of noncompliance. In the case at hand even though an

application for the optional method of development

may conform exactly to the requirements set forth in

the Zoning Ordinance and the Sector Plan, the Planning

Board, under Section 31.2(e)(4), may deny the

application. This an improper delegation of the entire

zoning authority.

9Sla

Appellees contend that the question of optional

zoning is not before the Court in this appeal because

none of the property owners have, as yet, applied for

the optional method of development. That statement

may be correct when considering the immediate effect

on the respective properties with regard to whether or

not the Ordinance creates conditional zoning at this

time. However, the issue here deals with the validity of

the Zoning Ordinance in its entirety. Usually, matters

relating to invalidity of ordinances and statutes, and

constitutional authority to enact them, may not be

collaterally raised in zoning appeals, but such matters

may be raised when they directly affect the appellants

as in this case.

Section 1-4, Montgomery County Code (1972 Ed.),

states as follows:

“The provisions of this code are severable and if

any provision, sentence, clause, section or part

thereof is held illegal, invalid or unconstitutional

or inapplicable or any person or circumstances

such illegality invalidity or unconstitutionality or

inapplicability shall not effect or impair any of the

remaining provisions. .. .”

The Court holds that Section 31.2(e)(4) of the Zoning

Ordinance effects an illegal delegation of legislative

authority to the Montgomery County Planning Board,

but that it is severable and does not invalidate the

entire ordinance. The action of the County Council in

approving that subsection is declared improper and

without force of law.

92a

IV.

DOES THE SECTIONAL MAP AMENDMENT CONSTI-

TUTE CONDITIONAL ZONING?

The appellants argue that the floating zones found in

the CBD optional methods of development are

conditional zoning by virtue of the manner in which

they are imposed. The argument is that the Planning

Board does not determine the compatibility of the

floating zone use with existing uses but dictates or

forces compatibility through its demands in the site

plan review process. The appellants maintain that those

exactions will vary from property to property. This,

they assert, is conditional zoning which is impermissible

in Montgomery County. See Montgomery County v.

National Capitol Realty Corp., 267 Md. 364 (1972);

Bayliss v. Mayor and City of Baltimore, 219 Md. 164

(1959); and Wakefield v. Kraft, 202 Md. 136 (1953).

The Montgomery County Zoning Ordinance, Section

207(d) states:

“No application for a local or a sectional or a

district plan map amendment shall be approved

conditionally for the erection on the land of a

structure at a p

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