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Kay Construction Co. v. County Council for Montgomery County

Decided: February 14, 1962.

KAY CONSTRUCTION COMPANY
v.
COUNTY COUNCIL FOR MONTGOMERY COUNTY ET AL.



Appeal from the Circuit Court for Montgomery County; Pugh, J.

Brune, C.J., and Henderson, Prescott, Marbury and Sybert, JJ. Sybert, J., delivered the opinion of the Court.

Sybert

This appeal questions the validity of an order of the Circuit Court for Montgomery County which sustained a finding by the County Council for that County, acting as a District Council, that there was "good cause shown" (as required by the Zoning Ordinance) in appellees' petitions for reconsideration of a previously adopted rezoning resolution. The rezoning would have allowed appellant to construct low density apartment houses on a tract of land owned by it. The Council granted the petitions for reconsideration and after a rehearing rescinded the rezoning resolution. The appellant makes the further point that the record does not sustain the Council's action rescinding the rezoning resolution.

The original application was filed by the appellant with the Council in December, 1958, requesting rezoning of approximately 12 acres of land located at the northwest corner of Viers Mill Road and Connecticut Avenue in Wheaton, from the R-60 Zone (single-family dwellings) to the R-20 Zone

(medium density, multi-family) or R-30 zone (low density, multi-family). The Council held a public hearing on February 11, 1959, at which extensive testimony was given by proponents and opponents in regard to the effect that the proposed rezoning would have on traffic, schools, and the neighborhood in general. The Council did not render its decision until November, 1959, granting by a four-to-three vote the rezoning of 8.5 acres of the 12 acre tract to the R-30 Zone (low density, multi-family), with certain set backs. It found from the evidence presented that there had been substantial change in the neighborhood since original zoning so as to warrant rezoning. It took note of the heavy traffic dual lane highway and intersection that the property borders as well as the fact that it faces, across Connecticut Avenue (extended), the semi-commercial telephone exchange building behind which is the only large development of R-40 semi-detached dwellings in the county, and that the Belair Swimming Club is located directly across Viers Mill Road from appellant's property. The Council also recognized the fact that it was denying the same requested zoning to two other tracts of land across Viers Mill Road from the subject property, pointing out that the problems involved with development of those properties had been solved. Finally, it took cognizance of the fact that appellant's property had been recommended for multi-family zoning by the Master Plan for Kensington-Wheaton, which had been adopted by the Planning Commission in the interim between the original hearing and the publication of the Council's resolution.

Opponents of the rezoning -- certain residents of the area and a citizens' association -- on December 31, 1959, filed two petitions for reconsideration of the resolution granting the rezoning. On the same day, one of the councilmen who had voted with the majority for rezoning resigned from the Council. When a later vote on the two petitions resulted in a three-three deadlock, the Council postponed its decision until the appointment of a new member. On March 1, 1960, after a new member was named, the Council by a four-three vote adopted a resolution which granted reconsideration and a rehearing

in regard to its original rezoning resolution, the new Council member voting for the resolution along with the three members who had opposed the rezoning. The resolution granting the reconsideration merely stated that the Council "finds for good cause shown that its decision should be reconsidered".

Section 107-41 of the Zoning Ordinance for the Maryland-Washington Regional District in Montgomery County (1955 ed.), now ยง 104-42, Montgomery County Code (1960 ed.), relating to petitions for reconsideration, states in part:

"The decision of the district council on any application for a map or text amendment shall be final except that a petition requesting reconsideration of the district council's decision on any application may be filed * * *. The petition may be granted by resolution of the district council for good cause shown and, if granted, the decision of the district council may be rescinded and the application thereafter by resolution of the district council approved, denied or dismissed with or without further hearing as may be required by law * * *." (Italics ours.)

On March 22, 1960, the rehearing was held and on April 12, 1960, the County Council by the same four-three vote adopted a resolution rescinding its original resolution rezoning the subject property for apartments and denying appellant's rezoning application.

Appellant appealed to the Circuit Court for Montgomery County, asking that the resolution granting reconsideration be set aside because no good cause had been shown for granting it; that the final resolution denying the application for rezoning be set aside, and that the original rezoning resolution be declared in effect. After a hearing the court remanded the case to the Council with the requirement that it set forth in an opinion what factors constituted "good cause shown" as required by the Zoning Ordinance as a condition for reconsideration. In the opinion which it ...


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