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County Council for Montgomery County v. Gendleman

Decided: February 14, 1962.

COUNTY COUNCIL FOR MONTGOMERY COUNTY
v.
GENDLEMAN ET AL.



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

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

Brune

The appellees, the Gendlemans, applied to the County Council for Montgomery County, sitting as a District Council for that County, pursuant to Ch. 780 of the Acts of 1959, to rezone certain property owned by the appellees from a residential classification, R-60, to the commercial office classification, C-O. The Council denied the application, the appellees took an appeal to the Circuit Court for Montgomery County, and that Court held that the action of the Council was "arbitrary, capricious, discriminatory and therefore illegal" and accordingly reversed the decision of the Council. The Council appeals.

The principal question is whether the Council's action in denying the petition for reclassification fell within the realm of the fairly debatable or was, as the Circuit Court held, arbitrary, capricious and discriminatory.

The property in question consists of Lots 1 and 2 and a part of Lot 3 of Block K of what is known as Battery Park Subdivision, Section 2, in Bethesda, and contains 21,533 square feet. It has been zoned as residential since the inception of zoning in Montgomery County in 1927 and has remained vacant throughout the entire period since that time. Since the adoption of a new zoning ordinance and zoning maps covering the entire Maryland-Washington District within Montgomery County, which became effective January 1, 1954, the Gendleman property has been zoned as R-60 (one family, detached). It lies at the southern corner of the intersection of Glenbrook Road (running N.E.-S.W.) and Old Georgetown Road (running N.W.-S.E.).

Along or near Old Georgetown Road and to the southwest of it lie several Blocks in Battery Park. To the northwest of Lots 1-3 in Block K and across Glenbrook Road, is Block J, containing 28 lots zoned R-60. South of Block J and roughly southwest of the subject property is Block A. This is separated from Block K by Exeter Road and from Block J by Glenbrook Road which join about 300 feet west of Old Georgetown Road. Block A contains 9 lots, all zoned R-60. Also south of Block K are Blocks 3A and 3B, containing 18 lots, also zoned R-60. To the southeast of Block K and across

Del Ray Avenue is Block L, containing 19 lots. Of these 15 are zoned R-60. The other 4 front on Old Georgetown Road. The first, at the corner of that road and Del Ray Avenue, was reclassified as C-O in 1958; the other three are zoned C-2 (General Commercial). All of Block K, with the exception of Lot 8 (which had been reclassified as C-O in 1958) was zoned R-60, at the time of the Council's action on the appellees' present application. All of Block K, except the Gendleman property and Lot 8 has been developed residentially, including the four lots -- Nos. 4-7 -- fronting on Old Georgetown Road between the Gendleman tract and Lot 8. In general the other Blocks in Battery Park referred to above and zoned R-60 have been developed residentially and are so used. Some few of the houses are occupied by physicians who have offices in their homes, and there is also in the immediate vicinity the Battery Park Club, a community project located in what was a residence, which has tennis courts on its property.

Across Old Georgetown Road from the Gendleman property and generally to the east of it is the so called "Woodmont Triangle," a commercial area so zoned and long so used, which is bounded on the east by Wisconsin Avenue, on the northwest by Glenbrook Road, and on the southwest by Old Georgetown Road. The western point of the Woodmont Triangle is a lot zoned C-O, directly across Old Georgetown Road from the Gendleman property.

In January, 1954, the Gendlemans filed an application for rezoning of their tract from R-60 to C-O, which was denied. In January, 1956, they filed another, on which the Council conducted a public hearing in March; but the Council did not act on the application until after it had received the recommendation of the Maryland-National Capital Park and Planning Commission (Park and Planning), which is the planning agency for Montgomery County. On June 13, 1956, Park and Planning adopted a master plan for streets and highways in the Bethesda business district and vicinity which contemplated widening Old Georgetown Road and making it a dual highway and also contemplated widening Glenbrook Road by ten feet. On the same day Park and Planning adopted a zoning

plan for the Bethesda business district and vicinity. This contemplated extending C-O zoning along the southwest side of Old Georgetown Road from Del Ray Avenue to Glenbrook Road by rezoning Lots 1-8 in Block K. In accordance with these highway and zoning plans, Park and Planning recommended to the Council on June 27, 1956, that the Gendleman application be granted, except as to 3747 square feet to be reserved for street widening. The Council, however, declined to follow this recommendation and rejected the application on August 7, 1956. An appeal from the 1956 decision to the Circuit Court followed. Judge Anderson found that the action of the Council was not arbitrary, capricious, discriminatory and illegal, and, on the contrary, that its action was "fairly debatable." He accordingly dismissed the complaint or appeal on January 26, 1959.

He took note of the fact that after the Council's denial of the Gendleman application, the Council had granted an application for the rezoning of Lot 8 of Block K from R-60 to C-O and observed: "It may well be that should the plaintiffs renew their application for [the] requested change in ...


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