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Montgomery County v. Ertter

Decided: January 30, 1964.

MONTGOMERY COUNTY, MARYLAND ET AL.
v.
ERTTER ET UX.



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

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

Marbury

Authorized by Section 72-85 of the Montgomery County Code (1960) the appellants, Montgomery County and the County Council of that county sitting as the district council, ask us to review an order of the Circuit Court for Montgomery County reversing the decision of the district council. By resolution duly passed, the district council had denied a zoning application of the appellees, Mr. and Mrs. Frank Ertter, which requested rezoning of a tract of land from R-R (rural residential) and R-90 (one-family detached residential) zones to R-20 (multiple-family medium density residential). The appellants on this appeal raise two interrelated questions which we shall treat together. Combined they are: From the evidence of record, was the decision of the district council fairly debatable and, if so, did the circuit court substitute its judgment for that of the council in its appellate review of the council's action denying the rezoning requested.

The property sought to be rezoned, some 7.4 acres, is situated immediately outside the corporate limits of Rockville. It appears as a long narrow strip of land running in a northwesterly direction from Norbeck Road. Its shape resembles a meat cleaver with the butt of the "handle" sixty feet wide touching the road and extending for about four hundred and

sixteen feet from the road, where the "handle" widens to about one hundred and sixty feet for a distance of about two hundred and eighty-nine feet, then the "blade" widens to approximately three hundred and fifty feet for a distance of about seven hundred and fifty feet. The longest dimension of the property is the top of the "cleaver", including the "handle", which is the easternmost boundary of the property and which is about fourteen hundred feet long.

Stipulated by the parties in the circuit court was the following zoning information: "The Master Zoning Atlas effective January 1, 1954, reveals that subject property was classified as 'R-A', residential agricultural, which permitted one single family dwelling to each 20,000 square feet of land. At that time it was under the jurisdiction of the Upper County Planning Commission. When the Upper County Planning Commission was abolished in 1958 the same classification was retained. However, being designated as 'R-R', rural residential, one single family dwelling to each 20,000 square feet of land."

The tract in controversy is bounded on the north, east and west by land in the R-R zone and to the south is land zoned R-90. Generally to the southwest and abutting a portion of the subject tract is the Rockville Cemetery. Between the cemetery and the "handle" of the parcel is the United States Army Reserve Training Center (armory), a permitted use in the R-R and R-90 zones. The land to the north and east of the property is undeveloped and is zoned R-R.

A master plan of zoning and highways for the Upper Rock Creek Watershed was adopted by the Maryland-National Capital Park and Planning Commission (Planning Commission) on April 26, 1961, as a part of the General Plan for the physical development of the Maryland-Washington Regional District within Montgomery County. This plan recommended the R-R and R-90 zones for this controversial tract.

At the public hearing on the zoning application held February 8, 1960, four people testified on behalf of the appellees: Mr. Ertter, one of the appellees; their attorney; the attorney for an adjoining landowner; and a land planner, Mr. Sanders. The gist of the testimony was that the request for rezoning was predicated primarily and essentially upon the fact that the presence

of the armory, together with its attendant activity, had so changed the character of the immediate neighborhood that rezoning was in order. Mr. Ertter testified that he had purchased the property in January 1957 to develop for single-family homes in the $20,000 to $22,000 price range, and that the property was so suited at the time of his purchase. Subsequent to his purchase of 8.49 acres in 1957 one acre of his property was condemned by the United States government and the armory building, with an attendant motor shed was constructed and a portion of the government tract was paved. He stated that he would not now risk the capital in building residences on his property because he thought that prospective purchasers would be reluctant to buy a house so near the armory.

There was also testimony as to a hospital in the vicinity and a swimming pool. The hospital referred to is the Easter Seal Treatment Center for Crippled Children. Very little testimony concerning the swimming pool is contained in the record. ...


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