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Montgomery County Council v. Kaslow

Decided : May 8, 1964.

MONTGOMERY COUNTY COUNCIL
v.
KASLOW ET AL.



Appeal from the Circuit Court for Montgomery County (PUGH and MOORMAN, JJ.).

The cause was argued before Brune, C.J., and Hammond, Prescott, Marbury and Sybert, JJ.

Hammond

HAMMOND, J., delivered the opinion of the Court.

On May 28, 1963, a month after a public hearing, the County Council of Montgomery County, functioning in the rezoning of an individual property, not in its ordinary legislative capacity but as a special statutory "District Council," adopted motions by a five to one vote that the County Attorney prepare an opinion and resolution for it to finally adopt at a later meeting granting applications for the rezoning of some one hundred acres of land (at Muddy Branch and Fields Roads about four miles from Rockville) from R. R. (rural residential) to R. 90 (9000 square feet lots, single family occupancy) as to forty-six acres, and to R. 20 or R. 30 (medium or low density apartment use) as to the remainder.

The opinion which the County Attorney prepared in obedience to the Council's direction said that (a) the Council disagreed with the view of the Planning Board that there should be no reclassification; (b) the master plan for the area was inadequate in not taking into account the inevitable population increase; (c) sewerage, roads and educational facilities were all fully adequate; and (d) "the property itself is ideal for the reclassifications proposed."

On June 4 the Council, at a regular meeting, deferred final action on the opinion and resolution which the County Attorney had presented to it. On June 11 the Council, again by a five to one vote, adopted a motion which instructed the Attorney

to draft an opinion and resolution denying the requested reclassifications. The opinion was prepared and it and the conforming resolution were finally adopted by a six to one vote of the Council on June 18, 1963. The adopted opinion said in essence that (a) the Planning Board had recommended denial of the application; (b) the master plan anticipated an influx of some forty thousand people into the area; (c) the proposed change would (seemingly undesirably) intensify the influx; (d) "there seems to be no immediate need for a change in the Plan to satisfy the needs of the employment centers which are springing up in this locale"; and (e) the Plan is only two years old and "no change or mistake has been shown by the applicant."

The amended petition of the applicants in their appeal to the Circuit Court from the June 18th action of the Council recited the matters detailed above, charged arbitrary, discriminatory, capricious and illegal actions by the Council, claimed that the record contained conclusive evidence of great change in the neighborhood and alleged that the actions of the Council were illegal for the further reasons that "they were not based on the evidence of record as required by the Zoning Ordinance for the Maryland-Washington Regional District for Montgomery County, and as required by law. On the contrary, said decisions were based upon reasons and considerations outside the record and for which there was no support in the record, and appellants were afforded no opportunity to refute the same."

The facts set out in support of the quoted allegations were: (1) that the President of the Council, the only one of its members who had voted on May 28 to deny the applications, did on June 4 (the day the applications normally would have been approved finally) lunch with an active real estate owner and developer of large holdings in the County and discuss the applications, instead of lunching with the other Council members and the Director of the National Capital Transportation Agency as he was scheduled to do; (2) at the meeting of the Council on the afternoon of June 4, final action on the applications was "deferred until next week" without explanation, "the real reason being to afford [the real estate owner-developer] an opportunity to convince the Council members that

their original decision, after all the evidence was in and the record was closed, was erroneous"; (3) that on the days following the luncheon, the owner-developer telephoned other members of the Council, telling them of his opposition to the proposed rezoning because it would hurt his holdings nearby (34 acres of which were in the R. 10, high density apartment use, classification), and also telling one Council member that he had "information" that the applicants were making "pay-offs" to obtain the rezoning and it would be risky for any member to vote for the rezoning lest he be accused of accepting a bribe; (4) that the charge of "pay-offs" was unfounded and false and intended to induce a vote against the rezoning; (5) that the owner-developer attended the June 11 meeting and did not leave until after the vote to deny the rezoning; (6) after adoption of the final resolutions denying the applications, the owner-developer attempted to buy the land in question.

The applicants for rezoning, the appellants in the Circuit Court, filed a notice to take the depositions of the members of the County Council, pursuant to Md. Rule 405a. The Montgomery County Council filed a motion to protect under Md. Rule 406a, claiming that the District Council sits in zoning matters in a legislative capacity and as legislators the members "are ...


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