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Kaslow v. Mayor and Council of Rockville

Decided: July 27, 1964.

KASLOW ET AL.
v.
MAYOR AND COUNCIL OF ROCKVILLE, MD.



Appeal from the Circuit Court for Montgomery County (ANDERSON, J.).

The cause was argued before Brune, C.J., and Hammond, Prescott and Horney, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.

Brune

BRUNE, C.J., delivered the opinion of the Court.

The appellants, Kaslow and Rocks, as contract purchasers of 42.252 acres of land in the City of Rockville known as the Hampton Jones tract, filed an application in November, 1961, with the Mayor and Council of Rockville (the City) for the rezoning of this tract from the R-S (Residential Suburban)

classification to the R-30 (Multiple Family Residential, permitting apartment use) classification. After a hearing the City denied the application. The applicants first took an appeal to the Circuit Court for Montgomery County on the law side, but in view of the absence of any provision in the Rockville Zoning Ordinance for such an appeal the case was transferred at their request to the equity side of the Court. They then filed a bill against the City seeking: (a) a declaration that the resolution adopted by the City denying their application was null and void; (b) a mandatory injunction commanding the City to grant their application; (c) a prohibitory injunction enjoining the City from interfering with their use of the property for such uses as are permitted under the R-30 classification; and (d) general relief. The Circuit Court (Anderson, J.) dismissed the bill and the applicants appeal.

The appellants state two questions as presented by this appeal: first, whether the City's denial of an application to rezone must be supported by competent, material and substantial evidence; and second, whether the denial of their application was not supported by such evidence and therefore was arbitrary, capricious and illegal. The appellee appears to concede that action by a zoning body not founded upon any substantial evidence is not in accordance with law and may be set aside by a court, citing Montgomery County v. Ertter, 233 Md. 414, 419, 197 A.2d 135, 137, but claims that the rule of Board of County Commissioners of Prince George's County v. Oak Hill Farms, 232 Md. 274, 192 A.2d 761, which requires substantial evidence on the record as a whole to support zoning action (in that case the denial of an application) is not applicable. We see no conflict between Ertter and Oak Hill, and the distinction sought to be drawn by the appellee seems to be of no moment here. The appellee rests its defense of its refusal of rezoning primarily on the existence of substantial evidence to sustain its action. In Montgomery County v, Kaslow, 235 Md. 45, 200 A.2d 184, we reaffirmed the rule of Hedin v. Board of County Commissioners of Prince George's County, 209 Md. 224, 236, 120 A.2d 663, 668, that the Board could not base its action on the personal opinion of a member without support in the evidence for that opinion, and held that if the action of a

district council in denying rezoning were based, to any meaningful extent, upon evidence not before it of record, its decision would not be in accordance with law.

The application here was set for hearing before the Mayor and Council on February 20, 1962, but was continued to May 21, 1962, when it was heard. At the hearing the applicants offered the testimony of several qualified experts in support of their application. Their plan, to which they sought to bind themselves by a contract with neighboring landowners, contemplated four large, high grade apartment buildings with a total of 610 units and a suitable number of parking spaces for automobiles. They proposed to preserve many of the trees in the area and to adapt their buildings to the terrain. The only opposition to the application presented at the hearing was a report of the Rockville Planning Commission recommending that the application be denied. The appellants' counsel (who was a party to the agreement above mentioned) spoke as a nearby resident, as well as in his capacity as counsel, in favor of the application. One other neighboring property owner, speaking for himself and other members of his family, owning altogether about ninety-five acres, favored the application and expressed the view that the proposed apartments "might be better than other possible alternatives." The owners of another neighboring property later submitted a letter of protest, asserting that seven-story apartments were not needed in the neighborhood and were completely out of character with single family dwellings which were predominant in West Rockville.

The tract in question lies to the west of the center of Rockville at the intersection of State Route 28 (Montgomery Avenue) and Interstate Route 70-S (the Washington National Pike). Route 70-S is a major highway; Route 28, though important, is not wide west of Route 70-S. Route 70-S runs generally north and south (actually closer to north northwest and south southeast, or in terms of a clock face on an 11 o'clock-5 o'clock axis). Route 28 runs generally east and west. East of the intersection it runs a little south of due east; just to the west thereof it takes a decided turn to the northwest for about a half mile until it crosses the Rockville City limits and then turns more nearly west. The result is that the "southwest quadrant"

of the intersection of Routes 28 and 70-S is nearly a semicircle extending to the northwest as well as to the southwest of the intersection within the area covered by the Proposed Land Use Map dated September, 1960 included in the Master Plan Report submitted by the Planning Commission of the City of ...


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