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Mayor and Council of Rockville v. Pumphrey

Court of Special Appeals of Maryland

July 31, 2014


Eyler, Deborah S., Wright, Rodowsky, Lawrence F. JJ.

Woodward, J., did not participate in the argument or the decision in this case.


Eyler, Deborah S., J.

This appeal arises from two actions for judicial review filed in the Circuit Court for Montgomery County. In each case, William Pumphrey, on behalf of the Robert A. Pumphrey Funeral Home, and RAP Leasing Corporation ("RAP") (collectively "Pumphrey"), the appellees, were the petitioners. In the first action for judicial review, Pumphrey challenged a text amendment to the City of Rockville's zoning ordinance enacted by the Mayor and City Council of Rockville ("Mayor and Council" or "the City"), an appellant, which eliminated language permitting the expansion of off-street parking for certain nonconforming uses within Rockville ("the text amendment case"). Pumphrey alternatively sought mandamus relief against the City. In the second action, Pumphrey challenged a decision of the City of Rockville Planning Commission ("the Planning Commission"), an appellant, denying his final record plat application for the consolidation of two adjacent parcels into one lot ("the plat case").

The circuit court denied the City's motion to dismiss the text amendment case, granted Pumphrey's motion to consolidate the two actions, heard argument, and ruled that the text amendment to the zoning ordinance was invalid because the City acted arbitrarily and capriciously in enacting it. The circuit court further ruled that the Planning Commission's decision to deny Pumphrey's final record plat application was arbitrary, capricious, and unsupported by substantial evidence in the record. The circuit court reversed and vacated the text amendment enacted by the City; ordered a prior text amendment to be reinstated; and reversed the Planning's Commission's order denying the final plat application.

On appeal, the City and the Planning Commission present four questions for review, which we have rephrased:

I. Did the circuit court err by concluding that the enactment of the text amendment was a quasi-judicial act, and not a purely legislative act, and in denying the City's motion to dismiss on that basis?
II. Did the circuit court err by reversing the decision of the Planning Commission in the plat case?
II. If the Planning Commission erred, was the circuit court obligated to remand the plat case to the Planning Commission for further proceedings?
IV. Did the circuit court err or abuse its discretion by consolidating the text amendment case and the plat case?

For the reasons to follow, we conclude that the circuit court erred by denying the City's motion to dismiss the text amendment case and by reversing the decision of the Planning Commission in the plat case. We shall vacate the circuit court judgment and remand with instructions that it enter orders dismissing the text amendment case and affirming the decision of the Planning Commission. Our resolution of these first two issues obviates the need to address the third and fourth issues.


Since 1930, the Robert A. Pumphrey Funeral Home, f/k/a Pumphrey's Colonial Funeral Home ("Funeral Home"), a family-run business, has operated out of a three-story house located at the corner of West Montgomery Avenue and Williams Street in the West End neighborhood of Rockville.[1] The Funeral Home's address is 300 West Montgomery Avenue and it fronts on that road. In 1977, RAP, a corporate entity owned and operated by the Pumphrey family, purchased the property.

The lot next door, 304 West Montgomery Avenue ("the adjoining parcel"), was purchased by the Pumphrey family in 1961. At that time, it was improved with a large house. The house was demolished in 1970. Since then, the adjoining parcel has been open lawn with a perimeter of screening vegetation between it and a neighboring residential property at 306 West Montgomery Avenue. RAP also is the record owner of 304 West Montgomery Avenue.

The Funeral Home has been a nonconforming use since August 3, 1932, when the first zoning ordinance governing the property was adopted. Presently, it and the adjoining parcel are zoned R-90 HD, Single Unit Detached Dwelling Restricted Residential, Historic District.

The Funeral Home has 17 off-street parking spaces available for visitors, all of which are located in its backyard. Two of the spaces are enclosed in a one-story garage. The other 15 spaces are on an open, paved lot. Access to the parking lot is from a driveway off of Williams Street. When, as is often the case, the parking lot is full, visitors park on Williams Street and other nearby residential streets. For some time, this practice has resulted in complaints from neighbors.

A. The 2010 Text Amendment

In 2010, Pumphrey began to investigate expanding the existing parking lot for the Funeral Home onto the adjoining parcel. City officials informed him that the zoning ordinance prohibited the expansion of nonconforming uses except in very limited circumstances not applicable to the expansion of a parking lot. City officials also informed Pumphrey that he could pursue a text amendment to the zoning ordinance to permit such an expansion.

At all relevant times, the City's zoning ordinance ("the Ordinance"), which is codified at Chapter 25 of the Rockville City Code ("RCC"), and Md. Code (1957, 2010 Repl. Vol.), Article 66B ("art. 66B"), [2] governed the procedure for text amendments. As pertinent here, section 25.06.02 provides that "any interested person or governmental agency" may file "[a]n application for an amendment to the text of [the Ordinance]." RCC § 25.06.02.b.1. The application must be submitted to the City Clerk on a form provided by the City's Chief of Planning and be accompanied by a filing fee as determined by the Mayor and Council. RCC § 25.06.02.b.2. The City Clerk must transmit the proposed text amendment to the Planning Commission within five days of receipt of an application. RCC § 25.06.02.d.1. The Planning Commission "may submit a written recommendation to the Mayor and Council." Id. If it does so, its recommendation becomes part of the record upon the Mayor and Council's consideration of the text amendment. Id.

An application for a text amendment may not be granted unless a public hearing is held by the Mayor and Council. RCC § 25.06.02.f.; art. 66B, § 5.03(c)(1) (before a local legislative body may adopt a regulation, it must hold a public hearing). Before such a hearing, notice of the proposed amendment must be published in "a newspaper of general circulation." RCC § 25.06.02.c; art. 66B, § 5.03(c)(2). After notice and a public hearing, the Mayor and Council may grant a text amendment "by ordinance" or may deny, dismiss, or allow the withdrawal of the text amendment. RCC § 25.06.02.g.1.

On June 24, 2010, in accordance with these provisions, Pumphrey filed with the City's Department of Community Planning and Development Services ("Department of Planning") an "Application for Text Amendment" ("the 2010 Application"), with a $3, 000 application fee. The 2010 Application was designated TXT2010-00228 by the City Clerk.

The application sought to amend "[e]xisting [t]ext" to "allow expansion of parking of a long standing nonconforming use in a single dwelling unit residential zone." Specifically, Pumphrey sought to amend Section 25.08.05 of Article 8 of the Ordinance, which governs nonconforming uses in Single Dwelling Unit Residential Zones, to add a new subsection "d." As proposed by Pumphrey, the new subsection would read:

Additional Off-Street Parking - Where a nonconforming use in a Single Dwelling Unit Residential Zone has been in continual existence on a lot since prior to August 3, 1932, off-street parking for the nonconforming use may be altered, expanded, or enlarged on the lot and/or on an adjacent lot in accordance with the requirements of Article 16 and the Landscaping, Screening and Lighting Manual.

The 2010 Application was forwarded to the Planning Commission for review. On September 17, 2010, the Chief of Planning filed a staff report recommending that the Planning Commission recommend denial of the 2010 Application for two reasons: 1) a general policy against expansion of nonconforming uses and 2) potential adverse impacts on adjoining residential properties. The staff report explained that the purpose of the proposed amendment was to "facilitate the continuation of the nonconforming use [of the Funeral Home] by expanding the off-street parking onto the adjoining lot at 304 West Montgomery Avenue, " which, it noted, would bring the nonconforming use into closer conformity with development standards by adding 32 off-street parking spaces. Alternatively, the staff report recommended revision of the proposed text amendment to limit its applicability to nonconforming uses in the R-90 zone that were in existence in 1932, when the City first adopted a zoning ordinance. The staff report emphasized that Pumphrey would be required to consolidate its two properties so that the parking was on the same lot as the use being served.

The Planning Commission considered the 2010 Application at a meeting on September 29, 2010, and voted three to two to recommend to the City and Council that the text amendment be denied. The Historic District Commission ("HDC") conducted a courtesy review of the 2010 Application and also voted to recommend that it be denied.

On October 25, 2010, the Mayor and Council convened for a public hearing on the 2010 Application. The Zoning Administrator introduced the proposed text amendment, explaining that its purpose was to "allow for the expansion of [off] street parking in connection with a [non]conforming use in existence before August 3, 1932, " which, he noted, was "a funeral home located at 300 West Montgomery Avenue." He informed the Mayor and Council that the Planning Commission and the HDC had recommended denial of the text amendment. He took questions. Council members asked for some general information about nonconforming uses and about what would happen to the Funeral Home if the text amendment were denied. They also asked what would happen if the Funeral Home were sold or ceased operation. The Zoning Administrator explained that, under the Ordinance in its then current form, if a nonconforming use ceased for a period of three months or more, it would lose its status as a lawful nonconforming use. Moreover, if the Pumphrey family were to sell the 300 West Montgomery Street property and the new owners did not wish to continue the funeral home use, the property would revert to a residential use.

With respect to the effect of the proposed text amendment, the Zoning Administrator described it as being "fairly general" and opined that there could be a "few other nonconforming uses elsewhere in the city" that the change might affect. This was why the staff report had recommended "tightening the language up" to include only nonconforming uses in existence since 1932 in an R-90 zone. According to the Zoning Administrator, if the proposed text amendment were altered in that way, it would apply only to the Funeral Home.

Following the presentation by the Zoning Administrator, individuals and representatives of organizations were allowed to speak. Pumphrey's lawyer spoke first. She stated that the proposed text amendment was designed to allow the Funeral Home to expand its parking lot onto the adjoining parcel to alleviate on-street parking congestion on Williams Street. She explained that the text amendment was drafted narrowly, so as not to affect other properties, and that Pumphrey did not object to the even more narrow language proposed by the planning staff. She asked the Mayor and Council not to be swayed by those who were arguing that this was a "black and white" issue of expansion of a nonconforming use. She urged them to consider that the Funeral Home was both a nonconforming use and a community landmark. She also asked the Mayor and Council to consider the impact on the residents of Williams Street, who were outside of the historic district and were bearing the brunt of the lack of adequate parking for the Funeral Home. Finally, she suggested that one of the concerns voiced by the planning staff -- that the expansion would require combining the lots at 300 and 304 West Montgomery Avenue, which would result in a large lot that might never revert to a residential use -- could be alleviated if the Mayor and Council would permit the parking expansion to be on the adjoining parcel without the lots having to be combined.

William Doggett, an architect hired by Pumphrey to design the parking lot, spoke next. He stated that the expanded parking lot would be constructed from a pervious material, that it would be "fully screened" with landscaping, including trees blocking its view from West Montgomery Avenue, and that it would be lit with three foot high bollards that "cast a shallow pool of light." He displayed renderings of the proposed parking lot. He was asked several questions about the design, including whether he had considered the impact of car headlights on the property owners at 306 West Montgomery Avenue. He replied that there is an existing seven-foot high wall at the property line between 304 West Montgomery Avenue and 306 West Montgomery Avenue.

Pumphrey spoke briefly as well. He advised the Mayor and Council that he intended to do whatever was necessary to mitigate any negative impacts on neighbors caused by the planned parking lot expansion. He emphasized the great need for more parking and that the proposed text amendment was designed to affect only his properties.

Four neighboring property owners, including Meg and Phil Bowen, the owners of adjacent property at 306 West Montgomery Avenue, spoke in opposition to the text amendment. Another four neighboring property owners, three of whom live on Williams Street and one who lives in the house directly across the street from 304 West Montgomery Avenue, spoke in support of the text amendment. The president of the West End Community Association gave a statement explaining that because community opinion on the proposal was so mixed, the association had decided not to take a position on the text amendment. A spokesperson for the HDC spoke and explained its reasons for opposing the text amendment.

At the conclusion of the public hearing, the Mayor and Council decided to keep the record open for two more weeks before deliberating on the proposed text amendment.

The Mayor and Council reconvened for public deliberations on November 15, 2010. Those supporting the amendment took the position that the safety of pedestrians and residents of the neighboring properties on Williams Street would be improved by moving the parking off-street. They also emphasized that the Funeral Home is an historic use in the neighborhood. The opposing members expressed concern about approving an expansion of any nonconforming use and that the expansion here would result in a parking lot on a vacant lot, making it less likely that the lot would revert to a residential use at some point in the future. Ultimately, the Mayor and Council voted three to two to support the amendment. The Mayor and one council member opposed and the remaining three council members voted in favor of the amendment.

On December 13, 2010, the Mayor and Council reconvened and adopted Ordinance 22-10, which we quote in pertinent part:

WHEREAS, William A. Pumphrey . . . filed [the 2010 Application] for the purpose of amending [the Ordinance] to allow the expansion of parking in connection with a nonconforming use in a single dwelling unit residential zone; and;
WHEREAS, the Planning Commission reviewed the proposed text amendment . . . and recommended denial of the application as set forth in a memorandum to the Mayor and Council . . .; and
WHEREAS, pursuant to Article 66B of the Annotated Code of Maryland, the Mayor and Council . . . gave notice that a hearing on said application would be held . . .; and
WHEREAS, on October 25, 2010, said application came on for hearing . . .; and
WHEREAS, the Mayor and Council having considered the text amendment application and the entire file pertaining thereto, said Mayor and Council having decided that the granting of this application, as amended, in the form set forth below, would promote the health, safety and welfare of the citizens of the City of Rockville.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF ROCKVILLE, MARYLAND, that Text Amendment Application No. TXT2010-00228, be, and the same is hereby, granted, as amended, by amending Article 8, "Transitional Provisions, Nonconformities, Nonconforming Alteration Approval, " by adding a new subsection d. to Section 25.08.05 of Chapter 25, "Zoning" as follows:

25.08.05 – Nonconforming Uses

d. Additional off-street parking. Where a nonconforming use has been in continual existence in the R-90 Zone within the City since prior to August 3, 1932, off-street parking for the nonconforming use may be altered, expanded or enlarged in accordance with the requirements of Article 16 and the ...

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