Montgomery co md ass-Maryland Pest Control Ass'n v. Montgomery County | Environmental Law Reporter

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Prince George's County, Md. Asz some situations, the existence or nonexistence of ripeness is a question of degree. In the Montgomery co md ass at bar, respondents especially the Commission urge application of the "authorizes but does not require" analysis employed by Ebersberger. Certiorari Granted June 27, The Court Montgkmery Special Appeals held that the action lacked ripeness. If proper procedures were not followed then there could be no valid plan and hence there could not be Mineral Resource Recovery zoning.

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CourtListener is a project of Free Law Project , a federally-recognized c 3 non-profit. We rely on donations for our financial security. Donate Now. Sign In Register. Filed: April 1st, Precedential Status: Precedential. Citations: A. Docket Number: , September Term, Author: Marvin H.

Paul A. McGuckian, Co. Drea, Jr. Counsel on the brief , Silver Spring, for appellees Maryland-Nat. Vincent J. Fuller Raymond W. Bergan, Judith A. Kyros, Jr. Stephen Z. Kaufman, Larry A. We shall here invalidate a Montgomery County zoning decision concerning density of residential development because that decision was made by the District Council through the planning process, rather than through the zoning process mandated by State law.

A county enjoys no inherent power to zone or rezone, and may exercise zoning power only to the extent and in the manner directed by the State Legislature. Crozier v. George's Co. The Regional District Act, Md. Code , Repl. By that section, the Legislature specifically defines zoning power to include the right to regulate "the density and distribution of population" and authorizes the District Council to exercise that power by "amend[ing] the text of the zoning ordinance and Moreover, the alternative argument, that the density decisions were not made by the District Council but were made by the Planning Board pursuant to a valid delegation of legislative power, is unavailing because of the breadth of the power involved and the failure of the District Council to establish sufficiently precise standards.

This plan recommended broad and innovative changes in the zoning text of Montgomery County, to be followed by dramatic zoning map changes that would directly affect one-fourth of the land in the County. The principal purpose of the plan was to preserve open space and agricultural land in the upper part of the County by restricting development of the land.

An important adjunct of the plan was the recommendation that Montgomery County adopt and implement a system of transferable development rights "TDRs" , to provide a form of compensation to owners whose rights to develop their properties would be significantly impaired by down-zoning, and to help ensure long term preservation of the agricultural use of the land. The concept of TDRs is simple and straightforward.

Ownership of land carries with it a bundle of rights, including the right to construct improvements on the land. These rights are subject to governmental regulation where reasonably required to accommodate public health, safety, or general welfare, and ordinarily these limitations of use may be imposed without the necessity of paying compensation to the land owner.

There may arise situations, however, where the limitation of use imposed for the public good inflicts an economic impact on the landowner that, while not confiscatory, is so substantial as to prompt the government to provide some type of compensation. Cases involving the preservation of scenic easements and historic or architecturally valuable landmarks, preserving as they do benefits to the public that are largely cultural or aesthetic, yet concentrating the burden upon relatively few, have moved government officials to find ways to compensate the affected property owners.

Maryland, recognizing the importance of agricultural land, and the efficacy of restricting the right to develop land as a means of accomplishing that objective, has developed a system for purchasing agricultural land preservation easements. See Md. Purchasing development rights with public funds is not the exclusive method of providing compensation, however.

Other jurisdictions have accomplished the desired objective by permitting the transfer of development rights from the burdened property to certain other properties in the political subdivision, and have given value to this right by permitting a greater than normal intensity of development of the transferee or "receiving" property.

See, e. Penn Central Transp. City of New York, U. Ct , 57 L. French Investment Co. City of New York. In accordance with the recommendations of the Agricultural Preservation Plan, the District Council amended various provisions of the zoning text to provide for a new Rural Density Transfer zone "RDT zone" having a base density of one single family dwelling unit for each 25 acres, and to create TDRs in favor of the owners of property placed in that classification.

Other amendments to the zoning text provide that if the owners execute a covenant not to develop their land at its base density, the TDRs can be transferred to any property within a properly designated receiving zone, and under certain circumstances can be used to increase by one dwelling unit per TDR the density of development of the receiving property. The text provides that any property in six designated single family residential zones [1] is eligible for designation as a receiving area for TDRs.

The actual designation of the properties that would constitute the "receiving zone," i. Section C The zoning text imposes no limitation on the ultimate density of development possible for a property placed in the receiving zone, but leaves this decision to the planning process as well. Thus, by General, Master, Sector or Functional Plan, the determination is to be made as to which single family residential properties will be placed in the receiving zone, and what limit of intensification of density will be assigned to each property so designated.

Finally, the zoning text provides that an owner of a designated receiving area property who wishes to intensify development through the use of TDRs must submit a preliminary subdivision plan and site plan detailing the proposed development of the property.

These individual plans must conform to the development standards of the zone permitting a density nearest to the TDR density designated by the Master Plan Amendment. Upon approval of the site plan and preliminary plan of subdivision, an easement is recorded in favor of the County, restricting development of the property or properties from which the TDRs were obtained.

In addition to making the zoning text changes recommended by the Agricultural Preservation Plan, the District Council adopted a sectional map amendment, down-zoning 88, acres of land to the RDT zone, and thereby creating nearly 17, TDRs.

Recent planning for the Avenel property has been accomplished through the Master Plan for the Potomac Subregion, which constitutes an amendment to the General Plan for the County. Consideration of the residential property within this subregion for inclusion in the TDR receiving zone was accomplished through the planning process generated by a proposed amendment to the Master Plan.

This amendment, ultimately adopted in September of , created 27 TDR receiving areas, 13 of which were within the Potomac-Cabin John planning area that embraces the Avenel property. Each receiving area has defined boundaries, and each area has been assigned a density increase limitation, represented in this amendment by the designations TDR-1 through TDR The receiving areas vary in size from 8.

The Avenel property was designated as a separate receiving area and assigned a density limit of TDR This would have permitted the use of TDRs to increase the permissible number of dwelling units from to [3]. In the amendment, however, the designation of the Avenel property as a receiving area was made contingent upon the property not being utilized for an Advanced Wastewater Treatment plant "AWT plant".

The amendment does not mention the possibility of construction of a golf course on the property. An additional amendment to the Master Plan for Potomac Subregion was requested, and after further studies and hearings a second amendment to that Master Plan was adopted in July of This amendment, which deals almost exclusively with the Avenel property, maintained the designation of the property as a TDR receiving area with a proposed optional density of TDR-2, but removed the condition relating to the AWT plant.

The TDR-2 designation allows development in accordance with the standards of the R zone, as opposed to the RE-2C zone in which the property is located.

The County zoning ordinance permits a density development of 2 dwelling units per acre in the RE zone, but only 0. Promptly upon the adoption of the amendment to the Master Plan, Rock Run sought approval for the TDR optional method of development of the property by filing a preliminary subdivision plan and detailed site plan. After extensive public hearings and certain revisions to the plans, the Planning Board approved the preliminary plan and site plans on October 4, Appellants' principal contentions were that the TDR ordinances violated the zoning uniformity requirement and improperly delegated zoning authority to the Planning Board.

Pursuant to petitions filed by Appellants and Appellees, we issued a writ of certiorari to the Court of Special Appeals before consideration by that court.

The principal questions presented by this appeal involve the validity of the process legislated by the District Council for the classification of properties within the TDR receiving zone and the determination of the density limitation that shall apply to each property within the zone. Appellants also present two questions relating to alleged procedural irregularities in the granting of the preliminary plan of subdivision and the approval of the site plan.

In view of the conclusion we reach concerning the substantive questions, we do not reach the procedural matters. Although important subsidiary questions are involved, Appellants' principal contentions are that the zoning authority was not validly exercised, either by the District Council itself or by any proper delegation of its authority, and that there is a lack of required uniformity within the zones designated as potential TDR receiving areas.

In our view, the questions are interrelated. If there has been a valid exercise of the zoning power, there is no lack of uniformity because the effect of what has been done has been to create subclassifications of zones that afford equal treatment to all properties within them.

On the other hand, if the District Council did not properly exercise or delegate its zoning authority, then the necessary zoning action is incomplete and there does in fact exist a lack of uniformity. Appellees present alternative arguments. First, they say there was no delegation of zoning authority because the final decisions concerning the classification of property within the TDR receiving zone and the maximum permitted density for each such property, were in fact made by the District Council, albeit through the vehicle of an amendment to the Master Plan.

Their alternative argument, offered in the event we find the District Council did not make the ultimate zoning determination, or did not lawfully do so, is that the Planning Board made those decisions pursuant to a valid delegation of zoning power.

We shall first address the question of whether the District Council validly exercised its zoning authority when it approved for adoption amendments to a master plan. As we have previously indicated, the Legislature has defined zoning power to include the right to regulate:. As this Court said in Malmar Associates v.

Board, Md. In Howard County v. Dorsey, Md. Similarly, in Mont. A third major premise is that the County enjoys no inherent power to zone or rezone, and may exercise that power only to the extent and in the manner directed by the Legislature. Thus, say Appellants, the classification and density decisions with respect to receiving area properties cannot be made by the adoption of a Master Plan because that plan is adopted by the Planning Commission and not the District Council.

Appellees counter by arguing that enabling and implementing legislation places ultimate control of the Master Plan in the hands of the District Council, and thus the District Council's approval of a Master Plan constitutes the legislative decision required for the exercise of zoning power. Appellants dispute this, contending the District Council is without the necessary authority to initiate or complete the planning process, and that in any event the planning process fails to afford due process to those who might be aggrieved by the decision.

Furthermore, they contend the enabling legislation that grants zoning power to the County specifically limits the manner of exercise of that power to the adoption and amendment of the zoning text and the accompanying zoning map. Because we agree with Appellants' contention that the enabling statute restricts the manner in which the District Council may exercise its zoning authority, we need not consider the question of procedural due process involved in the use of the planning process to effect a zoning decision.

We will note in passing, however, that the District Council may require the initiation of a Master Plan or of an amendment thereto; that at least one public hearing is guaranteed in the consideration of any Master Plan, following 30 days notice of the time and place of hearing given in at least one publication in a newspaper of general circulation in the County; and, that no master plan or amendment thereto can be adopted without the approval of the District Council.

We note also that under ordinary circumstances a hearing in this type of case would involve the determination of legislative rather than adjudicative facts, and thus there would be no requirement for a trialtype hearing. Compare Hyson v.

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CourtListener is a project of Free Law Project , a federally-recognized c 3 non-profit. We rely on donations for our financial security. Donate Now. Sign In Register. Filed: June 8th, Precedential Status: Precedential. Citations: A. Panel: Harry A. Cole , James F. Couch Jr. Eldridge , Lawrence F.

Judges: Eldridge, Cole, Rodowsky, Couch. William J. Chen, Jr. John F. McCabe, Jr. Alan M. Wright, Senior Asst. Paul A. McGuckian, Co. Kathleen Sheehy Charles G. Arthur S. Drea, Jr. Counsel and Jane E. Allan, Associate Gen. Capital Park and Planning Com'n in No.

Jane E. Counsel Arthur S. ORTH, Jr. It is in the nature of a floating zone. A prerequisite to adoption of that zone for any specific area is that the master plan for the area must designate the land as suitable for such a zone.

These two appeals involve an amendment to the Boyds Master Plan providing that certain land is suitable for such a zone. In No. Boyds Civic Association and seven individual property owners brought an action for declaratory judgment in the Circuit Court for Montgomery County.

As this appeal was taken from an order dismissing the complaint, the facts summarized here are culled from the pleadings. Boyds, a rural community in northern Montgomery County, comprises some 3, acres and is the subject of a master plan duly approved and adopted in The individual parties plaintiff reside in Boyds "within sight and sound" of a acre tract which Rockville Crushed Stone owns and upon which it wishes to operate a quarry.

It may not do so, however, unless and until its land is rezoned from its current residential classification to that of a Mineral Resource Recovery Zone.

As we indicated at the outset, a prerequisite to the granting of such zoning is that the applicable masterplan recommend that use for the property in question. The Boyds Master Plan approved and adopted in contained no such recommendation for the Rockville Crushed Stone property.

Rockville Crushed Stone commenced its efforts to obtain rezoning in , by 1 filing a local zoning map amendment application with the District Council, and 2 requesting the Commission, through its Montgomery County Planning Board, to propose to the District Council that the Boyds Master Plan be amended to contain a recommendation of Mineral Resource Recovery Zone suitability for the land owned by Rockville Crushed Stone.

Rockville was initially unsuccessful in its efforts. Ultimately, however, the master plan was amended in February as requested by Rockville. Petitioners contended in their complaint that the master plan amendment was approved and adopted in contravention of state and county laws requiring notice and public hearings at certain stages of the amendment process.

They sought in their action for declaratory judgment to have the trial court declare that the master plan amendment was "illegal, unlawful, invalid, of no force nor [sic] effect, and unconstitutional" because of these violations. The circuit court dismissed the claim as not presenting a justiciable controversy.

Montgomery County, 67 Md. We granted certiorari in order that we might address the important public question here presented. The Court of Special Appeals reasoned:. Section provides that the subtitle is remedial and "[i]ts purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.

Section b states that if a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under the declaratory judgment subtitle. Section c provides that a party may obtain a declaratory judgment or decree notwithstanding a concurrent common-law, equitable, or extraordinary legal remedy, whether or not recognized or regulated by statute.

On numerous occasions, we have observed that under the statute "the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action. Anderson, Md. Schultz, Md. Prince George's County, Md. McAuliffe, Md. It follows, therefore, that in the absence of a justiciable controversy a court should not entertain an action for declaratory judgment. This Court has defined a justiciable controversy as one wherein "there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.

Commissioners, Md. George's Co. In Hatt, Chief Judge Murphy cautioned for the Court that addressing non-justiciable issues "would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.

Borchard describes justiciability as a concept embodying "numerous hurdles. Borchard, Declaratory Judgments 2d ed. In the present case, the uncleared "hurdle," in the view of respondents, the Court of Special Appeals, and the trial judge, is that of ripeness.

Trustees of M. Church, Md. Brewer, 80 Md. In a similar vein the Court said in Tanner v. McKeldin, Md. Accord Liss v. Goodman, Md. It may be said then that the purpose of the ripeness doctrine is to ensure that adjudication will dispose of an actual controversy in a conclusive and binding manner. Especially in the context of a declaratory judgment action, ripeness can become an elusive concept. One of the primary objectives of the Act is to "relieve litigants of the rule of the common law that no declaration of rights may be judicially adjudged unless a right has been violated State, Md.

At the same time, the ripeness doctrine prohibits adjudication if the violation is but "future, contingent and uncertain. In some situations, the existence or nonexistence of ripeness is a question of degree. To borrow a term coined by the Supreme Court of Pennsylvania, if a court is satisfied that the "ripening seeds" of an actual controversy exist, the facts are not too contingent or speculative for declaratory relief.

Kariher's Petition No. Borchard explains:. To date, the doctrine of ripeness as it applies to declaratory judgment actions has figured in only a handful of decisions by Maryland's appellate courts. In Hatt, Md. We held that the circuit court should have dismissed the complaint for lack of a justiciable issue. Any violation of Hatt's rights was, at that point, merely speculative:. On the issue of ripeness, the case of Hamilton v. McAuliffe then a judge of the Circuit Court for Montgomery County to submit to an emergency blood transfusion.

Eleven months later, Hamilton filed a declaratory judgment action in which he requested both a declaration that the judge's order had been "erroneous" and an order preventing the judge "from presently and in the future ordering a blood transfusion for Mr. The record contained no indication that Hamilton would require further transfusions in the future.

On this and other aspects of the case, the Court concluded that the record plainly evidenced a lack of justiciability. Chief Judge Murphy added for the Court:. Tanner, Md. The complainants in that case resided upon land over which the United States exercised exclusive jurisdiction, except that Maryland retained the right to serve thereon all civil and criminal process of the courts of this State.

The complainants sought a declaration of their status, rights, and obligations with respect to several matters, including voting rights, payment of State income tax, and applicability of State probate and testamentary law.

Several of the issues were not justiciable because the complainants failed to allege the existence of a controversy. At one point in the opinion Judge Delaplaine said for the Court:. On two occasions, this Court has held that declaratory judgment actions were not brought prematurely.

In Brown, Md. The respondents objected on the ground that a declaration of the proper distribution of proceeds was premature so long as the life tenants remained alive.