Council, Baradel, Kosmerl & Nolan, P. A. - Attorneys at Law serving Maryland and Anne-Arundel County

ZONING CONSIDERATIONS IN THE
MUNICIPAL ANNEXATION OF LAND
Frederick C. Sussman, Esq.
June 25, 2003

TABLE OF CONTENTS

I. OVERVIEW OF MUNICIPAL AUTHORITY TO ZONE NEWLY ANNEXED LAND

A. General Planning and Zoning Authority of Municipalities over Annexed Land
B. Nature of Initial Zoning of Annexed Land
C. Compliance With All State and Local Laws Required

1. Need to Comply With Articles 23A and 66B
2. Need to Identify and Satisfy Differing Requirements

II. STATUTORY FIVE YEAR LIMITATION ON MUNICIPALITY'S AUTHORITY TO ZONE

A. Consistency with Master Plan or General Plan Required

1. Master Plans and General Plans are not Zoning Ordinances
2. Purpose of Five Year Limitation
3. What are "substantially different" land uses?
4. Zoning for a Substantially Different Land Use Within the First Five Years After Annexation

a. Current law
b. Previous requirements

5. Counsel Should Undertake a Comparison of the Different Land Uses
6. Obtaining County Council or Commissioner Approval
7. Procedure to be Used by County Council or County Commissioners in Considering Request
8. Failure of County Council or Commissioners to Act Upon Request For Substantially Different Zoning Classification

B. Other Considerations

III. RIGHTS OF THE LANDOWNER IN ZONING OF ANNEXED LAND

A. Right to Demand Zoning Classification
B. Municipality May Not Extract Conditions in Exchange for Zoning
C. Municipality May Not Impose Conditions that Limit Permissible Uses of Land
D. Right to Demand Zoning Classification is not Unlawful Contract Zoning
E. Avoiding a Finding of Unlawful Contract Zoning

IV. SPECIFIC PROCEDURES PERTAINING TO ZONING OF ANNEXED LAND

A. Function of local planning commission

1. Public hearing and Reports

a.
b.
Impact upon municipal legislative body
Coordination of municipal legislative body hearing

2. Amendment of Municipal Master or General Plan

B. Procedures and powers applicable to municipal legislative body zoning action.

1. Public Hearing Requirements
2. Precondition for Holding Public Hearing
3. Consideration of Different Zoning Classifications
4. Right of Municipality to Adopt Local Procedures
5. Awaiting Approval of Substantially Different Land Use by County Council or Commissioners

V. CHALLENGES TO INITIAL ZONING OF ANNEXED LAND

A. Form of Action

1. When Annexed Land Zoned as Part of Annexation Resolution
2. When Annexed Land Zoned by a Separate Legislative Act

B. Proper Parties

1. The County
2. M.-N.C.P.&P.C.
3. Adjacent Property Owners
4. Taxpayers

C. Grounds of Action

1. Different From Master or General Plan
2. Failure to Comply With Proper Procedures
3. Improper County Approval of Substantially Different Zoning Classification
4. Improper Conditional Zoning
5. Various Constitutional Grounds

I. OVERVIEW OF MUNICIPAL AUTHORITY TO ZONE NEWLY ANNEXED LAND

A.

General Planning and Zoning Authority of Municipalities over Annexed Land

When a parcel of land is annexed to a municipality which is authorized to exercise, and which does exercise, planning and zoning authority, the municipality then has exclusive planning, zoning and subdivision control over that parcel of land. Md. Code (1957, 2001 Repl. Vol., 2002 Cum. Supp.) Article 23A, Section 9(c) and Section 19(s). (All further statutory references to this article will be cited as Article 23A, Section _____.)

B.

Nature of Initial Zoning of Annexed Land

A municipality's act of adopting an initial zoning classification for a parcel of annexed land has been characterized both as a municipality's exercise of its original zoning powers and as an amendment of the municipality's existing zoning map. Compare, Mayor and Alderman of City of Annapolis v. Kramer, 235 Md. 231, 201 A.2d 333 (1964), and Northeast Plaza Associates v. Town of North East, 310 Md. 20, 526 A.2d 963 (1987). See also, Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 814 A.2d 469 (2002).

C.
Compliance With All State and Local Laws Required

In placing a zoning classification upon a newly annexed parcel of land, the municipality must comply with all State law and local charter and ordinance requirements. Northeast Plaza Associates v. Town of North East, 310 Md. 20, 526 A.2d 963 (1987).

1. Need to Comply With Articles 23A and 66B

When a parcel of property is zoned by a municipality as part of the annexation proceeding, the requirements of Article 23A and Md. Code (1957, 1998 Repl. Vol., 2002 Cum. Supp.) Article 66B, must be read together and both complied with. Northeast Plaza Associates v. Town of North East, 310 Md. 20, 526 A.2d 963 (1987); Beshore v. Town of Bel Air, 237 Md. 398, 206 A.2d 678 (1965); Mayor and Alderman of City of Annapolis v. Kramer, 235 Md. 231, 201 A.2d 333 (1964). (All further statutory references to Article 66B will be cited as Article 66B, Section ___.)

2. Need to Identify and Satisfy Differing Requirements

Articles 23A and 66B and local municipal charters and ordinances may contain different procedural requirements for matters such as:

a. Duration, timing and frequency of advertising and public notice requirements for public hearings on annexation and zoning;

b. Scheduling of public hearings; and

c. Effective date of annexation and zoning actions.

Care must be taken so that all different procedural requirements under the various State and local laws are observed. Municipal officials in many municipalities, particularly in small municipalities with limited staff, may not be aware of all of the interrelationships and intricacies of the different laws. Counsel should be aware of all statutory requirements and assure themselves that all requirements have been satisfied. Advertising and notice requirements, in particular, often are construed to be jurisdictional to a proceeding, and the failure to give proper notice may be grounds for invalidation of the annexation or zoning.

D.

Method of Zoning Newly Annexed Land

A municipality may place a zoning classification upon a parcel of annexed land as part of the annexation resolution. Beshore v. Town of Bel Air, 237 Md. 398, 206 A.2d 678 (1965). The annexed land also may be zoned by the municipality in a separate legislative act at the same time as the annexation is approved or at a later date. The manner in which the zoning is accomplished is a matter of local custom.

II. STATUTORY FIVE YEAR LIMITATION ON MUNICIPALITY'S AUTHORITY TO ZONE

A.
Consistency with Master Plan or General Plan Required

For five years following the annexation, the annexed land may not be zoned for land uses which are substantially different from the uses for the land specified in the relevant county or planning agency's current and duly adopted master plan or plans or adopted or approved general plan or plans, without the express approval of the county council or county commissioners. Article 23A, Section 9(c)(1). See, Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 814 A.2d 469 (2002).

1. Master Plans and General Plans are not Zoning Ordinances
The master plan or general plan are not the same as comprehensive zoning, the zoning map, or a zoning classification. Pattey v. Board of County Commissioners, 271 Md.352, 317 A.2d 142 (1974). Master plans and general plans are planning tools to guide the legislative body when it adopts zoning classifications. The comprehensive zoning scheme does not have to conform to the recommendations of the master plan or general plan. Iverson v. Zoning Board, 22 Md. App. 265, 322 A.2d 569 (1974).

2.
Purpose of Five Year Limitation

The primary function of this five year limitation is to "preserve the integrity" of the master plan or general plan in effect at the time of the annexation and prevent substantial disruptions to planning for unincorporated areas surrounding the annexed land. Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 814 A.2d 469 (2002); Northeast Plaza Associates v. Town of North East, 310 Md. 20, 526 A.2d 963 (1987); Maryland-National Capital Park and Planning Commission v. Mayor and Council of Rockville, 272 Md. 550, 325 A.2d 748 (1974).

3.

What are "substantially different" land uses?

a. Multifamily and townhouses vs. single-family detached dwellings. City of Gaithersburg v. Montgomery County, 271 Md. 505, 318 A.2d 509 (1974).

b. Light industrial vs. commercial and multifamily residential. Northeast Plaza Associates v. Town of North East, 310 Md. 20, 526 A.2d 963 (1987).

c. Low density single-family residential vs. professional office, office/warehouse park and multi-family residential. Anne Arundel County, Maryland v. Mayor and Aldermen of the City of Annapolis, Circuit Court for Anne Arundel County, Case No. 1118809 (May 10, 1989) (Goudy, J., granting summary judgment to County).

d. Single-family detached dwellings of various lot sizes and densities vs. townhouses and apartments. Maryland-National Capital Park and Planning Commission v. Mayor and Council of Rockville, 272 Md. 550, 325 A.2d 748 (1974).

e. Single-family detached dwelling residential uses of differing densities or lot sizes may not be substantially different land uses. Id.

4. Zoning for a Substantially Different Land Use Within the First Five Years After Annexation

a. Current law

Since the amendment of Article 23A, Section 9(c), by 1988 Maryland Laws, Chap. 450, if the county council or county commissioners expressly approve of a municipal zoning classification which permits a substantially different land use for the annexed land than is shown on the relevant master plan or general plan, the municipality may place the annexed land in such zoning classification without applying the "change/mistake rule", without making certain other findings of fact, and without complying with the other procedural requirements of Article 66B, Section 4.05(a).

b. Previous requirements

Before July 1, 1988, even if the county council or county commissioners approved, an annexed parcel of land could not be zoned for a use substantially different from the land use specified in the master or general plan without a finding by the municipal legislative body that there was a change in the character of the neighborhood or that the County legislative body erred in the prior zoning of the property, and without complying with the other requirements of Article 66B, Section 4.05(a). See, Northeast Plaza Associates v. Town of North East, 310 Md.20, 526 A.2d 963 (1987).

5.

Counsel Should Undertake a Comparison of the Different Land Uses

In conjunction with municipal officials, counsel should determine early in the annexation evaluation process whether the landowner's desired zoning classification would result in a violation of Article 23A, Section 9(c)(1). Counsel should take care to compare the uses permitted under the proposed zoning classification to the use for the land specified under the master plan or general plan and not the county zoning ordinance. See, Maryland-National Capital Park and Planning Commission v. Mayor and Council of Rockville, 272 Md. 550, 325 A.2d 748 (1974). Counsel also should consider having a comparative analysis of the existing master plan or general plan land uses and proposed municipal zoning uses undertaken by a land planner or other appropriate expert. Among other things, such an analysis may evaluate

a. Character of uses,

b. Intensity of uses, and

c. Impacts of the respective uses on public facilities.

6. Obtaining County Council or Commissioner Approval

If it is determined that the proposed zoning classification would result in substantially different land uses, counsel must coordinate with municipal officials the most politically expedient way to obtain county council or commissioner approval. Many annexations are political turf battles and often County officials will guard jealously the sanctity of their land planning practices. The landowner should be prepared to demonstrate, if possible, the minimal disruptive effect that development under the desired municipal zoning classification would have on surrounding unincorporated areas, although even such a showing does not guarantee favorable county approval. Without the necessary county council or county commissioner approval, the landowner may not desire to continue with the annexation process.

7.

Procedure to be Used by County Council or County Commissioners in Considering Request

The county council or county commissioners may determine what procedure to use in considering a request to zone annexed land in a manner which allows substantially different land uses than allowed under the master plan or general plan. The decision of the council or commissioners to approve or deny the request will be set aside by a court only if the decision is arbitrary, capricious or illegal. Northeast Plaza Associates v. Town of North East, 310 Md. 20, 526 A.2d 963 (1987).

8.
Failure of County Council or Commissioners to Act Upon Request For Substantially Different Zoning Classification

Article 23A, Section 9(c)(1), allows the municipality to zone an annexed parcel of land in a manner which allows substantially different land uses than the relevant master or general plan only if the county council or commissioners expressly approve. Counsel may be confronted with a county legislative body which refuses to consider a request for approval of such a zoning classification in order to thwart the annexation. No statutory obligation is placed upon the county council or county commissioners to consider a request, or to consider a request within any specified period of time. Therefore, inaction by this body is more akin to a failure or refusal to grant the request, and should not be treated as an approval. Since there is no mandatory duty imposed upon the council or commissioners, mandamus does not appear to be appropriate to compel their consideration of and action upon the request.

B. Other Considerations

However, after the five year period immediately following annexation, the "change-mistake rule" and other requirements of Article 66B, Section 4.05(a), will apply to the piecemeal rezoning of the annexed land. It is not clear whether Section 4.05(a) applies to the subsequent piecemeal rezoning of annexed land by the municipality within this initial five year period. The "change-mistake rule" would not apply if the municipality rezoned the annexed land as part of a comprehensive rezoning process. Trustees of McDonogh Educational Fund and Institute v. Baltimore County., 221 Md. 550, 158 A.2d 637 (1960).

III. RIGHTS OF THE LANDOWNER IN ZONING OF ANNEXED LAND

A.
Right to Demand Zoning Classification

A property owner seeking annexation may condition the annexation of his property upon receipt of a particular zoning classification. Mayor and Council of Rockville v. Brookeville Turnpike Construction Co., 246 Md. 117, 228 A.2d 263 (1967).

B. Municipality May Not Extract Conditions in Exchange for Zoning
Although a municipality may impose conditions upon a landowner in exchange for approving an annexation, it may not insist on conditions or concessions from the landowner in exchange for granting a particular zoning classification. Mayor and Council of Rockville v. Brookeville Turnpike Construction Co., 246 Md. 117, 228 A.2d 263 (1967). Such a practice would be akin to impermissible contract zoning. See, Pressman v. City of Baltimore, 222 Md. 330. 160 A.2d 379; Baylis v. City of Baltimore, 219 Md. 164, 148 A.2d 429 (1959).

C.
Municipality May Not Impose Conditions That Limit Permissible Uses of Land

Although Article 66B, Section 4.01, allows a municipality to impose conditions upon the zoning action as appropriate �to preserve, improve, or protect the general character and design of the lands and improvements being zoned or rezoned, or of surrounding or adjacent lands, the municipality may not impose conditions that limit or prohibit uses of the land that otherwise would be allowed by the zoning classification placed on the annexed land. Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 814 A.2d 469 (2002).

D.
Right to Demand Zoning Classification is not Unlawful Contract Zoning

The ability of a landowner to require a particular zoning classification upon annexation is not unlawful contract zoning, at least where there is no significant controversy over the zoning classification. Mayor and Council of Rockville v. Brookeville Turnpike Construction Co., 246 Md. 117, 228 A.2d 263 (1967).

E.
Avoiding a Finding of Unlawful Contract Zoning

To avoid a possibility that unlawful contract zoning may be presented, particularly where the zoning classification requested by the landowner has been controversial and where the landowner has agreed to significant conditions or exactions during the annexation negotiation process, the parties should take care in discussions and debate, and in written documents, to keep the issues of zoning and annexation conditions separate. Do not make it easy for a Court to find that a particular annexation condition was a quid pro quo for favorable zoning consideration. See, Baylis v. Mayor and City Council of Baltimore, 219 Md. 164, 148 A.2d 429 (1959).

IV. SPECIFIC PROCEDURES PERTAINING TO ZONING OF ANNEXED LAND

A.

Function of local planning commission

1.
Public hearing and Reports

The municipal planning commission must hold a public hearing on the proposed zoning classification and make interim and final recommendations to the local legislative body. Article 66B, Section 3.05(d). See, Mayor and Aldermen of City of Annapolis v. Kramer, 235 Md. 231, 201 A.2d 333 (1964).

a. Impact upon municipal legislative body

The municipal legislative body may not hold a public hearing or take action on the proposed zoning until it has received a final report from the commission. Article 66B, Section 3.05(d).

b. Coordination of municipal legislative body hearing

If the zoning of the annexed property is to be undertaken concurrently with the annexation, timing of the legislative body's public hearing on the annexation should be coordinated with receipt of the final commission report in order to avoid the need for multiple hearings.

2.

Amendment of Municipal Master or General Plan

Although it is not clear whether absolutely required, counsel also should consider the desirability of a concurrent amendment to the municipal master or general plan to reflect the desired land uses for the annexed land and how the annexed land interrelates with surrounding land in the municipality. Such an amendment must be recommended by the planning commission. See, Article 668, Sections 3.07 and 3.08.

To recommend an amendment of the master or general plan to the legislative body, the commission must:

(1) Hold at least one public hearing;

(2) Give notice of the hearing by one publication in a newspaper of general circulation in the jurisdiction;

(3) At least 60 days before the hearing, refer a copy of the amendment to adjoining planning jurisdictions and to all State and local jurisdictions responsible for financing or constructing public improvements necessary to implement the amendment.

(4) Approve amendment by resolution approved by majority of membership. Id.

(5) Include comments received from all other jurisdictions in the commission's report to legislative body.

B.
Procedures and powers applicable to municipal legislative body zoning action.

1.
Public Hearing Requirements

At least one public hearing must be held on the proposed zoning classification. Article 66B, Section 4.04(a). At the hearing all parties in interest and citizens must be given opportunity to be heard. Id. Advertisement of the time and place of the hearing, along with a "summary of the proposed regulation, restriction, or boundary, must be published (i) in at least one newspaper of general circulation in the jurisdiction, (ii) once each week for two successive weeks, (iii) with the first publication at least 14 days before the hearing. Article 66B, Section 4.04(b).

However, where the zoning classification to be adopted by the municipal legislative body is substantially different from the proposed zoning classification as advertised, a new public hearing probably should be held after re-advertisement. See, Von Lusch v. Board of County Commissioners, 268 Md. 445, 302 A.2d 4 (1973).

2.
Precondition for Holding Public Hearing

The local legislative body may not hold the public hearing or take action to zone the annexed land until it has received the recommendation of the planning commission regarding the proposed zoning classification. Article 66B, Section 3.05(d).

3.
Consideration of Different Zoning Classification

After receiving the report of the planning commission, the local legislative body may consider a proposed zoning classification for the property different from the classification considered by the planning commission as long as the advertisement of the legislative body's public hearing contains notice of the classification to be considered. Beshore v. Town of Bel Air, 237 Md. 398, 206 A.2d 678 (1965).

4.
Right of Municipality to Adopt Local Procedures

The municipal legislative body may adopt local procedures for the consideration and taking action upon the proposed zoning classification. Article 66B, Section 4.04(a).

5.
Awaiting Approval of Substantially Different Land Use by County Council or Commissioners

The municipal legislative body should not act to approve a "substantially different" zoning classification until approval has been obtained from the county council or county commissioners to avoid creating a situation which may be subject to legal challenge. "Rushing the gun" to approve the zoning classification may create animosity among county officials and destroy any remaining opportunity for county approval.

V.
CHALLENGES TO INITIAL ZONING OF ANNEXED LAND

A.
Form of Action

1.
When Annexed Land Zoned as Part of Annexation Resolution

An action for declaratory judgment is the appropriate method to challenge the zoning of newly annexed land as part of the annexation resolution because no special statutory appeal remedies are provided under Article 23A, Section 9(c). Northeast Plaza Associates v. Town of North East, 310 Md.20, 526 A.2d 963 (1987); Maryland-National Capital Park and Planning Commission v. City of Rockville, 269 Md. 240, 305 A.2d 122 (1973).

2.
When Annexed Land Zoned by a Separate Legislative Act

The proper method for challenging the initial zoning of annexed land when the zoning is undertaken by a separate legislative act has not yet been decided by the courts. The answer to this question ultimately may depend upon whether such initial zoning of annexed land is treated by the courts as an act of comprehensive or original zoning by the municipality or an act of "piecemeal rezoning".

If treated as piecemeal rezoning, the statutory appeal rights to the Circuit Court provided in Article 66B, Section 4.08, may be the proper procedure to challenge the zoning action. However, the appeal procedures provided in Section 4.08 do not apply to acts of comprehensive zoning. Mraz v. County Commissioners, 291 Md. 81, 433 A.2d 771 (1981). Board of County Commissioners v. Stephans, 286 Md. 384, 408 A.2d 1017 (1979). But see, Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 814 A.2d 469 (2002) (municipal zoning of newly annexed land challenged by petition for judicial review in the Circuit Court, and Court of Appeals noted that the act of zoning the one small parcel of annexed land in this case was an original, but not a comprehensive, act of zoning).

Until this issue is clarified by the courts, counsel who desires to challenge the initial zoning of annexed land by a means other than as part of the annexation resolution should consider filing both a declaratory judgment action and a concurrent appeal to the circuit court pursuant to Article 66B, Section 4.08.

B.
Proper Parties

There are several possible proper parties to a challenge to the zoning of annexed land, depending upon the right which is being asserted:

1.
The County

The county in which the annexed land lies. Maryland--National Capital Park and Planning Commission v. City of Rockville, 269 Md. 240, 305 A.2d 122 (1973); Northeast Plaza Associates v. Town of North East, 310 Md.20, 526 A.2d 963 (1987).

2.
M.-N.C.P.&P.C.

The Maryland-National Capital Park and Planning Commission for property lying within the Regional District at the time of annexation. Maryland National Capital Park and Planning Commission v. City of Rockville, 269 Md. 240, 305 A.2d 122 (1973).

3.
Adjacent Property Owners

An adjacent property owner whose property lies outside the municipality and which will be injuriously affected by the annexation and zoning (e.g. additional negative traffic impact, adverse impact upon joint use public facilities, visibility from protestant's property). Northeast Plaza Associates v. Town of North East, 310 Md.20, 526 A.2d 963 (1987). Also, an adjacent or nearby property owner whose property lies inside the municipality and which may be injuriously affected by the zoning action.

4.
Taxpayers

A taxpayer within the municipality.

C.
Grounds of Action

A challenge to the municipal zoning of newly annexed land may be based upon the following grounds, among others:

1.
Different From Master or General Plan

The municipal zoning classification is substantially different from the adopted master plan or general plan of the county or planning agency having jurisdiction and the county legislative body has failed to give its approval. Maryland-National Capital Park and Planning Commission v. City of Rockville, 269 Md. 240, 305 A.2d 122 (1973).

2.
Failure to Comply With Proper Procedures

The municipality did not comply with State or local procedures in adopting the new zoning classification. Northeast Plaza Associates v. Town of North East, 310 Md. 20, 526 A.2d 963 (1987).

3.
Improper County Approval of Substantially Different Zoning Classification

The approval of a substantially different zoning classification by the county council or county commissioners was arbitrary, capricious or illegal. Id.

4.
Improper Conditional Zoning

A municipality may not limit or prohibit uses that otherwise would be permissible under the zoning classification in which the annexed land is placed. Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 814 A.2d 469 (2002).

5.
Various Constitutional Grounds

The zoning was "unreasonable or discriminatory, denied equal protection of the laws or amounted to the granting of a special privileges". Wakefield v. Kraft, 202 Md. 136, 143, 96 A.2d 27 (1953). Also, the zoning action constituted an unconstitutional taking of property if the zoning classification deprived a landowner of all reasonable and beneficial use of his property. Mayor and City Council of Baltimore v. Borinsky, 239 Md. 611, 212 A.2d 508 (1965).