By: Jeff Zyontz, Esq.
Legislative Counsel for the Montgomery County Council

What is the relationship between traffic and zoning? Traffic issues have actually predated the promulgation of the first zoning laws by more than a century. As early as 1812, the courts have found that the obstruction of the King's highway constituted a public nuisance and was therefore indictable at common law. A nuisance is something that can be avoided by the use of a locality’s power to act on behalf of its health, safety, and general welfare. In 1889, traffic congestion which caused a traffic obstruction was determined to be a nuisance by the New York Court of Appeals. The zoning power grew out of a locality’s authority to abate public nuisances through its police powers. Through the zoning power, localities have attempted to regulate the impacts that traffic has on the use of land. Although

How is traffic considered when rezoning land?

Maryland courts have been particularly concerned about traffic when rezoning or special exception issues are presented. Traffic concerns may be a material consideration in any rezoning decision. When traffic considerations were ignored by the decision maker, courts have overturned the decision. The decision maker’s conclusion must be fairly debatable to avoid being arbitrary. The amount of evidence required to make an issue fairly debatable is not great. In one often cited case, witness testimony of long traffic queues and traffic accidents was sufficient to support a decision to deny a rezoning. In another case, evidence of dangerous traffic conditions and traffic counts by one witness was sufficient to warrant a denial of the requested rezoning.

Although an increase in traffic should be considered in rezoning cases, it is not controlling in all cases. More weight can be given to some testimony on the effect of a rezoning on traffic conditions than simply an allegation of increased traffic.

What legislation controls courts that rule on rezoning?

As stated above, zoning is a delegation of Maryland’s police power to the county. The power to zone or rezone is granted only by statutory delegation and can be exercised only to the extent and in the manner the legislature has said that it may be. All charter counties in Maryland have delegated powers under Article 66B of the Maryland Code. For example, Montgomery County’s delegated powers are in Article 28 Title 8 of the Maryland Code. Unlike other charter counties, the state law does not require any specific anti-congestion related purposes for zoning regulations in Montgomery County. While Article 66B §4.03(b) of the Maryland Code, provides that “The regulations shall be designed to: (1) Control congestion on the streets…”, this purpose is not found in Article 28 Title 8 of the Maryland Code. The courts have been very respectful of legislatively enacted zoning rules. The State granted Montgomery County very broad zoning authority. The County is explicitly authorized to adopt its own procedures for both zoning text amendments and zoning map amendments.

The Maryland courts have been very respectful of legislatively enacted zoning rules. Floating zones, for example, are accorded special status; they are viewed as zones that are potentially consistent with a master plan and are not subject to the courts’ “change or mistake” rule. With regard to local policy and law, the Court of Appeals will look at the proposed development’s consistency with the master plan and the purpose of the zone. As noted earlier, floating zones are like a special exception: the compatibility of the proposed development with the surrounding area is also a consideration.

The Montgomery County Zoning Ordinance does not require any explicit findings to rezone land to zones that do not require a development plan; however, traffic is infused into the Council’s decisions as a matter of compatibility and concern for the general welfare. Under County law, zones that require development plans require more specific findings. The Council must make a specific finding that any development plan would “not conflict with the general plan, the county capital improvements program or other county plans and policies.” In addition, the Council must find that the proposed development “would be compatible with adjacent development.”

Can County law remove or restrict traffic considerations from zoning decisions?

As the zoning authority is derived from enabling legislation, can such legislation remove traffic considerations from zoning decisions? The Court of Special Appeals has answered this question in the affirmative. Washington County required an applicant for a Planned Unit Development (“PUD”) Zone to “be located adjacent to adequate roadway facilities capable of serving existing traffic and the future traffic generated by the uses in the PUD.” Any project would then be required to prove the existence of adequate transportation facilities in the subdivision process. The Court held that such a two-step approach was the legal intention of the County.

Given that the courts have approved a legislative scheme that does not require any proof of a transportation network’s capacity to handle new development when a zoning decision is made, it is highly probable that the courts would also look favorably on a legislative standard of transportation adequacy as well.