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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.
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