PUMPHREY’S SUES THE CITY OVER CHANGE IN ZONING

On June 6, 2012,  RAP Leasing Company, the owner of the property on which the Robert A. Pumphrey Funeral Home sits, along with the funeral home, filed suit in the Circuit Court for Montgomery County seeking a judicial reversal of the actions taken by the Mayor and Council of Rockville in approving Zoning Text Amendment TXT2012-00233, which reconsidered and reversed Zoning Text Amendment TXT2010-00228.

The history of this case is relatively well-known.  Pumphreys has operated its funeral home at 300 West Montgomery Avenue since 1930.   The subsequent zoning of this property by the City in 1932 put Pumphreys into a residential zone.  As that zoning ordinance excluded funeral homes from a residential zone Pumphreys has been operating its business as a “non-conforming use.”  As such, Pumphreys was unable to expand or otherwise alter its property without an amendment to the zoning ordinance to enable it to do so.  Pumphreys presently has 17 parking spaces on its property and it sought to expand its parking capacity.  In order to be able to make this change, Pumphreys filed an application on June 30, 2010, seeking a zoning text amendment that would enable it to extend its parking area.  The specific language it sought to have enacted was “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 lost/and or an adjacent lot in accordance [with applicable law.]”  This is Text Amendment TXT2010-00228 (“Pumphreys Amendment”).

A public hearing was held on the proposed Pumphreys Amendment and subsequent discussions occurred among the Mayor and Council, and City Staff.   Staff suggested that by adding the limitation that this would apply to only property in an R-90 zone, Pumphreys zoning, that the only property in the City that would be affected by this change in law would be the Pumphreys property.   Numerous witnesses appeared before the Mayor and Council, providing a variety of points of view, both for and against the proposed amendment.   It appears from the record that the Mayor and Council discussed Pumphreys Amendment over time and at length.   A spirited and thorough airing of the pros and cons of the proposal took place.   On December 13, 2010, the Mayor and Council approved the Pumphreys Amendment by a vote of 3-2.  Councilmen Gajewski, Pierzchala and Britton voted for the text amendment and the Mayor and Councilwoman Newton voted against.

Pumphrey’s lawsuit alleges that as a result of the approval of the Pumphreys Amendment by the Mayor and Council, it began to take the steps required to move forward with its plans to expand its parking lot.   Its complaint with the Court alleges that in reliance on the approval it filed appropriate paperwork with the City, filed its site plan application on November 16, 2011, and  obtained approval from the City’s Department of Public Works of its Development Stormwater Management Concept Plan on April 17, 2012.

While this was occurring, in November 2011 the City held its elections and the faces on the City Council changed with the departure of Councilmen Gajewski and Britton and the election of Councilmen Hall and Moore.  After the elections, the Mayor and Council asked Staff to review the procedures followed in the adoption of the text amendment and the current status of the parking lot.  The approval of the Pumphreys Amendment by the previous Council was then reconsidered by the Mayor and Council at its meeting on January 12, 2012.  At that time another text amendment, TXT2012-00233,  was proposed (“2012 Amendment”).  The thrust of the 2012 Amendment would effectively reverse the previous approval of the Pumphreys Amendment.  This proposal was heard at a public hearing on March 26, 2012.  Again there were a number of witnesses, both for and against,  who appeared and testified about the 2012 Amendment.  On May 7, 2012, the Mayor and Council approved this text amendment.   Again the vote was 3-2, with the Mayor, Councilwoman Newton and Councilman Hall voting in favor, and Councilmen Pierzchala and Moore voting against. 

Pumphreys’ lawsuit alleges that in its decisions on the Pumphreys text amendment the Mayor and Council were acting in a “quasi-judicial” capacity.   That is to say, they were taking testimony, investigating facts, reviewing the record, and then, based upon that evidence, they made a decision.  In general, when a public body acts in such a capacity, to thereafter change its decision it is required to find something new in the subsequent record that is different from what it found in the original record, or that there was some procedural error in the manner in which the first decision was reached.   Pumphreys avers that there were no new facts, evidence or procedures that justified the reversal of the first text amendment, and as a result, the City’s actions were arbitrary and capricious, and should be reversed.

The City’s answer is not yet required to be filed with the Court, but it is my opinion that its attorneys will argue that the passage of the Pumphreys Amendment was procedurally flawed or that the Mayor and Council did find additional information upon which it based its decision to pass the 2012 Amendment.  However, as this matter is in litigation, each party will have a full and fair opportunity to present its case to a Circuit Court Judge who will make the ultimate decision.   

Watch the RCC Website rockcom.org  and Newletter for further information about this matter.

Petition of William A. Pumphrey, et al. for Judicial Review and for Writ of Mandamus as to the Decision of the Mayor and Council of Rockville in the Case of Ordinance to Approve Zoning Text Amendment TXT2012-00233 Reconsidering and Reversing Zoning Text Amendment TXT2010-00228, Circuit Court for Montgomery County, Maryland, Case No. 363935V.

Alan Frankle