Daily Development for Friday, May 14, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

Note that there are three postings on this case. The issues tie in well with the DIRT discussion a few weeks ago about the development of a recreational community.

ZONING AND PLANNING; SPECIAL USE EXCEPTIONS: In calculating residential house density in a combined housing/country club development, the land occupied by the country club need not be eliminated from the calculations.

Hayfields v. Valleys Planning Council, Inc., 122 Md.App. 616, 716 A.2d 311 (Md.App. 1998).

A landowner proposed to develop its 475-acre into a residential community for single-family dwellings and a country club with a 18 hole golf course and other related facilities. It filed a petition for a special exception to permit the proposed country club on the 200-year-old farm. It also submitted a development plan for nearly 300 acres of its property.

Approvals were granted, but the developer was dissatisfied that one of its tracts was to be subdivided into only three lots.

The opponents were dissatisfied with other aspects of the project. Part of the land was zoned for agricultural use and part was zoned for watershed protection. Single-family dwellings were permitted as of "right," but use of the land for a country club required a special exception. In the agricultural zone, the formula for calculating the number of lots that could be created from a given tract was based on the number of acres comprising that tract. The issue presented was how many of the farm's 295 acres designated for the country club and single-family dwellings formed the gross acreage from which the number of lots for the residential component could be derived.

The Court needed to decide whether the county's zoning regulations required that the 273 acres approved for the country club use should be excluded prior to the determination of residential lots into which the 22-acre balance of the zoned acreage could be divided. Should the 273 acres be subtracted from the 295 acres because the country club is a

special exception use, rather than a use permitted as a right? Alternatively should the 273 acres be subtracted because the country club was a nonresidential use, thus involving different considerations from those that otherwise would exist if all of the 295 acres were used

for residential development? The plain language of the zoning regulations did not distinguish between residential and nonresidential use or between uses permitted by special exception and those permitted as of right. By these terms, the 295-acre track could be subdivided to a maximum of five lots, each meeting the minimum area, set back, and dwelling limit requirement. The opponents argued that the landowner was attempting to use the 273 acres twice to support two different uses a residential use and a special exception country club use.

The Court's interpretation of the zoning regulations was that its prohibition of using a minimum area to support more than one use (or building) is relevant only to its one acre lot size requirement and not when determining lot size for the calculation of residential density. Consequently, the Court read the zoning regulations as preventing a situation by which, for example, a developer might propose to use a 250-acre tract in an agricultural zone to create a 248-acre golf course in connection with four, one acre lots. This would be prohibited because in order to meet the one-acre minimum lot size requirement for a house, two acres would have to be "borrowed" from a golf course lot. That was not

the case here. Each of the houses could sit on one-acre lots without "borrowing" land from the golf course. The agricultural zone was different from other zones in the municipality that differentiated between residential and nonresidential uses. In those zones, nonresidential acreage must be subtracted prior to calculating nonresidential density.

ZONING AND LAND USE; ANCILLARY USES; DRIVING RANGES: Although driving range is an ancillary use to a country club, zoning agency may limit use of the range only to the members, but may not limit use only to persons using the golf course as part of same visit, and connot severely restrict the number of tees.

Hayfields v. Valleys Planning Council, Inc., 122 Md.App. 616, 716 A.2d 311 (Md.App.

1998), discussed further in two items under the heading "Zoning and Land Use; Conditional Use Exception."

Another issue involved the zoning board's imposition of a requirement limiting use of the golf practice facility driving range to individuals preparing for play or completing a round play on the golf course (and to other golf course members) and limiting the driving range use to thirty tees, of which not more than 15 could be in operation at any time. The

zoning board's logic was that a practice range is "a natural and appropriate facility" in conjunction with a golf course, but that a driving range is not permitted as a special exception use in the agricultural zone. Accordingly, the practice facility would have to have been a subordinate use of the country club. Given such a requirement, the zoning board restricted those using the golf club.

The Court, however, took a different approach. In its mind, once the board determined that the nonpublic driving range was an "appropriate facility" in conjunction with the proposed golf course, it could limit its use so that it did not become "a freestanding public attraction," but could not restrict its use to only 15 tees.

WORDS AND PHRASES; "CLUB:" For purposes of a zoning ordinance permitting "country clubs" as a special use exception category, a profit making golf course qualifies as such a "country club."

Hayfields v. Valleys Planning Council, Inc., 122 Md.App. 616, 716 A.2d 311 (Md.App. 1998), discussed further in two items under the general heading "Zoning and Land Use."

Zoning opponents argued that the proposal was an "improper" country club. The building code defined "country club" as a 9 or 18hole golf course with a clubhouse and other appropriate facilities, which may include other recreational facilities. Opponents pointed to the definition of a "neighborhood tennis club" as a nonprofit association for members and guests only. Consequently, the objectors argued that the word "club" denoted a nonprofit, exclusive facility. The Court disagreed. It felt that if the county legislature wanted to define "country club" as being limited to a nonprofit and exclusive entity it could have used the same language that it used in defining a "neighborhood tennis club."

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