59-C-4.351. Building height.

   The maximum building height at any point measured from the finished grade is 3 stories or 42 feet, except that the height may be increased as follows:

   (a)   To 5 stories or 60 feet if the building satisfies all of the following criteria:

      1.   The building is an expansion of a use that either:

         (i)   Existed on November 23, 1976; or

         (ii)   Received site plan approval in accordance with division 59-D-3 between November 23, 1976, and March 26, 1985, for the purpose of attaining the increased height allowed by this section.

      2.   The roof elevation of the expansion does not exceed the roof elevation of the existing or approved use as specified by paragraph (a) above. Elevation is measured from sea level.

      3.   The expansion receives site plan approval in accordance with division 59-D-3; or

   (b)   To 65 feet to accommodate mixed commercial and residential development, provided:

      1.   The residential component consists of a minimum of 60% of the overall FAR, and

      2.   The development is at least 300 feet from any one-family residential use.

   (c)   To accommodate development at a regional shopping center with a gross leaseable area that exceeds or will exceed subject to site plan approval 1,200,000 square feet, building height may be increased to (1) 90 feet for a building that includes a theater complex, and (2) 130 feet for a hotel.  Any increase in building height under this provision must receive site plan approval in accordance with Division 59-D-3 and be set back from the nearest residential zone at least 3 feet for each 1 foot of building height.

   Editor's note—Paragraphs (a) and (b) of § 59-C-4.351, Building height, appear above as adopted by Ord. No. 14-54.  However, in Humphrey v. Planning Board for Montgomery County, Civil Nos. 239679 and 239680, the Circuit Court for Montgomery County found that Zoning Text Amendment 02-04 (Ord. No. 14-54) was an invalid and unconstitutional text amendment, violating the uniformity requirement of the Regional District Act and prohibited under the Maryland Constitution.  The text of paragraphs (a) and (b) of § 59-C-4.351 prior to the adoption of Ord. 14-54 was:

   59-C-4.351.   Building height.

   The maximum building height at any point measured from the finished grade is 3 stories or 42 feet, except that the height may be increased as follows:

   (a)   To 5 stories or 60 feet if the building satisfies all of the following criteria:

      1.   The building is an expansion of a use that either:

         (i)   Existed on November 23, 1976; or

         (ii)   Received site plan approval in accordance with division 59-D-3 between November 23, 1976, and March 26, 1985, for the purpose of attaining the increased height allowed by this section.

      2.   The roof elevation of the expansion does not exceed the roof elevation of the existing or approved use as specified by paragraph (1) above.  Elevation is measured from sea level.

      3.   The expansion receives site plan approval in accordance with division 59-D-3; or

   (b)   To 75 feet to accommodate mixed commercial and residential development, provided:

      1.   The residential component consists of a minimum of 60% of the overall FAR, and

      2.   The development is at least 300 feet from any one-family residential use.