American Oil Co. v. Miller

Collins, J., delivered the opinion of the Court. This is an appeal from a decree declaring null and void resolutions of the County Commissioners of Anne Arundel County, (the Commissioners), rezoning a lot of land in Anne Arundel County, the property of Frank Festagallo and Dolores Festagallo, his wife. The Festagallos were owners of a small triangular lot of land consisting of 1.88 acres in the Third Election District of Anne Arundel County located approximately one thousand feet south of the town of Arnold and about four miles north of Annapolis. The west side of the triangle, consisting of 431.05 feet is on the east side of the Ritchie Highway leading from Baltimore to Annapolis.

The east side of the triangle, consisting of 498.59 feet is on the west side of the old Annapolis road. The base of the triangle, consisting of 338.37 feet is between these two roads. The apex of the triangle ³⁵ is located where the old Annapolis Road joins, but does not cross, the Ritchie Highway. Apparently Anne Arundel County first acquired authority for zoning by Chapter 551 of the Acts of 1943..

Very little was done as a result of this Act. Anne Arundel Co. v. Ward, 186 Md. 330 ; Anne Arundel Co. v. Snyder, 186 Md. 342 . This Act was repealed by Chapter 388 of the Acts of 1947 and by that Act seven new sections were adopted authorizing and empowering the Commissioners to operate under a comprehensive zoning plan. By that Act and Chapter 426 of the Acts of 1949 a Zoning Commissioner and a Board of Zoning Appeals were authorized.

Previous to April 20, 1948, most of the land on the Ritchie Highway from' Glen Burnie to Annapolis was zoned “Agricultural”, including the property here at issue, or “Residential”. On January 3, 1952, the Commissioners adopted a resolution placing Anne Arundel County under the provisions of Article 66B, Sections 10 through 37, both inclusive, of the Code of Public General Laws of 1951. The previous zoning was by this resolution continued in effect until a new plan was adopted pursuant to the provisions of Article 66B, supra. On July 1, 1952, this new zoning plan became effective.

On April 20, 1948, the Commissioners adopted what was termed as a comprehensive zoning plan for the entire Third District. This plan, which was declared invalid by the court due to the omission of the key from the zoning map, was readopted on February 15, 1949, and had been operating until June, 1952, the date about which we are concerned in this case, except for certain exceptions. The only exception which is pertinent here is that the western corners of the intersection where the Arnold Road meets the Ritchie Highway were left “Agricultural” in the comprehensive zoning of 1948 because these corners were occupied by two residences. At the request of both property owners, the western corners were rezoned to “Heavy Commercial”, on June 28, 1949, in order to conform with the other side of ³⁶ the highway where a service station was located.

After the time with which we are here concerned, a service station had been erected on this rezoned land. This comprehensive plan established either “Light” or “Heavy Commercial” zones on the Ritchie Highway at Harundale, Mountain Road, Elvaton, Pasadena, Earleigh Heights, Macey’s Corner, Jones’ Station, Arnold and Winchester. Under this plan the Festagallo property continued to be zoned “Agricultural”, which at that time permitted one family or two family dwellings. Previous to December 2, 1947, the Festagallos filed an application to rezone the property here in question from “Agricultural” to “Commercial”.

This rezoning was refused by the Commissioners. According to the information before us, the Commissioners refused eighteen other applications for rezoning of lands on the Ritchie Highway and the Revell Highway between 1946 and June 10, 1952. On October 30, 1951, the Festagallos filed with the Zoning Commissioner a petition for the rezoning of their property from “Agricultural” to “Heavy Commercial”, in order to permit the property to be used as a gasoline service station. On February 2, 1952, the Zoning Commissioner filed a report disapproving this application for rezoning and recommending that the zoning remain as established for the following reasons: “1.

The zoning plan for the Governor Ritchie Highway has established certain commercial intersections. These intersections are not completely developed along commercial lines at this time and therefore it is the opinion of the Zoning Commissioner that no additional commercial zones are necessary at this time. 2. In establishing the above plan the Board of County Commissioners took into consideration the key intersections on the highway. In the Arnold area it was determined that the key intersection is the one adjacent to- this intersection where there is now a blinker light ³⁷ and accordingly the commercial zone at Arnold was established at the latter intersection rather than at the one now under consideration. 3.

Nothing has taken place on the Governor Ritchie Highway since this request was originally filed and acted on by the Board of County Commissioners to warrant a change in the recommendation of the Zoning Commissioner at this time. 4. Letters of protest were received from seven (7) property owners in this area and no letters have been received in favor of the application.” The report of the Zoning Commissioner was approved by the Planning and Zoning Commission on March 20, 1952, and Mr. Rogers, the Zoning Commissioner, was requested to set a hearing before the Commissioners. On June 10, 1952, the Commissioners, by a vote of six to two, passed a resolution stating that after public hearings and after considering the reports of the Zoning Commissioner and the Planning and Zoning Commission opposing the change and upon viewing the site in question, they approved the requested change from “Agricultural” to “Heavy Commercial” for the property here in question. This resolution contained the following: “Whereas, the traffic on the Governor.

Ritchie Highway will be considerably increased upon the completion of the bridge over the Chesapeake Bay on U. S. Highway No. 50 thus increasing the need for areas zoned for commercial on the Governor Ritchie Highway, and Whereas, there is now an inadequate number of districts zoned as commercial on the Governor Ritchie Highway, said inadequacy resulting in unreasonable prices or rents being demanded by the owners of said commercially zoned properties, and Whereas, the topography of said lot is deemed to be unsuitable for residential or agricultural ³⁸ use because of its low lying character, its chief if not sole prospective use being commercial Whereas, it is the opinion of the Board that additional commercial zones at proper locations would not interfere with the safety, comfort, convenience and welfare of the users of the' Governor Ritchie Highway. * * *” On July 1, 1952, the Commissioners adopted a'new comprehensive zoning plan wherein the zoning of the property here in question was continued as “Heavy Commercial”. Of course, in passing upon the decision of the Commissioners, wé will consider only the facts and circumstances existing at the time the resolution was passed on June 10, 1952. Ón June 21, 1952, Philip E. Miller and wife and Carl E. Ortman and wife, owners of residences in the immediate neighborhood and taxpayers, filed a suit against the Festagallos and the Commissioners in the Circuit Court for Anne Arundel County, asking that the resolutions of the Commissioners of June 10, 1952, and July 1, 1952, be stricken down. On March 4, 1953, a second supplemental bill was filed by the Millers and the Ortmans against the Festagallos, the Commissioners and the American Oil Company, alleging that the American Oil Company had by decree become the transferees of the Festagallo property. This bill further alleged the original zoning of the Festagallo property as “Agricultural”; the second application for rezoning to “Heavy Commercial”; the disapproval of the Zoning Commissioner and the Planning and Zoning Commission; and the action of the Commissioners in rezoning the property as “Heavy Commercial”.

It also alleged that á building permit was about to be issued to permit the erection of a gasoline station. The petitioners claimed that the establishment of this service station would seriously depreciate their properties; would tend to destroy the comfort, well being and property rights in the neighborhood; that the action of the Commissioners was arbitrary, unreasonablé and discrimina ³⁹ tory and without any substantial relation to the public health, morals or general welfare; and that such an action constituted “spot” zoning. Petitioners asked that the resolutions of June 10, 1952, and July 1, 1952, be declared unconstitutional and void and that an injunction be issued restraining the operation of the resolutions. On August 6, 1952, the Magothy River Association filed a petition stating-that it consisted of approximately seven hundred members who were vitally interested in land in the Third Election District of Anne Arundel County and asked to intervene in the case, which permission was granted.

From a decree granting the relief prayed in this second supplemental bill, the American Oil Company alone appeals to this Court. The law is well settled in this State that where a legislative body under powers granted ,by the Legislature has enacted a zoning ordinance, the review by the courts is restricted and narrow in scope. Such an ordinance being in the exercise of the police power is presumed to be valid. A successful attack must show affirmatively and clearly that the ordinance is arbitrary, capricious, discriminatory or illegal.

The presumption of reasonableness and constitutionality of the ordinance applies to rezoning as well as to original zoning, though not with as great force. The original