Bauserman v. Barnett

Digges, J., delivered the opinion of the Court. This zoning case evolves from an attempt to have a five acre parcel of land located in Colesville, Montgomery County, reclassified from R-R (Rural Residential) to C-l (Commercial). A similar attempt failed in 1965. The present application arrives here without the blessing of the Planning Commission’s technical staff, the Planning Commission itself, the District Council hearing examiner, the District Council or the trial court (Clapp, J.). ²⁶⁰ The property is rectangular in shape, with a frontage of 265. feet on the west side of New Hampshire Avenue, a depth of 790 feet and a rear property line of 294 feet.

It is located about 500 feet north of the intersection of New Hampshire Avenue and Randolph Road. Abutting the front portion of the northern boundary of the subject property is a C. & P. Telephone Company exchange, approved as a special exception on R-R zoned land in 1956. North of this facility is a horticultural nursery on land zoned R-R and the land still further north has predominantly this same classification, with scattered residential development. To the west of the subject property there is vacant land for about 1200 feet, beyond which are single family subdivisions, all in the R-R zone.

South of the subject property extending to Randolph Road there are approximately ten acres of undeveloped land zoned C-l. The southwest and northwest quadrants of the New Hampshire Avenue-Randolph Road intersection are zoned R-R except six acres zoned and developed with C-l uses at the southwest corner; an existing shopping center with C-l zoning occupies the northeast corner, and partially developed C-l zoned land is at the southeast corner. The total commercially zoned acreage at the four quadrants of the intersection is twenty-five, with the eastern half of the quadrant having nine acres and the western half, sixteen. After abandoning in this Court a contention made in the trial court that there was mistake in the original zoning in 1954, appellant now says reclassification to C-l zoning is required because (1) there exists substantial change in the neighborhood; and (2) refusal to reclassify would deprive the owners of all beneficial use of their property so as to result unconstitutionally in a confiscatory taking of the land.

I Appellants attempt to support their contention that there has been sufficient change in the neighborhood to Master Plan for the Upper Northwest Branch Water-compel the rezoning they seek by demonstrating that the ²⁶¹ shed 1 has been violated in numerous instances and because the area is already commercial as a result of changes in other quadrants of the New Hampshire Avenue-Randolph Road intersection. In many cases we have stated that a court in reviewing acts of zoning authorities “will not substitute its judgment for that of the authority unless the latter’s action was arbitrary, capricious or illegal and that if the facts were sufficient to support the decision the question decided was fairly debatable and the decision must be upheld.” Furnace Branch Co. v. Board, 232 Md. 536, 540 , 194 A. 2d 640 (1963), quoted in DePaul v. Board, 237 Md. 221 , 205 A. 2d 805 (1965). It is only where the record is lacking in disclosing any supporting facts a court may void the administrative zoning action. DePaul v. Board, supra.

In the instant case appellants introduced in evidence seventy-five zoning resolutions of the District Council granting rezoning requests contrary to the Upper Northwest Branch Watershed plan. Since none of the rezoned property lies within two miles of the subject property there was ample justification for the hearing examiner’s conclusion, approved by the District Council, that they were too remote in distance to be within the defined neighborhood. Goucher College v. DeWolfe, 251