Birckhead v. Board of County Commissioners

Hammond, C. J., delivered the opinion of the Court. The appellants are protestants against the rezoning of some 27 acres of land in Prince George’s Coufity from Rural Residential to General Commercial, a rezoning suggested by the general plan for the area, approved both by the technical staff of the Planning Commission and the Commission, granted by the District Council and affirmed by the Circuit Court, McCullough, J. To bolster the weakness of their case on the merits they seek to overturn the rezoning, not only on the usual grounds, but also on the claim of irregularities and denials mounting up to the deprivation of the constitutional right to procedural due process. The comprehensive zoning was enacted in 1957. The property owner makes no claim of original error, relying solely on substantial change in the character of the neighborhood.

The protestants sought to confine significant nearby rezonings to those occuring after 1965 when the original zoning maps were readopted, but it is clear that the legislative action in 1965 neither was intended to be nor was a comprehensive rezoning but was only housekeeping to straighten out clerical and mechanical errors that had accumulated over the years. The controlling date is 1957. The property lies on the westerly side of Indian Head ⁵⁹⁶ Highway immediately south of its intersection with Livingston Road about four miles south of the Capital Beltway and is the site of a drive-in movie theatre, the smallest, we are told, in the County. The theatre is a non-conforming use.

The owner wishes to enlarge the theatre and build an indoor theatre and, perhaps, some stores. Much of the property is vacant and wooded, as is the adjacent land to the south, southwest and northwest. Vacant partly wooded land lies to the north and west. Nearby commercial uses, rezoned since 1957, include a real estate office 150 feet to the north, a lumber company and boat repair shop 750 feet away and, somewhat closer, a large restaurant.

Within little more than half a mile are other lots rezoned to commercial but not yet developed. Within a radius of a mile fourteen rezonings mostly to commercial, including a shopping center in operation, have come about since 1957. The zoning and planning expert who testified for the property owner — his sound qualifications were graciously and generously conceded by the appellants — testified to these changes to commercial uses and said they were significant in evidencing a substantial change in the character of the neighborhood. He also testified that recently constructed sewerage facilities, including various sewage disposal plants, one of which was Piscataway, permitted intensified use in the area and that existing roads widened since 1957 were fully adequate to service the property and that there was easy access along 800 feet of road frontage.

The opposition evidence was that the area still seemed rural, that further commercialization would increase traffic dangerously, particularly as far as school children were concerned, and add problems of dirt and dust. Another witness feared the “domino theory” would operate if this rezoning were granted. The Planning Commission and its technical staff relied on the South Potomac Sector Plan which was adopted by the Commission in 1967 and by the Council in 1968, which puts a symbol on the subject property proposing “ ‘a semi-metropolitan use or facility’ for commercial pur ⁵⁹⁷ poses.” This was one reason for their recommendation of approval of the requested rezoning. The other was that “the [subject] property is located at a major highway intersection and access to this proposed commercial area would be efficient and adequate to serve the volumes of vehicular traffic generated by the use.” The hearing before the Council was on the instant application and four other similar applications.

It began on July 3, 1968, and ended on July 5. When all witnesses pro and con had been fully heard and fully cross-examined, the Council recessed the hearing until September 4 in order to obtain official information on access to Indian Head Highway and on the newly built Piscataway sewage treatment plant which in part would service the area. The Chairman said: “The [Council] will recess these cases in order to receive additional information from State Roads or the Federal Roads, from the Washington Suburban Sanitary Commission, and any other technical information which is necessary. Of course, it will not receive any additional information from either applicants or opposition, from this point on.” “[Cjopies of the reports that this [Council] receives and considers will be mailed to both the applicants and the opposition. “And they will be given an opportunity to submit written rebuttal evidence, if they so desire.” “Did you hear that, Mr. Avrutis [of counsel for the protestants] ?

You [the protestants] will have the opportunity to submit written rebuttal,” to which Mr. Avrutis replied: “Yes.” The State Roads Commission chairman wrote the Council that the federal government, which built and enlarged Indian Head Highway, would permit access to it from State roads. On July 10 a representative of the Washington Suburban Sanitary Commission appeared before the Council to describe the Piscataway plant and its opera ⁵⁹⁸ tions. One of the protestants, the president of a neighborhood association, also spoke to the Council telling them of his visit to Piscataway and his opinion of its overloading and its defects and inefficiencies. He submitted pictures in support of his claims.