Board of County Commissioners v. Kay

⁶⁹² OppEnhEimer, J., delivered the opinion of the Court. This zoning appeal was regarded by Judge Bowie, in the Circuit Court for Prince George’s County, as a companion case to Board of County Comm’rs for Prince George’s County v. Edmonds, 240 Md. 680 , 215 A. 2d 209 (1965), filed today. As Judge Bowie pointed out, the property here involved is contiguous with the property in Edmonds and the applications for the rezoning in this case were heard before the Council on the same day as the application in Edmonds . Judge Bowie made the same ruling in Edmonds as to the legal effect of the master plan adopted by the Planning Commission as Judge Loveless made in this case.

However, in the argument on this appeal, the appellees, the Kays, concede that, as we held in Edmonds , the conclusion of the lower court as to a presumption of a mistake in or a change in conditions by reason of the Commission’s adoption of a master plan after the original zoning of the Council is incorrect. Here, the appellees rely upon the contention that the decision of the Council denying the applications was unsupported by competent, material and substantial evidence, in view of the entire record, and that the decision of the court below, reversing the Council’s action, should be affirmed on that ground alone. The Council contends that the issue before it was fairly debatable and that, on the evidence, a reasoning mind could have found, as the Council did, that there was not sufficient change in conditions to grant the petitions for rezoning. The Kays’ counter-contention is couched in the pertinent language of Laws of Maryland 1959, ch. 780, § 1 subsec. 79, codified in Section 59-85 (i) (5) and (6) of the Prince George’s County Code. 1 We have heretofore declined to pass upon the constitutionality of these provisions, Sampson Brothers (Md.), Inc. v. Board, 240 Md. 116 , 213 A. 2d 289 (1965) footnote 1 and authorities therein cited, and find it unnecessary to do so now.

As in Board ⁶⁹³ of County Comm’rs of Prince George’s County v. Levitt & Sons, Inc., 235 Md. 151, 157-160 , 200 A. 2d 670 (1964), we assume, arguendo, the constitutionality of the provisions. We find the Council’s action was supported by, and not against, the weight of competent, material and substantial evidence in view of the entire record as submitted; that the action was not clearly erroneous; and that the issue before the Council was fairly debatable. The Kays own three parcels of land consisting of a little over fifteen acres situated along New Wheeler Road, approximately one-half mile from the District of Columbia. All three parcels are zoned R-R (rural residential) in the zoning map adopted by the Council in 1949.

In July, 1962, the Kays filed three applications requesting reclassification of each of the properties to the R-18 zone (multiple-family, low7 density residential). Two of the petitions, A-4507 and A-4508, were for the rezoning of the two parcels, with a total of almost nine acres, fronting on the “southwest” side of Wheeler Road. The third petition, A-4509, was for the rezoning of the third parcel, of about six and two-thirds acres, fronting on the “northeast” side of Wheeler Road. The Technical Staff of the Planning Commission recommended approval of the first two petitions with a minor exception not here material, and denial of the third, with a suggestion that most of that parcel may be favorably considered for reclassification to the R-80 zone.

The recommendations of the Staff were based upon the master plan adopted by the Commission in 1963 for the Henson Creek Watershed, the nature and legal effect of which were considered in Edmonds . The Commission, in substance, approved its Staff’s recommendation. A public hearing, at which testimony was taken, was held before the Council on the same day as, but independently of, the hearing on the Edmonds’ application. The Council disapproved all three applications, giving as reasons for its disapproval of the first two petitions that no need appeared for the rezoning and that there had been no change to justify a reclassification.

The Kays appealed the Council’s action to the Circuit Court for Prince George’s County. Judge Loveless decided the appeal on the record before the Council; he affirmed the Council’s action in denying the petition, A-4509, for the rezoning of the ⁶⁹⁴ parcel on the northeast side of Wheeler Road, but reversed the order which denied the other two petitions. The Council and one of the property owners who had opposed the rezoning before the Council appealed. The Kays entered no appeal as to the affirmance of the Council’s denial of the application for the third parcel, and that