Board of County Commissioners v. Tipton

Barnes, J., delivered the opinion of the Court. The appellee, William H. Tipton, owned a tract of land in the First Election District of Howard County consisting of approximately 23 acres and located on the northerly side of the Washington Boulevard (U. S. Route 1), south of its intersection with Montgomery Road (the subject property). A 200 foot strip of the subject property adjoining the Washington Boulevard is zoned M-l (“fairly heavy manufacturing uses, excluding nuisance uses”). The rest of the subject property is zoned R-12 (residential, minimum lot of 12,000 square feet).

On the east of the subject property there is an existing trailer park; on the west is a junk yard. The only protestant who testified before the Board lived on Hunt Club Road and his dwelling is 1200 feet from the area proposed for trailers and an intervening property lies between his property and the subject property. Mr. Tipton, on August 7, 1964, filed an application with the Board of County Commissioners of Howard County (the Board) to reclassify the entire tract to a T-2 zone (trailer coach park). A hearing was held on the application on September 24, 1964 and the Board passed a resolution on November 12, 1964 denying the application, stating, in part, as follows : “The evidence adduced at the hearing is not, in the opinion of the Board sufficient to’ establish that there was a mistake in the original zoning of the property.

There was no testimony or evidence of such change in the neighborhood as would require the granting of the Petition. The Board is of the opinion that property can be reasonably utilized as it is presently zoned. “It is also apparent that this location is not the best for a Trailer Park because it would increase the concentration of T-2 Zoning in one area.” Mr. Tipton, thereafter, filed a bill of complaint in the Circuit Court for Howard County, and later an amended bill of complaint on March 5, 1965. In the amended bill of complaint he ⁸⁰ alleged that the action of the Board was discriminatory, arbitrary, capricious, illegal and unsupported by the evidence; that it was not required under the law to show any change in conditions or a mistake in original zoning to grant a reclassification to the T-2 zone; and, that the Board failed to give consideration to the testimony that the owners of the subject property had sought to use it under the existing zoning and had been unable to do this and failed to consider the evidence establishing a need for T-2 zoning in the area. It was prayed that an injunction be issued restraining the Board from interfering with the use of the subject property for the uses permitted in a T-2 zone; that the court declare that the existing zoning regulations as applied to the subject property are unconstitutional, invalid and void; and that the plaintiff have other relief.

The suit was submitted to the trial court on the testimony and exhibits comprising the record before the Board. The trial court (Judge Macgill) filed a comprehensive and well considered opinion on August 26, 1965 indicating that the Board had misapplied the law in regard to the T-2 zone and further that its action in denying the T-2 zoning was not supported by substantial evidence and was arbitrary, capricious and void. The lower court passed a final decree on September 17, 1965 granting the injunction as prayed. A timely appeal was taken by the Board from that decree.

The Board has only printed in the record extract the opinion and order of the Board, the pleadings in the Circuit Court, Judge Macgill’s opinion and the final decree. Mr. Tipton has printed as an appendix to his brief selected portions of the testimony of Faye A. Latham, Jr., the professional engineer and land surveyor, of Mr. Tipton, and of Art Presley a mobile home dealer, all of whom testified for the applicant before the Board. The full testimony before the Board, the exhibits and, most importantly, the Report of the Planning Commission of Howard County recommending approval of the requested change to the T-2 zone, are not printed by either party. The Board raises only two points in its brief: (1) the trial court erred in applying our decision in Costello v. Sieling, 223 Md. 24, 161 A. 2d 824 (1960) to the case at bar and it is still necessary for an applicant for a T-2 reclassification to es ⁸¹ tablish a change in conditions or a mistake in original zoning to obtain such a reclassification and (2) the applicant failed to meet the burden of establishing that the existing zoning deprived him of all reasonable use of the subject property and thus was an unconstitutional taking of private property.

These points were those also considered in the brief for Mr. Tipton, the applicant. Neither brief presents nor considers the issue of whether the action of the Board in refusing the