BOARD OF CTY. COMMISSIONRS FOR PRNICE GEORGE'S v. Meltzer

Prescott, C. J., delivered the opinion of the Court. Pursuant to Chapter 780 of Acts of 1959, the appellees filed a petition for review by the Circuit Court of Prince George’s County of the action of the District Council of the County (Council), which denied appellees’ application for reclassification of a parcel of land owned by them containing 86.939 acres. After hearing thereon, the court reversed the action of the Council, and ordered, on July 26, 1964, that the 69.15 acres (certain parcels, such as donations for a school site, construction of roads, etc., had been excepted by the applicants) be reclassified from R-R (rural residential) to R-18 (multiple-family, low-density residential). It is from this order that this appeal has been taken.

The questions presented for our decision are whether or not the action of the Council was supported by competent, material and substantial evidence in view of the entire record as submitted, and, if its action were so supported, was it against the weight of such evidence. At the outset, we would like to state that the facts for appellate review have been somewhat difficult to ascertain, with accuracy and precision, from the record extract. When a witness testifies from, or concerning, an exhibit, a party anticipating possible appellate review, should be careful to show the specific exhibit to which the witness is referring at any time during the course of his testimony. And when a witness says “over in here,” or “this little space outlined in black” (when there are more than one such spaces), indicating a location on an exhibit, the record should show the location to which the witness is referring.

Also, when the record extract refers several times to the “Gadowski tract” and thereafter several times to the “Gudelski tract” and reference is actually being made to one and the same ¹⁴⁸ tract, it is desirable to correct the record, or show that the one tract is known by both names. At the intersection of the Capital Beltway, the circumferential highway for the Nation’s Capital (Beltway), and St. Barnabas Road (St. Barnabas), the Beltway runs in a generally east-west direction. St. Barnabas crosses (or undercuts) the Beltway in a northeasterly-southwesterly direction. As it proceeds southwesterly from the Beltway, at a point some 500 to 600 feet, it crosses Oxon Hill Road, which runs nearly parallel to and south of the Beltway.

Still proceeding southwesterly at a point some 2400 feet from Oxon Hill Road, St. Barnabas intersects Bock Road. All of these roads, except the Beltway, are comparatively narrow secondary highways. The subject property lies on the southeasterly side of St. Barnabas and extends from a point shortly south of the intersection of St. Barnabas and Oxon Hill Road to a point 150 feet northeasterly of Bock Road. According to petitioner’s Exhibit 9, the property is completely surrounded by R-R classifications, except three small commercial zonings across St. Barnabas, one of which was occupied as a filling station, and one as a florist’s shop and greenhouse.

(At the time of the hearing before the Council, there had been two recent reclassifications from R-R to R-18 across Oxon Hill Road in a northeasterly direction, but the precise location was not shown; one consisted of 15 acres, the other 2¡Y¿ acres.) To the southeast of the property beginning about 150 feet therefrom, is a subdivision of single family dwellings, and it was from the dwellers therein that most of the opposition came. At the hearing before the Council, the Technical Staff report of the Prince George’s County Planning Board (Planning Board) was offered. It stated that the vicinity zoning pattern is depicted on Exhibit 9, which was adopted in 1949, and the pattern, generally, was “R-R zoning bounding the property on all sides.” The subject property is vacant and wooded; to the southeast is the single-residence subdivision mentioned above; to the southwest the land is vacant and wooded with the exception of three single family residences. The report mentions two of the small commercial classifications we named above.

The report further stated that this portion of Prince George’s ¹⁴⁹ County “is expected to be one of the fastest growing fringes of the District of Columbia during the next jem decades [italics ours] * * It mentions highways that may be constructed, and that a school site is to be located on the subject property. This is the substance of the report, as it is relevant here. The staff concluded that it would recommend the approval of the reclassification to R-18 for the 69.15 acres. The Planning Board approved its staff’s recommendation “as generally stating the Board’s opinion concerning this application.” It will be noted that, when boiled down, the staff’s recommendation is based almost entirely on the fitness of the property for the construction of apartments, and the anticipated increase in population and construction of new roads and a new school.

Counsel for the petitioners stated that the preliminary Land Use Map for this area indicated that the subject property “be incorporated for multi-family housing.” He then pointed out that a tract (consisting of some 67 acres) had recently been rezoned to C-2. (This tract may be roughly described as a long rectangular parcel of land located between the Beltway and Oxon Hill Road. We were informed the reclassification was made to permit the erection of a Regional Shopping Center. To the south of this property is Oxon Hill Road, then a substantial acreage of R-R classification, and then St. Barnabas Road is reached and has to be crossed to reach the subject property.) Counsel then stated that “parcels adjacent to the Gadowski [in reality Gudelski] tract have been zoned for apartment use, and there is a further area over in here [indicating] which has been zoned for” apartments.

He pointed out two of the small commercial classifications already named. Mr. Meltzer, a highly reputable builder who will develop the property if the rezoning stands, stated that the property was well suited for apartment construction, and a considerable portion thereof would be lost if single family residences were constructed, unless substantial grading were done. The petitioners offered an architect, a Mr. Cohen, who introduced a topographical map of the property and stated the property was very favorably adoptive to apartment construction. He was of the opinion that one of the favorable aspects ¹⁵⁰ of the property was that it was not directly on the Beltway, which would permit the developers to work out the roads to the Cloverleaf leading to entry thereon.

Then Mr. Robinson, a real estate expert, was produced. He thought the property was ideal for apartments. It was close to the Beltway; there was a need for apartments in this area; and apartment construction thereon would not depreciate the value of nearby residential properties. Mr. Giauque, a representative of the Park and Planning Commission then made a rather long statement.

In substance, it pointed out much of what has been said above, and elaborated upon possible new highways (these possible new highways were also mentioned in the Staff Report). Upon cross-examination, he stated that land upon which the new roads were to be constructed was still in private ownership and that he had no idea when the roads could be built. He further stated that a communication from the Washington Suburban Sanitary Commission informed the Commission that water was available at the intersection of Bock Road and St. Barnabas, and that “sewer would require an extension ranging from 500 to 1300 feet to serve this property * * *.” From observation, Mr. Giauque thought the sewer appeared to be “closer.” He was also of the opinion that “this section of the county is going to represent a population growth of some 400 per cent” i.e., the section “is going to have to take a certain number of additional people,” but no mention was made of zv'hen the 400 per cent peak load would probably be reached (the Staff Report referred to “the next few decades”). A member of the Board of Education stated that his Board, after consideration of the site proposed on the application, had concluded that it was sufficient to take care of school needs.

Nothing was said as to whether any plans were under way with reference to the construction of a school, and, if so, when the school might be expected to be erected. Before the case reached the Circuit Court for its consideration, a different site had been agreed upon by the applicants’ánd the public authorities. The opposition consisted of statements of nearby residents and petitions of objecting property owners. The witnesses were requested not to make repetitious statements or arguments.

Al ¹⁵¹ though they offered no expert witnesess as such, the opposition gave reasons, which were evidently persuasive to the Council, as to why the reclassification of this large tract should not be granted' at this time. Summarizing their testimony, they had no objection to their area being planned and developed in an orderly fashion and they realized that progress and change will eventually come, but they did oppose objectionable spot-zoning. In their opinion, there was no need for additional R-18 zoning in their area at present. There was no employment center nearby, and there was no assurance that additional roads, or the school, would be constructed as a part of the apartment complex.

Their present area schools were operating at capacity (really over capacity). They had no assurance that the Regional Shopping Center would ever eventuate. If the rezoning of this large tract were granted, it would be an opening wedge to allow additional changes. They felt that new developments should be scheduled so as to occur in proper sequence, so as to minimize the impact upon public facilities and dwellings already constructed.

The character of adjacent lands, upon most of which were constructed single family dwellings, had not changed to such an extent as to warrant, at the time of the hearing, the rezoning requested. In fact, the character of the neighborhood had not essentially changed; it was still a rural residential neighborhood of single-family, low-density housing. The roads in the area, including Oxon Hill Road, St. Barnabas, Bock Road, and Brinkley Road (an extension of Oxon Hill) are all very narrow, and at present are usually overloaded, especially during rush hours. Bock Road had been “patched so much” that the “highway people are now patching the patches.” There had been no showing that the owners of the subject land were being deprived of any reasonable use of their land.

And, although there had been small areas rezoned for high density housing, none existed within about 2 miles of the subject property. The Council took the application under advisement, and, on April 29, 1963, formally notified applicant’s counsel that the application had been disapproved for the reasons that “it is believed that this zoning is premature, is certainly spot-zoning, does not blend in with the present rural-residential surroundings, and that there have been no sufficient changes since the ¹⁵² zoning map was adopted to justify reclassification.” An appeal was promptly taken to the Circuit Court, and there the application was submitted to the court on the record made before the Council, with two stipulations added: (1) that on May 15, 1963, “the Park and Planning Commission adopted the Henson Creek Valley Plan with.the property in question