Bosley v. Hospital for Consumptives of Maryland

Barnes, J., delivered the opinion of the Court. The County Board of Appeals of Baltimore County (the Board) rezoned a 15.016 acre tract of land in the Ninth Election District of Baltimore County, owned by the appellee, Hospital for Consumptives of Maryland, commonly called Eudowood, from the R-10 and R-6 zones (residential lots of not less than 10,000 and 6,000 square feet, respectively) to the BL (business, light) zone. The Board’s action was affirmed by the Circuit Court for Baltimore County (Menchine, J.) on April 21, 1966. The appellants, who own and dwell in residences in the general vicinity of the 15.016 acre tract, protested the rezoning before the Board and took a timely appeal to this Court from the order of the Circuit Court.

The 15.016 acre tract (the subject property) is triangular in shape bounded on three sides by public roads, i.e., on the north by Joppa Road, a 48 foot paved road on a 70 foot right-of-way; on the east by Prince Road a 42 foot paved road on a 70 foot right-of-way; on the west-southwesterly side by Goucher Boulevard, which has a 110 foot right-of-way with two 36 foot paved lanes of travel. The proposed use to be made of the subject property by the contract purchaser, Vornado, Inc., is for a discount department store which will have a one-story building of 141,000 square feet with a parking area for 746 parking units. There are adequate public water and sewer facilities at the subject property for the proposed use. The existing topography of the subject property is irregular.

It is at the road level with Prince Road on the east of the site, but on the western one-third of the subject property—a triangular portion bounded by Joppa Road and Goucher Boulevard—there is a grade running as high as 40%. At the intersection of Goucher Boulevard and Joppa Road the property is 22 feet below the grade of the intersection. The original zoning map', placing the subject property in the R-6 and R-10 zones, is dated November 14, 1955. At that ¹⁹⁹ time neither Goucher Boulevard nor Prince Road were in existence, although there was testimony before the Board that the intention to construct these roads in the general area was known at the time the zoning map was adopted.

However, neither road appears on the zoning map. Prior to the adoption of the zoning map, the Hospital owned and used 300 acres of land which extended from Hillen Road on the south, to Joppa Road to the north and from the Green-brier Development on the west to Pleasant Plains Road on the east. This large tract was. reduced in 1954 by the sale of 150 acres to the Swarthmore Company, which developed the Eudowood Shopping Center, and by the sale of 20' acres to' the Bendix Corporation. The portions of the original 300 acre tract had been farmed by the Hospital prior to the sales.

The remaining land contained all of the hospital buildings and was used by the Hospital for its treatment of tubercular patients. Beginning in 1960, roads were extensively developed in the area. Goucher Boulevard (then called Taylor Avenue Extended) was constructed from Loch Raven Boulevard to Prince Road and Prince Road was constructed from Goucher Boulevard to Joppa Road. In 1964 Joppa Road was widened from a 22 foot paved road (including shoulders) to a 48 foot road, and by means of a 24 foot fill the elevation of Joppa Road was raised substantially to form an intersection at grade with Goucher Boulevard.

During this same period, Goucher Boulevard was extended from Prince Road to Providence Road on a 110 foot right-of-way providing two 36 foot wide paved lanes with a 12 foot median strip. The Plospital had protested the final location of Goucher Boulevard because it severed the subject property, containing the principal hospital buildings, from the remaining portion of the Hospital’s property. Notwithstanding this protest, the road was built in its present location. The Hospital closed on June 30, 1964.

The record does not indicate the value of the vacant buildings, but there was testimony that it cost the Hospital $10,000 a year to maintain them. An engineer produced by the applicant at the hearing before the Board, testified in detail concerning substantial improvements made in the water and sewerage facilities serving the subject property since the 1955 zoning map was adopted. ²⁰⁰ Bernard Willemain, a well-qualified land planner, testified for the applicant before the Board. In his opinion, the R-10 and R-6 zoning was incorrect when placed on the subject property-on November 14, 1955 since the zoning was inconsistent with the circumstances and knowledge that the County Commissioners had at that time. Mr. Willemain pointed out that the County Commissioners knew of the location of the property and its characteristics and that there was a proposed shopping center to be erected on 40 acres across the road from the subject property (25 acres of which was zoned B-L) subject to a contract of purchase when the zoning mapi was adopted.

Mr. Willemain testified that in 1954 the plans for extending Goucher Boulevard were based on the construction of a high level bridge which would be erected 20 feet above the existing railroad tracks in order to comply with the minimum requirements for steam and diesel trains. The proposed alignment of Goucher Boulevard at that time was different from the present existing road. In 1959, the railroad operation was discontinued and abandoned, so that Baltimore County was permitted to drop the originally proposed alignment and construction plans and to provide for the intersection of Joppa Road and Goucher Boulevard at grade. It was also pointed out at the Board hearing that there had been four substantial changes in the zoning in the vicinity of the subject property from R-6 to- R-A (residence-apartments) since the adoption of the original zoning map.

One rezoning application from the R-6 to the R-A zone was for the development of approximately 36 acres, including a high-rise apartment, whereby 832 apartment units were allowed. This rezoned parcel is located approximately one-third of a mile from the subject property in the area lying south of Hillen Road. The application was approved by the Board on March 19, 1963 and was later approved by this Court. See Rohde v. County Board of Appeals for Baltimore County, 234 Md. 259 , 199 A. 2d 216 (1964) in which we held that the Board did not act arbitrarily or capriciously in granting the rezoning as it was fairly debatable that the original zoning was erroneous or there had been a subsequent change in condition, or both.

Directly across from the subject property and within 200 ²⁰¹ feet of it, on the north side of Joppa Road and diagonally across from the intersection of that road and Prince Road, there have been three zoning changes. First, a rezoning from R-6 to R-A at Center Road and Joppa Road was approved by the Zoning Commissioner on July 26, 1965. Second, a companion property to that involved in the first change, located 137 feet west of Center Road on Joppa Road, was also reclassified from R-6 to R-A on March 22, 1962. No appeals were taken from either of these decisions.

Third, a request for a variance to adapt apartment buildings to a particular site was approved on July 12, 1963. In addition, the Board approved a special exception on July 14, 1964, for an elevator apartment building on a