Bowie v. Board of County Commissioners

McWilliams, J., delivered the opinion of the Court. Appellants, aROUSEd 1 by the impending invasion of their heath by General Electric Company (GE), have adopted, as a means of resistance, a kind of scorched earth policy with Fabian overtones. Aware of GE’s unwillingness to exercise its option to buy the 1,087 acre tract (the property) upon which it proposes to build a $250,000,000 plant unless and until the zoning is changed to ID (Industrial Development District), appellants fought the application for reclassification both before the County Commissioners and in the Circuit Court for Howard County. They lost both of those battles; here they lose the war.

A proper understanding of this appeal requires a brief reference to the short history of the “New Town of Columbia.” ⁶⁰⁴ In August 1965 The Howard 'Research -andi Development Corporation, a Maryland corporation (HRD), had accomplished the acquisition of about 14,000 acres of land,in Howard County. On 10.August 1965 the Board of County Commissioners (the Copamissioners) designated the. entire tract as a ‘[New Town .District” .pursuant to existing zoning regulations. Under the direction of.-The Rouse Company which owns .50% of the stock of HRD (the other. 50% is owned by a life insurance company) the new town began to evolve. Early in- 1968 11RD .learned that GE had in mind building a major plant somewhere in the northeast.

GE took a very hard look at proposals made by BIRD and in June 1968 it took an option to purchase the property at a price $1,700,000 less than BIRD had paid for it. GE, driving a hard bargain, insisted that the property he rezoned and ready for construction by early 1969. The property, which abuts the southern boundary of Columbia, is approximately square, about one and one-half miles on each side. Interstate Route 95, now under construction, is its eastern boundary; the north side is bounded by new Maryland Route 175, parts of which are under construction; the western boundary is New Berger Road, planned and engineered as a four-lane dual highway and to be constructed by BIRD at its expense; the southern boundary will be a spur of the C&O-B&O Railroad which' is béing extended from Annapolis Junction, through which the railroad’s main line passes.

The northernmost 377 acre portion of the property is part •of the 14,000 acres that were classified “New Town District” in 1965. On the Preliminary Plan approved in connection with the 1965 rezoning- it was designated as an “employment uses” area in which the regulations permit local and general business, motels, shopping centers, and light and restricted manufacturing. HRD -recently acquired the remaining 710 acres for 'the specific purpose-of meeting GE’s requirements. All but 100 of the 710 acres had been owned by two sand and gravel companies and there is uncontradicted evidence that their mining ■operations (a non-conforming use) had, been both active and extensive.

All but 57 acres (zoned M-l [Heavy Industrial]) •of the sand..and gravel companies’ .property had been zoned R-20 (Residential-Half acre lots) in' the comprehensive zoning ⁶⁰⁵ of 1961. The 100 acres acquired from others are also in the R-20 classification. 1 LRD and GE seem to have agreed that the county’s existing zoning classifications were not compatible with GE’s proposed use of the property. GE contemplates “the development of a production and distribution facility designed to supply the full range of major home appliances to the eastern seaboard of the country.” The plant is to consist of buildings aggregating 4,500,000 sqitare feet of floor space, costing not less than $250,000,000. An annual payroll of $100,000,000 is expected to be distributed to a minimum of 12,000 employees.

Having concluded that the creation of a new zoning classification would be necessary to accommodate GE’s “modern complex of industrial facilities” 1 f RD, on 18 September 1968, filed a petition to amend the zoning regulations by adding thereto new Section 14A creating the concept of the Industrial Development (ID) Zoning District and providing the procedure for establishing such districts. At the same time HRD filed another petition seeking the deletion of the 377 acre portion from the New Town District so that it could be made a part of the 1,087 acres under option to GE. HRD also represented to the Commissioners that reclassification of the 1,087 acres to ID would be sought, if and when the Commissioners enacted Section 14A. Pursuant to a proper notice by publication the Commissioners held the scheduled hearing, in respect of proposed Section 14A, on 11 October 1968.

Experts and employees of HRD and GE testified at length in support of the adoption of the new section. A number of residents testified that they favored its adoption. Mrs. Ella Mae Bowie was the only one of the appellants who testified at that hearing. She said she had “had an opportunity to read and digest” Section 14A; she said she was in favor of “orderly industrial development” in Howard County; but she couldn’t say whether she was for Section 14A or against it.

The report of the Howard County Planning Commission recommended approval with some changes. On 15 October 1968 the Commissioners adopted Section 14A, after having included the changes' recommended by the Planning Commission. plus a few of their own. ⁶⁰⁶ On 11 October 1968, the Commissioners also heard (immediately following the Section 14A hearing) testimony in respect of HRD’s petition to delete the 377 acre portion from the New Town District. Counsel for the protestants (appellants included) said he thought it was “necessary to agree to the deletion. We have no opposition to that,” he said, adding that the protestants were “not going to raise any opposition.” There followed then a lengthy colloquy between counsel and the Commissioners, after which, on motion of the protestants, the hearing was continued to 15 October at 1:3G p.m.

Other than to introduce (by stipulation) the testimony offered in the hearing on Section 14A, the protestants presented nothing further when the hearing was resumed on 15 October. On 16 October 1968, the day after the Commissioners enacted Section 14A, HRD filed its petition for the reclassification of the property to an ID district. Included, of course, were the 377 acres deleted from the New Town District. The hearing, of which proper notices had been given, was held on 1 November 1968.

First off the protestants, now represented by new counsel, pressed for a postponement. It was denied, as was another request made at the close of petitioners’ case. Employees of both HRD and GE testified at length in support of the reclassification to ID. There was also an abundance of testimony from experts in the field of real estate, planning and zoning' to the same effect.

A number of citizens voiced support. The report of the Planning Commission recommending the reclassification and giving its reasons therefor was filed. The Howard County Metropolitan Commission offered no objection. Neither did the State Roads Commission.

From the testimony, surveys, maps, plats, reports and studies before the Commissioners one could conclude without difficulty that in 1961, when the comprehensive zoning map was adopted, Howard County was distinctly rural in character. Nearly all of the property was classified R-20. Adjacent areas were classified either R-20 or R-40 (Residential —1 acre lots). A narrow, secondary road provided the only access to the property.

No rail service was available. Other than farming, the sand and gravel operations constituted the only business activity in the area. One could also arrive at the following conclusions. The rezoning in 1965 of the adjoining ⁶⁰⁷ 14,000 acres (including the 377 acres of the property) to a New Town District resulted in the birth of Columbia and the beginning of its sturdy adolescence; its present population is said to be about 4,000.

The increase in sand and gravel operations brought about the reclassification of 57 acres of the property to M-l. Interstate 95, in 1961 nothing but a dotted line on the maps, was, in 1968, under construction along the eastern boundary of the property. The interchange of the new four-lane Route 175 and Interstate 95 in the northeast corner of the property was being built in 1968 but it was unheard of in 1961. New Berger Road (North South Parkway) along the western boundary of the property had not been contemplated in 1961.

No one gave rail service a thought in 1961 because there was no need for it, but a representative of the railroad’s Industrial Development Department testified (in November 1968) that 37 men had been busy for nearly a year furthering the planned extension of trackage to Columbia by way of the property. Of the appellants only Airs. Bowie and the McMullens testified. In Mrs. Bowie’s opinion, as she expressed it, while “industry is very important * * * the value of * * * [her] property was going to drop” and the relocation of roads would cause some inconvenience.

Mr. McMullen expressed some uneasiness about the effect of GE’s activities on the value of his property. He thought “property values would definitely go down.” Mrs. McMullen expressed similar misgivings. Mr. McMullen returned to the witness chair later on and told of his investigation of GE’s plant at Eouisville, Kentucky. Plis comment is of interest : “* * * I would like to say that all the information that I obtained [from Eouisville] was most favorable.

The people down there were only unhappy with General Electric because they weren’t looking for more acreage down there and that they looked upon them as being first rate corporate citizens. That’s all I have to say.” Mrs. Carroll E. Lonas (not an appellant), felt that the value of her property would be diminished. No expert testimony was produced on behalf of the appellants or other protestants. ⁶⁰⁸ nor was any effort made to support the anticipated decline in the. value of their properties. Indeed, there was considerable expert-testimony to the contrary.

On 4 November 1968 the Commissioners approved the deletion of the 377 acres from the New Town District and the reclassification of the property to ID. Their findings were as follows: “(a) That the Petitioner's preliminary plan introduced in evidence meets the requirements of Section 14-A of the Zoning Regulations. “(b) That if the petition is granted, the subject property will be used as an industrial development under the ownership of The General Electric Corporation. “(c) That the intent to develop the tract as an industrial development is bona fide and that the parties involved have the resources to develop it in accordance with the preliminary plan introduced in evidence. “(d) That the Petitioner and the parties involved in the proposed development of the subject property have the requisite intent and capability to fulfill their additional contractual requirements, if this rezoning is granted. “(e) That the granting of this rezoning is in the public interest and will promote the public health, safety, morals and general welfare. “(f) That the granting of this rezoning and the industrial development of the subject tract is not inconsistent with and is compatible and harmonious with the comprehensive plan of development of Howard County, as evidenced by the report of the Planning Commission. “(g) That the granting of the rezoning and the development in accordance with the preliminary development plan submitted will not adversely affect the surrounding properties. “(h) That the subject property is suitable for the development of a large industrial complex.” ⁶⁰⁹ On 3 December 1968 the appellants filed their bill of complaint in the Circuit Court for Howard County. After reciting the facts they alleged that the “act of the * * * Commissioners * * * was illegal, unconstitutional, arbitrary, capricious, discriminatory, invalid and void * * * [stating as] reasons: “(a) That there was no substantial or sufficient evidence to support the finding of said Board that said reclassification was warranted due to a change in the character of the neighborhood. [Emphasis added. | “(b) That the zoning reclassification is not in accordance with the General Plan of Howard County as adopted July 20, 1960. “(c) That there was not sufficient time allowed to acquire expert testimony to refute the recommendation of the Planning Commission of Howard County. “(d) That said reclassification is strictly for the private interests of private individuals and will be a detriment to the residential areas in said neighborhood. “(e) That said reclassification will result in a congested and harmful traffic pattern within the area. “(f) That said reclassification will adversely affect the said properties of your Complainants and greatly depreciate the value thereof.” The case came on for trial before the chancellor, Macgill, C. J., on 27 January 1969. The appellants repeated substantially the same testimony given before the Commissioners.

No expert testimony was offered although on 2 January 1969 Judge Mac-gill, over the objection of HRD, had indicated that “he would hear additional testimony in open court should the Complainants desire to produce such.” HRD offered additional testimony but it was concerned chiefly with appellants’ alleged lack of standing. Judge Macgill filed his opinion on 31 January (four days later) ; he commented on his expedition in this regard: “When the matter came on for hearing before the writer in open court, on January 27th, 1969, a cer ⁶¹⁰ tain amount of additional testimony was put on by the Complainants and transcripts of the testimony taken in several hearings before the Board of County Commissioners were offered in evidence along with a quantity of exhibits which had been hied with and considered by the Board in arriving at its decisions. This Court has been asked to give its decision on or before January 31st and it has agreed to do so, but it is regrettable that the consideration of a matter so complicated and of such importance should be limited to such a short period of time.” Judge Macgill concluded that the “circumstances are sufficient to show that Mr. and Mrs. McMullen, at least, have standing to maintain the action.” In this Court HRD put it to> us quite strongly that Judge Macgill erred in this regard and that the appeal should be dismissed. We shall not undertake analysis of the evidence relied upon by HRD to support its-contention.

It suffices to say we are not persuaded that Judge Macgill’s finding was clearly erroneous. HRD insisted below, as it did here, that the ID district is in reality a “floating zone.” We think Judge Macgill