Buckel v. Board of County Commissioners

ALPERT, Judge. On October 14, 1987, Hemby King Development Group (“Hemby King”) entered into a contract of sale with several individuals to purchase land located in the New Market District of Frederick County, Maryland. On October 30, Hemby King filed an application to rezone the purchased land from an Agricultural Zoning District designation to a General Commercial Zoning District designation. Although the Planning Staff to the Frederick County Planning Commission recommended denial of the application, the Commission moved to recommend conditional approval of the application to the Board of County Commissioners (the “Board”).

A hearing before the Board was held on March 31, 1988. At the conclusion of the hearing, the Board voted to approve the requested rezoning with several conditions. On April 19, 1988, the Board issued a formal, written opinion in which it set forth its findings in support of the zoning change. Richard D. Buckel and Edward W. Rossig, Jr., residents of New Market, appealed the Board’s decision to the Circuit Court for Frederick County.

Subsequently, the municipality of New Market sought to intervene as an appellant. After a hearing on November 2, 1988, the trial court (Dwyer, J., presiding), rendered its decision and issued a written order, affirming the decision of the Board and denying New Market’s motion to intervene in the proceedings. Buckel, Rossig, and New Market note timely appeals from the trial court’s decision. The land in question is a seven acre parcel of land located immediately north of Interstate 70 and east of Route 75 ³⁰⁸ outside of New Market in Frederick County, Maryland. 1 Hemby King seeks to rezone the property to a General Commercial designation in order to construct a motel on the property.

A legislative body may change the zoning classification of a parcel of land within the jurisdiction of the governmental body “based upon a finding that there was a substantial change in the character of the neighborhood where the property is located or that there was a mistake in the existing zoning classification.” Md.Ann. Code Art. 66B, § 4.05(a); Frederick County Code § l-19-66(a). These statutes are essentially codifications of the “change-mistake” rule developed at common law. Where the legislative body finds that a change or mistake has occurred, an appellate court must uphold that decision “unless it is shown that this action was arbitrary or capricious because not enough evidence had been adduced to make the issue ‘fairly debatable.’ ” Mayor of Rockville v. Stone, 271 Md. 655, 661 , 319 A.2d 536 (1974). The Board of County Commissioners based its decision to grant, by way of ordinance, the application for rezoning to a General Commercial designation upon its finding of “a substantial change in the character of the neighborhood where the property is located.” Our review of the record on appeal does not reveal sufficient evidence to render the “substantial change” issue fairly debatable; therefore, we reverse.

To put our decision in proper focus, we review the record before the Board. In a document entitled Zoning Map Amendment, Case number: R-87-66, the planning staff of Frederick County Planning Commission recommended denial of Hemby-King’s application for rezoning. This report ³⁰⁹ stated that since 1977 2 forty new residential dwellings have been constructed in the neighborhood. 3 The report also indicated that properties to the north, west, and south of the subject property were zoned General Commercial, and property to the east was zoned Agricultural. The report listed several rezonings that had taken place in the neighborhood subsequent to 1977, two of which constituted rezonings from Agricultural to General Commercial.

In addition, the report provided that the subject property is adjacent to a shopping center under construction. Furthermore, the report noted that site plans for another shopping center across Rt. 144 and a restaurant and motel to the west across Route 75 have been approved. The Comprehensive Plan calls for a General Commercial future use of the subject property because it is located within an area “anticipated to receive significant development activity.” In a section of the report entitled “Change in the Neighborhood,” the staff stated: In the opinion of the staff although some change has occurred, it is located principally west of New Market and not in the immediate vicinity of this site. Although several site plans and subdivisions have received preliminary approval, none, except for the one shopping center, have begun construction.

The staff does not feel this represents a change in the neighborhood which warrants additional commercial zoning on this site. Finally, in further support of its recommendation of denial, the staff noted that rezoning the subject property in light of several undeveloped properties currently zoned General Commercial “would be in excess of what is planned ³¹⁰ or appropriate for future residential development in the area or to serve the motoring public using 1-70.” The Planning Commission issued a written recommendation for conditional approval 4 to the Board. Although the Planning Commission cited a “[c]hange in the character of the neighborhood” as its reason for approving the rezoning, it did not include any findings of fact with its written recommendation. Testimony taken by the Board at the public hearing focused largely upon the future availability of water and sewer and the adequacy of a water well system and septic tank for the proposed use of the property, and the possibility of an architectural review committee.

The discussion of a substantial change in the community that did arise was in the form of arguments by opponents of the application for rezoning. Mary E. Storm, attorney for the Town of New Market, stated that the establishment of nine new commercial uses in and around New Market since 1977 was offset by subsequent discontinuation, other business closing, or by the fact that in several cases the prior use was also commercial. Several other residents testified that no substantial change has occurred in the neighborhood. The Board’s opinion and findings were codified in Frederick County ordinance 88-9-486.

The Board found a change in the neighborhood on the basis of the Staff report, which cited the 40 additional residences constructed since 1977, the shopping center under construction, and the proposed shopping center with site plan approval. The Board’s opinion reiterated the Commission’s recommended conditions on approval of the rezoning. The circuit court basically held that the evidence was “fairly debatable” as to a substantial ³¹¹ change in the neighborhood justifying the rezoning of the subject property. We first consider the Board’s reliance upon the shopping center under construction in support of its finding of a substantial change in the neighborhood.

The uncontradicted evidence before the Board indicates that this property was zoned General Commercial prior to the 1977 comprehensive zoning. It appears that either a service station or small shopping center has been anticipated for this site since 1971. It is well-settled that changes contemplated prior to the latest comprehensive zoning are usually not relevant in determining whether a substantial change has occurred to support rezoning of property. See Prince George’s County Council v. Prestwick, Inc., 263 Md. 217, 228 , 282 A.2d 491 (1971); Chatham Corp. v. Beltram, 252 Md. 578, 585-86, 251 A.2d 1 (1969); Smith v. Board of County Comm’rs, 252 Md. 280, 284, 249 A.2d 708 (1969); Helfrich v. Mongelli, 248 Md. 498, 505 , 237 A.2d 454 (1968).

Changes in the character of a neighborhood prior to adoption of comprehensive zoning may be considered only in conjunction with subsequent changes. Cardon Investments v. Town of New Market, 55 Md.App. 573, 587 , 466 A.2d 504 (1983), aff'd, 302 Md. 77 , 485 A.2d 678 (1984). Considering that this change was contemplated for several years prior to the 1977 comprehensive zoning and that its significance, if any, to post-1977 changes can only be correlated to the single parcel of real estate in the neighborhood rezoned to general commercial, the Board’s heavy reliance on the change is misplaced. As for the increase in the number of residential dwellings, as well as the intensification of residential zoning, these changes do not per se warrant rezoning especially where the rezoning is to a commercial rather than a residential designation.

See Prestwick, supra, 263 Md. at 229 , 282 A.2d 491 ; Heller v. Segner, 260 Md. 393, 399 , 272 A.2d 374 (1971). We also cannot ignore the fact that the intended use of the subject property — a motel — surely can ³¹² not be justified solely on the basis of a moderate increase in residential dwellings in an area of the state that would be fairly characterized as rural. Thus, we are left with one recent rezoning classification to General Commercial designation of a property stated to be used as a small shopping center and motel. 5 During the hey-day of Court of Appeals zoning decisions in the late 1960’s and early 1970’s, several important and somewhat seemingly contradictory rules in examining legislative or administrative rezoning decisions came to light. Judicial review of a legislative or an administrative body’s zoning decision was limited to determining whether the evidence to support such a decision was fairly debatable.

The term “fairly debatable” intimates that appellate courts would give a fair amount of deference to the