Cardon Investments v. Town of New Market

Bishop, J., delivered the opinion of the Court. Cardón Investments appeals a Frederick County Circuit Court order that overturned a rezoning of its land. The appellees are the Town of New Market (being approximately 350 persons residing in and about the Town of New Market) and the Department of State Planning (Department), intervenor in opposition to the rezoning. Facts The subject property consists of 6.125 acres of vacant land located on the south side of Maryland Route 144 at its intersection with Maryland Route 75, immediately north of the Interstate 70 interchange.

It is bordered on the east by vacant agricultural land, and on the north, west and south by State Roads Commission rights-of-way for Maryland Route 144, Maryland Route 75 and Interstate 70, respectively. The subject property is just outside the limits of the Town of New Market. ⁵⁷⁶ The case before us began its legal journey on October 9, 1981, when appellant filed its application for rezoning, to permit the site to be used for a truck stop. For the purposes of this appeal, it is necessary that we look to some history of the subject property and rezoning in Frederick County. 1959 — The Board of County Commissioners adopted its first comprehensive zoning ordinance, which placed the subject property in zoning classification A-l, agricultural. 1971 — At the request of the then property owner, Humble Oil Company, the property was re-zoned from A-l, agricultural, to B-2, community business zone. The B-2 classification permitted an "automobile service station”; however, the County Code defined only an automotive service station as "[t]hat portion of property where flammable or combustible liquids are stored and dispensed from fixed equipment into the fuel tanks of motor vehicles . . .”.

(Frederick County Code, section 40-1). 1972 — Frederick County adopted a comprehensive land use plan with a "highway service commercial” classification, described as: "Highway Service Commercial (Purposes): To provide for vehicular transient services at major highway intersections. Areas Classified: 1. Intersections of major highways such as expressways, freeways and major arterial roads. 2. Intersections of highways between employment and residential areas.

Uses Permitted: Service stations, lodging and accommodations, restaurants, truck stop, rest and picnic areas, specialized tourist-oriented retail commercial and convenience goods.” (Emphasis supplied.) When appellant filed for rezoning of its land in 1981, the staff report of the Planning Department of Frederick County commented: ⁵⁷⁷ "VI. Relationship to the 1972 Comprehensive Plan. The published 1972 adopted Comprehensive Plan designates this site for Highway Service use. In addition, District and Regional Commercial Centers are designated in the 1972 Plan for this northeast quadrant of the I-70/Rt. 75 interchange.

The staff would note that the 1972 Plan filed in the Frederick County Courthouse includes an adopted Comprehensive Plan map . .. calling for the extension of High Density Residential use south of Rt. 144, east of Rt. 75, on the western portion of the subject site. The remainder of this tract is shown as Rural Reserve. In the staffs opinion, this reflects a mapping error since the staff does not believe this area was intended to be designated Rural Reserve due to the intensity of uses planned around this site and the designation of Highway Service in the published Plan map.” 1977— Frederick County adopted Ordinance No. 77-1-78 "to repeal and re-enact with amendments, Chapter 40, Title 'Zoning’ of the Frederick County Code.” This ordinance designated May 11, 1959, instead of the date of the passage of the ordinance for determining any changes of mistakes required to be shown for purposes of rezoning. The ordinance also created the G.C.

(General Commercial) and the H.S. (Highway Service) classifications. 1981 — Appellant applied for a Zoning Certificate Building Permit to construct a truck stop. Because a "truck stop” was not explicitly referred to in the Frederick County Zoning Regulations, appellant sought and obtained an opinion by the Zoning Administrator providing that a truck stop was a permitted use in the G.C. classification. The Town of NewT Market appealed this interpretation to the Board of Appeals, which affirmed the Zoning Administrator.

The Town then appealed to the Circuit Court. ⁵⁷⁸ While the above appeal was pending before the Circuit Court, the Board of County Commissioners enacted a zoning text amendment that defined truck stops and restricted them to the H.S. and light industrial classifications. The issue raised by the Town in the pending appeal became moot. Appellant then applied for rezoning of the subject property from the General Commercial classification to the Highway Service classification, to permit the property to be used for a truck stop. 1982 — The Board of County Commissioners passed Ordinance 82-2-246, which rezoned the property H.S. The Board agreed to rezone the site because: 1. The site was designated as H.S. on the 1972 comprehensive plan; and 2.

Substantial change in the character of the neighborhood warranted reclassification of the property (the Commissioners adopted the staff report, which measured the change since 1959). The Commissioners also found that there was no mistake in the 1977 zoning of the property in the G.C. classification. The Town of New Market then appealed to the Circuit Court for Frederick County. At this time, the Department of State Planning (Department), which had not appeared before the Commissioners, filed a timely intervention and appeal from the reclassification ordinance, in accordance with Article 88C, section 2 (r) of the Maryland Code.

An order of the Circuit Court for Frederick County dated May 4, 1982, designated the Department as a party. On July 26, 1982, the circuit court reversed the action of the Commissioners, thereby denying the reclassification. This appeal is from the court’s order of August 10, 1982, implementing that decision. At the beginning of its oral opinion the circuit court pointed out that its function was to determine whether "the decision of the County Commissioners is erroneous as a matter of law,” not to substitute its judgment for that of the County Commissioners.

The court observed that it could not ⁵⁷⁹ make findings of fact, but could "conclude that there was not sufficient evidence before the Commissioners to make the findings that they did make.” When a local legislative body enacts a zoning ordinance, pursuant to powers granted by the Legislature, there is a presumption of validity, which applies with greater force original zoning than to rezoning. Where, however, "there is no room for reasonable debate, or a record barren of supporting facts ... the Court can declare the legislative action” invalid. Wakefíeld v. Kraft, 202 Md. 136, 141-42 (1953). This same standard is set out in Howard County v. Dorsey, 292 Md. 351, 355-56 (1982); Boyce v. Sembly, 25 Md. App. 43, 49-50 (1975); Rockville v. Henley, 268 Md. 469, 472-73 (1973).

See generally: 6 R. Rohan, Zoning and Land Use Controls, §39.02 [3] (1983). In the case sub judice the circuit court set out the authority of the County Commissioners, which "is limited to circumstances where there is sufficient evidence for them to conclude that the zoning was mistakenly applied in the original zoning or that there had been substantial changes in the character of the neighborhood to warrant the decision to make the change.” The circuit court, in its oral opinion, found that the record before it did not contain sufficient evidence of mistake or change in the neighborhood to justify the rezoning. Specifically, with regard to the change consideration date, it stated that: 1. In 1971 the Board of County Commissioners rezoned the property from an agricultural category to a commercial category.

The property continued in that classification until the time of the current attempt to rezone. This caused "a truncating ... of the circumstances or the necessity to view and consider changes prior to that date.” 2. The fact that the 1972 plan classified the property of H.S. is irrelevant to the Board of County ⁵⁸⁰ Commissioners’ determination to rezone in this case. 3. Textual changes in the 1977 ordinance created "refinements of the zoning classification”, which in turn required designating on the map those areas where the textual changes applied.

There was, accordingly, "a conscious determination to find the sites .. . appropriate for this highway service classification”, but the subject property was not one of them. 4. As a result, the time for "a consideration of the change in the character of the neighborhood” was 1977. With respect to evidence of mistake or change, the court stated: 5. The Commissioners made an express finding that there was no mistake in the general commercial zoning of the property in 1977. 6.

The changes set out by the Commissioners going back to the date that the court deemed appropriate would not call for a reclassification, e.g., — the nature, scope and location of the highway improvements had long been considered; their completion in 1974 is of "no telling consequences” in terms of the 1971 decision to place the property "in the commercial category . . .”. 7. The availability of adequate sewer facilities is not significant, though the system, of course, should "be able to take care of the property.” 8. The number of extensions of commercial zoning set out in the opinion of the Commissioners were "by their own findings ... of the same character” as those that had previously taken place, or had been previously considered, and therefore "do not meet the test of the change in character [of the neighborhood].” ⁵⁸¹ 9. The only change of consequence that was in evidence before the Commissioners was the text change of 1981. 10.

"Therefore, there is nothing to compel the conclusion that there has been such a change in the character of the neighborhood that it requires the rezoning.” The circuit court thus held that the date from which change in the neighborhood would be measured was not 1959, as provided in the 1977 ordinance, but 1977. Measuring from 1977 (or even 1971), the court found insufficient change to warrant rezoning appellant’s property. Appellant raises the following issues: I. Did the court err in finding that the change should be measured from either 1971 or 1977, and not from 1959, as set out in the ordinance?

II

Did the court err in finding that there was not sufficient evidence of change in the character of the neighborhood to support the reclassification?

III

Did the court err in finding that the reclassification was not a proper exercise of legislative discretion based on the Frederick County comprehensive plan? I. The Change Consideration Date Appellant argues that change should have been measured from 1959; it urges that the circuit court erred in treating the 1977 ordinance as a comprehensive rezoning, from which change must be measured. The 1977 ordinance, No. 77-1-78, contained the following provision, codified in the Frederick County Zoning Code as Section 1-19-67: "§1-19-67. Legislative intent for change or mistake criteria for rezoning.

It is the legislative intent of the board of county commissioners that any changes or mistakes ⁵⁸² required to be shown for rezoning subsequent to January 24, 1977, shall not be from such date, but changes in the character of the neighborhood or mistake in the existing zoning may be shown and considered as evidence by the board of county commissioners from the date of the original adoption of á zoning ordinance on May 11, 1959, or from the date of adoption of any future comprehensive regional zoning map amendment.” Appellant contends that a legislative intent to rezone comprehensively is a necessary precondition to application of the mistake/change rule. When, as here, the zoning authority expressly disavows such an intent, appellant concludes that a court cannot treat the rezoning as comprehensive. A. "Comprehensive rezoning” is a term of art with a specific legal definition set out by the Court of Appeals in numerous cases.

In Mraz v. County Comm’rs of Cecil Co. 291 Md. 81, 88, 89 (1981) the Court stated that: "The indicia of 'comprehensiveness’ in zoning are well established. A comprehensive zoning or rezoning must be well thought out, the product of careful consideration and extensive study, and based upon considerations concerning the common needs of the particular area. It must be designed to control and direct the use of land and buildings according to present and planned future conditions, to accomplish as far as possible the most appropriate uses of land consistent with the public interest and the safeguarding of the interests of the individual property owners. Other characteristics of comprehensiveness may be found in the fact that the zoning or rezoning applies to or covers a sub ⁵⁸³ stantial or wide geographical area, that it regulates all uses, and that it covers all of the usual factors of land utilization: height, area and use.

The fact that few changes in zoning are made does not affect the comprehensive nature of the zoning or rezoning. Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 702, 707 , 376 A.2d 483, 492-93, 495 (1977), cert. denied sub nom. Funger v. Montgomery County, 434 U.S. 1067 , 98 S.Ct. 1245 (1978) .” A statement of legislative intent is relevant to but not dispositive of whether a given rezoning is comprehensive. The reviewing court must look to the actual procedure used and provisions of a zoning ordinance to determine if it meets the definition of comprehensiveness set forth above.

The following sections from the preamble to the 1977 ordinance evince the deliberation and broad regulation of uses characteristic of comprehensive rezoning: WHEREAS, the Board of County Commissioners has considered the final recommendation of the Planning Commission entitled "Frederick County Proposed Zoning Ordinance”, dated September 14, 1976, and WHEREAS, the Board of County Commissioners proposed alternative changes to the Planning Commission recommendations, such changes being contained in a report entitled "Supplement To Frederick County Proposed Zoning Ordinance”, dated November, 1976, and WHEREAS, the Board of County Commissioners has held three (3) duly advertised public hearings on these proposed changes to the Zoning Ordinance and Map, and WHEREAS, the Board of County Commissioners has considered all comments received from the citizens of Frederick County at said hearing and all correspondence received within the ten (10) day limit following said public hearings, and ⁵⁸⁴ WHEREAS, the Board of County Commissioners hereby state their purposes and findings for adopting a new Zoning Ordinance and Map as follows: Purposes and Findings This Ordinance is the product of over one (1) year of studies, workshops and public hearings. After conducting hearings and workshops in the various planning regions of the County at which all citizens were invited to and did submit their views on the various proposals, the Frederick County Planning Commission held eleven (11) public hearings and the County Commissioners conducted hearings on three (3) separate days on the new Ordinance and the various proposals considered. There had been no comprehensive changes in the Zoning Ordinance Map and Text since 1959, at which time zoning was initiated in Frederick County. Since 1959, the County has experienced comparatively rapid growth; some 30,000 people have been added to the population; 51% of all new homes have been built since 1971.

From 1959 to 1974, some 1,076 farms have been eliminated, representing some 83,130 acres. Since the original enactment of zoning in 1959, the Zoning Map has undergone only piecemeal changes. During this past seventeen (17) year period there has been over 250 individual rezoning requests for changes and 160 of these requests have been approved. While almost every conceivable type of request has been approved — upzoning as well as downzoning, almost 100 of the approved Map changes involved taking land out of the Agricultural District.

By virtue of these rezonings there has been over 6,000 acres or almost 10 square miles of land rezoned from agriculture to a more intensive residential, commercial or industrial classification. ⁵⁸⁵ This new Ordinance provides for zoning districts which would allow a more intense use of land, establishes the relationship between the zoning districts and the areas designated for growth by the Comprehensive Development Plan, and increases the number of residential zoning districts from three (3) districts to six (6) districts, allowing more diverse densities and housing types than in the previous Ordinance. Since approximately 91% of the area of the County was and is in the Conservation Zoning District and the Agricultural Zoning District (approximately 25% and 60%, respectively), necessarily these districts received the most attention of the Planning Commission, its staff and the County Commissioners.” (Emphasis added.) The "Purposes and Findings” section continues with great specificity to set out the bases for the changes that were ultimately adopted. All but four of the changes recommended by the Planning Commission and its staff were adopted. Based on the foregoing, we hold that the 1977 Ordinance meets all of the criteria set out in Mraz, supra, and was, indeed, comprehensive rezoning.

B. Given that the 1977 rezoning was comprehensive, appellant maintains that change since 1959 nonetheless should have been considered in determining whether to reclassify its land. In Jay v. Smith, 34 Md. App. 538 (1977), we stated: "It is true that there are cases in which it has been said that 'changes’ antecedent to the last comprehensive rezoning may be taken into consideration, along with other changes, in the determination whether later piece-meal rezoning lawfully is permissible. In Town of Somerset v. ⁵⁸⁶ County, 229 Md. 42 , 181 A.2d 671 (1962), it was said at 48 [674]: Changes which may have occurred prior to the last comprehensive rezoning need not be wholly disregarded when a change from that zoning is under consideration. It may be — as was the case here — that it was a rather close question in the minds of the officials concerned whether a change in the zoning of the land involved should not have been made at the time of the last comprehensive zoning, and additional changes thereafter may bring the zoning status of the land as to which action