City of Hagerstown v. Hutson

Hammond, J., delivered the opinion of the Court. The City of Hagerstown appeals from an order of the Circuit Court for Washington County which reversed the action of the Board of Zoning Appeals of the City in denying the appellees, the Hutsons, the right to use a residentially zoned lot for a filling station. The Hutsons acquired the lot in 1947. Zoning was put in force in Hagerstown on September 6, 1951, by the passage of an ordinance now codified as Ch. 24 of the Code of the City of Hagerstown (1956 Edition).

When acquired and when zoning was adopted, the lot had a frontage of one hundred four feet on Nottingham Road and a depth of one hundred eighty-six feet along Washington Avenue, narrowing as it went back, with a rear line of seventy-two and a half feet. Recently Washington Avenue was made the eastbound lane of the dual highway known as U. S. Route 40. In the process the State took the ten feet of the lot nearest ⁴⁷⁷ Washington Avenue, and raised the grade. In addition, three easement rights over separate areas of the lot were acquired.

The first was for a slope adjacent to Washington Avenue sixteen feet wide at the back and tapering to nothing at Nottingham Road. The second covered a small area at the intersection, and the third embraces a ten-foot strip, bordering the rear line of the lot, with a length of forty-eight feet. The last easement was for the purpose of receiving water from a twenty-four inch drain which crosses Washington Avenue and ends at the bottom of the slope on the Hutson lot. The building lines on the front and side of the lot are, under the zoning ordinance, twenty-five feet from the pavements on Nottingham Street and Washington Avenue, respectively.

The lot slopes away from both thoroughfares. In the rear, on the south, it is twelve feet below street level. When the building lines on both streets are taken into account, there remains an area available for a building site with a frontage of fifty-nine feet on Nottingham Road and a depth of one hundred fifty-one feet along Washington Avenue, to a rear line of thirty-seven and a half feet. The area involved was zoned originally for a community shopping center; but, because it has never been so availed of, the only uses permitted are, under Sec. 24.11 (2), “uses permitted in residential districts.” A number of houses of a market value of from $7,500 to $10,000 have been built nearby, either just before or since zoning was established.

The neighborhood is entirely residential except for a reservoir owned by the City, across the dual highway. The Hutsons, claiming that the diminution in size and the lowering of the grade of the lot caused by the new highway made it- not reasonably adaptable to any permitted residential use, applied for a permit to use the lot for a filling station on the ground that the applicable zoning constituted an unconstitutional taking. After a hearing at which a number of witnesses testified in a rather vague and general way, due somewhat to the almost continuous colloquies between Board members or between a Board member and a witness, current or past, the Board denied the application. No findings of fact ⁴⁷⁸ were made and no opinion was filed by the Board.

From the nature of the questions asked and the colloquies indulged in, it may be inferred that it was thought that the lot could be sold or utilized by the Hutsons for the erection of a dwelling, although the record does not foreclose the inference that the Board felt it had not been shown that the lot could not be used for some one of the sixteen uses other than a dwelling house permitted in a residential zone. The Hutsons went to the Circuit Court under the right of appeal given by Sec. 24.31 (1) of the Hagerstown Code. Judge Cobey said it was his opinion that the evidence before the Board clearly established that the only economic use for the property is a commercial use and that its continuance in a residential zoning classification would constitute a taking in the constitutional sense under Frankel v. City of Baltimore, 223 Md. 97 , and City of Baltimore v. Cohn, 204 Md. 523 , but it seems apparent, both from the evidence before the Board and the opinion as a whole, that the premise of the decision was the necessity of a choice between use for a dwelling or use for a filling station. We think it is a close question whether or not a dwelling can economically be put on the lot.

All of the witnesses said it could be done, with those testifying for the owners adding that it could not be done reasonably. The Chairman of the Board said that some of the neighboring houses on Nottingham Road were split levels. Mr. Hutson, a builder, replied that it was doubtful whether one could get “any reasonable figure out of it” if a house of this type were built on the lot, that generally in building on unusual topography one takes a loss, and that F. H. A. requirements could not be met. A land engineer testified that the lot was not “reasonably adaptable” for use as a residence site.

When the Chairman suggested that the maps in evidence showed that one could put a house thirty feet by thirty feet (or “a little bigger”) on the lot, with due