Costello v. Sieling

Horney, J., delivered the opinion of the Court. This appeal is from a decree which declared a rezoning resolution of the Board of County Commissioners of Howard County (the County Commissioners) null and void. Edward Costello and Dallas M. Grady (the proponents) and the County Commissioners seek a reversal of the decree. Henry J. W. Sieling (the protestant) is the sole appellee.

By a resolution adopted January 18, 1955, the County Commissioners amended the county zoning regulations so as to create two additional zoning districts designated as Tourist Accommodation Districts. A T-l district, among other uses, permits a use for “motels and tourist cabins and hotels.” A T-2 district, among other uses, permits a use for a “trailer coach park,” sometimes herein referred to as a “trailer park” or “park.” On March 17, 1959, a 92-acre tract located in the sixth election district of Howard County—the subject of this rezóning controversy—was reclassified by the County Commissioners from an “R” (Residential) district to a T-2 (Trailer Coach Park) district, upon the application of the proponents, who are the contract purchasers of the tract. The tract is surrounded by and adjacent to properties devoted to residential and agricultural uses and to the operation of ²⁷ sand and gravel pits. The agricultural uses, with one exception, are not extensive.

The exception is an 878-acre farm owned by the protestant. The principal improvements on this farm are located approximately a half-mile from the southern end of the rezoned tract. That portion of the farm located immediately opposite the proposed trailer park is wooded. An adjacent 4-acre parcel of land also owned by the protestant is improved by a warehouse used for commercial purposes.

Claiming that the trailer park would depreciate the value of his farm property, the protestant filed a bill of complaint in the Circuit Court for Howard County attacking the validity of the rezoning resolution as well as the constitutionality of the resolution which created the tourist accommodation districts. The case was submitted to the lower court on the record of the proceedings before the County Commissioners and on the exhibits offered and admitted as evidence in that court. The proponents propose to use the rezoned tract as a park for house trailers, designed to accommodate in excess of eight hundred housing units. They also propose to provide “roads, public sewers or a sewer established and maintained by [them] selves * * * [and] a water system, swimming pool, playgrounds, an auditorium and an administration building;” and also a fountain and a loggia for adornment.

The proponents also testified that they did not intend to permit any school-age children to permanently reside in the park. There was testimony to the effect that the existing trailer parks were inadequate to meet the needs of the community, but this was contradicted by the owners of two of the larger trailer park areas. There was also expert testimony to the effect that the establishment of the park, with one exception, would not adversely affect the surrounding properties and might be beneficial to some of them in many respects. The exception was an adjoining 260-acre tract which was being held by the corporate owners for future residential development.

The owner of the large adjoining farm, and other protestants in the area, who did not appeal to the circuit court, objected strenuously to the reclassification on the ²⁸ ground that it would have an adverse effect on their properties and the community. The Planning Commission of Howard County (the Planning Commission), though it had approved the establishment of similar parks in other parts of the county, recommended denial of the application for this trailer park because it would concentrate too many occupants-in a small area; because the park would create a demand for additional community facilities greater than that required for normal half-acre residential development; because the 800-plus trailers would create major water supply and sewage disposal problems; and because the tract was more desirable as sites for the half-acre-type of residential development for which it was originally zoned. The president of the Board of Education testified that if they did not “eliminate all children” of school age it would put a tremendous burden on county school facilities. The County Commissioners, in adopting the contested reclassification, noted that the trailer park was not improperly-located because the use—a “housing” one—was closely related to a residential use, and then stated, as reasons for-adopting the rezoning resolution, that the testimony produced, by the proponents, though disputed to some extent, indicated, a need for the reclassification; that the testimony, except as-to one property, indicated that adjacent properties would not. be adversely affected; that the buildings engineer could not. issue a permit until the application conformed to the requirements of the Planning Commission and the County Health Officer; and that the burden imposed on the county would be-no greater than that which might have been imposed by the-creation of a residential subdivision since the proponents, would be required to install and maintain at their own expense-the “water, sewerage and roads” in the trailer park.

The chancellor, in declaring the rezoning resolution invalid,, did so because he found that the T-2 classification was not analogous to a special exception (as in the Huff case, infra) and because he further found there was no substantial evidence before the County Commissioners of either a mistake-in the original zoning or a substantial change in the character of the neighborhood. ²⁹ The proponents make three claims: (i) the chancellor was in error in concluding that the reclassification could not be treated as analogous to a special exception and that rezoning could only be justified on the basis of a mistake or change; (ii) the chancellor was in error in concluding that there was no debatable evidence of either an original mistake or a substantial change; and (iii) the chancellor was in error in concluding that the protestant had standing to sue. With regard to the last point, it appears that the protestant may have had standing to sue. In any event, since the question was not raised by the pleadings, there is a presumption that the objection was waived, and, as it is not jurisdictional, we shall not consider it further. See Pressman v. Baltimore City, 222 Md. 330, 160 A. 2d 379 (1960).

As to the principal questions, we think the principles enunciated by Judge Hammond for this Court in Huff v. Board of Zoning Appeals, 214 Md. 48 , 133 A. 2d 83 (1957), are controlling here in that the granting of the trailer park classification was somewhat analogous to a special exception when applied to a former residential zone. Moreover, since the trailer park area is also residential in character, it appears that the reclassification is neither incompatible nor inconsistent with the remainder of the areas in the residential district. In these circumstances, the questions of mistake and change are not controlling. The chancellor did not decide the constitutionality of the resolution creating the tourist accommodation districts raised, below, and the question has not been directly raised here, nevertheless, the validity of the rezoning resolution, which is squarely before us, necessarily puts in issue the power of the County Commissioners to enact the amended regulations which added the newly created zoning districts.

The first question then, is whether the County Commissioners had authority to create new zoning classifications—such as the T-l and T-2 zones—within the framework of the original master or comprehensive zoning plan of Howard County so as to provide that certain properties in other former classifications might be reclassified or rezoned for tourist accommodation uses. That there was such authority there is not the slightest ³⁰ doubt. Chapter 19 of the Extraordinary Session of 1948 added five new sections (§§ 360 to 364, inclusive) to Article 14 (Howard County) to the Code P. L. L. (1930), under the sub-title “Zoning.” Section 361 specifically provides that the County Commissioners shall determine the manner in which the regulations, restrictions and district boundaries shall be established and enforced and “from time to time amended, supplemented and changed.” In recommending the adoption of tourist accommodation districts, the Planning Board recognized, among other things, that the location of trailer camps or parks in M-l and M-2 districts, to which they had been formerly relegated, was incompatible with the uses permitted in industrial districts