County Commissioners v. Merryman

Horney, J., delivered the opinion of the Court. This is an appeal from a decree which declared the rezoning resolution of the Board of County Commissioners of Howard County (the County Commissioners)—adopted March 10, 1959—null and void and enjoined the Cinder and Concrete Block Corporation (the Block Company or proponent) and others from putting the purported rezoning into effect and from using the “rezoned” property for any purpose not permitted on properties having a residential classification. The Block Company and the County Commissioners seek a reversal of the decree. The property, known as the “Kraft Farm” containing 92 ³¹⁷ acres of land, which the County Commissioners, against the recommendation of the Planning Commission of Howard County (Planning Commission), 1 reclassified from an “R” [Residential] district to an “M-l” [Light Manufacturing] district, is located in the first election district of the county on the easterly side of a 30-foot right of way, commonly known as Mullineaux Road.

This private road, which, as presently extended by another recently acquired wider right of way, runs from Montgomery Road to M'eadowridge Road, is also used by other owners of residential properties in the area. The northernmost 600 feet of the property—left as a buffer zone between the main tract and the residential area to the north —was not rezoned and retains its original residential classification. The 200-foot strip along the westernmost boundary of the whole tract—recently sold by the Block Company to the State Roads Commission (Roads Commission) for an extension of Dorsey Road [Route 176] if and when constructed —was also not rezoned. The plats in the record extract show that if the rezoning is permitted to stand, the effect would be to create an “island” for light manufacturing use in the middle of an otherwise extensive “sea” of residential uses.

The rezoned property, as well as the surrounding area, was classified as residential by the County Commissioners under the original zoning resolution adopted January 12, 1954, and ³¹⁸ until now has retained the same classification. However, on May 9, 1955, the Board of Zoning Appeals of Howard County, upon application for the privilege, granted a permit to operate a sand and gravel pit on the rezoned premises subject to certain definite limitations and restrictions, among which was one to the effect that the operation should be confined “to the hill containing sand and gravel” and that the hill should be cut only to the extent of the adjacent contours, to the end that the property would be “more suitable for residential development” in the future. Another restriction confined the pit traffic over Mullineaux Road to sixteen loads of sand and/or gravel a day and limited the number of trucks-to two. On April 7, 1958, upon a rezoning application similar to-the present one, the three man Board of County Commissioners—two of whom are no longer members—refused to-rezone because it found as a fact that there had been no substantial change in the character of the neighborhood since-the date [January 12, 1954] of the original rezoning.

But, on March 10, 1959, within less than a year after rezoning had been denied, the incumbent County Commissioners found evidence of “substantial change in the area” and granted the rezoning which is the subject of this controversy. The action, of the County Commissioners in both instances was appealed to the Circuit Court for Howard County. The refusal to rezone at the first hearing was appealed by the proponent and was affirmed by the circuit court, but there was no appeal' to this Court. The grant of rezoning at the second hearing, was appealed by the protestants and was reversed by the-circuit court, and, as stated, the proponent prosecuted this appeal.

Asserting damage in that their respective properties would be cheapened and depreciated in value if the rezoning were-allowed to stand, this proceeding was instituted by M. Pearce-Merryman and others (the protestants), alleging that the action of the County Commissioners was “unreasonable, arbitrary, unlawful and unconstitutional.” There was an abundance of evidence on behalf of the protestants to show that there had been no substantial change in; ³¹⁹ the character of the neighborhood since the original zoning other than a considerable increase in the development of the area for residential use. In addition to testimony that the rezoning would cause damage to the properties of the protestants, there was also evidence that use of the rezoned area for manufacturing purposes would increase traffic not only on the narrow Mullineaux Road but on the adjacent state roads as well. On the other hand there was evidence that there had been changes in the neighborhood in that an immense deposit of sand and gravel had been “discovered” on the rezoned premises, which was then being mined for such resources under the special limited and restricted permit issued in May of 1955. There was also evidence with respect to the proposed construction of a new highway.

In December of 1955 the Roads Commission entered into an agreement with the County Commissioners looking toward an extension of Route 176 or Dorsey Road in an effort to relieve some of the traffic congestion on Montgomery Road and other state highways in the general area. It was agreed that the extension would be a controlled access dual highway on a 200 foot right of way providing for access thereto at its intersection with Mullineaux Road for the convenience of the Block Company and other property owners abutting on the private road. At the first hearing the plans with respect to the construction of the proposed extension had been tentative both as to location and execution, but at the second hearing, in addition to evidence that the Roads Commission had purchased or agreed to purchase several tracts of land in the area, including a part of the Kraft Farm, there was testimony that the proposed route had been surveyed and staked out and that bids were anticipated by not later than the early part of 1960. It was not shown, however, that funds for the project had been allocated or would be forthcoming in the near future.

There was also evidence that rezoning from residential to light manufacturing would not further depreciate the value of surrounding residential properties or affect the public health, safety, morals and general welfare of the residents in the area. Furthermore, while the Planning Commission had recom ³²⁰ mended rejection of reclassification, its director testified that the commission had recently determined, as a result of a county-wide survey, that the county would need additional acreage for industrial use within the next 20 or 25 years, but the director did not indicate or even suggest that the rezoned area ought to be a part of the additional acreage needed for that purpose. However, two zoning experts, testifying on behalf of the proponent, were of the opinion that a part of the Kraft Farm was well suited for industrial development since it provided a logical and reasonable extension of the existing M-l zone along the Baltimore-Washington Boulevard about a mile away. The report of the Planning Commission, however, had recommended denial of rezoning because, among other reasons, there were “at present large areas of vacant land zoned M-l and M-2 adjacent to and south of” the boulevard.

It was on this testimony that the County Commissioners based their decision that there had been a substantial change and passed the resolution granting the rezoning. The chancellor, however, concluded that “the action of the Board [of County Commissioners] in doing, less than a year later, on scanty additional evidence, what they had on good grounds initially refused to do, falls below the point of being ‘fairly debatable’ to the level of being arbitrary.” On this appeal the Block Company contends that the chancellor was not justified in finding that the action of the County Commissioners was arbitrary because the question of whether there had been a change in the character of the neighborhood was fairly debatable. Apparently the chancellor was of the opinion that a change of mind in such a short period on such new evidence as was produced at the second hearing did not justify a reclassification. Or it may be that the chancellor thought that the decree affirming refusal of rezoning in the first instance was res judicata to the order granting the rezoning in the second instance.

Whatever may have been the basis for the decision of the chancellor, we think we must consider—since they cannot be wholly disregarded—the cumulative effect of such changes as there may have been between the date of the original zoning and the date of the second hear ³²¹ ing. Muhly v. County Council, 218 Md. 543 , 147 A. 2d 735 (1959). The real question therefore is not whether the complete about-face was warranted, but whether the aggregate changes in the character of the neighborhood between January 12, 1954, and March 10, 1959, were such as made the question of rezoning fairly debatable. No question as to res judicata was raised in this Court.

What, then, does the record disclose regarding changes? Other than the evidence with respect to the “discovery” of extraordinary deposits of sand and gravel, the proposed highway extension and the proposed industrial replanning—hereinafter separately discussed—the only evidence which had a legitimate bearing on the decision of the County Commissioners in this case was the effect, good or bad, of existing nonconforming-uses on the development of the area for residential purposes, and the effect of rezoning, good or bad, on the surrounding properties and