CTY. COMM'RS OF CECIL CTY. v. Phillips

McWilliams, J., delivered the opinion of the Court. The Elk Paper Manufacturing Company (the Company) was established in 1843. For the succeeding 123 years it made paper on a 27 acre tract which straddles Little Elk Creek and lies within the quadrangle formed by the villages of Childs, Leeds, Cherry Hill and Singerly. The area is about three miles north of Elkton.

Captain John Smith first explored the rivers of Cecil County in 1608; 354 years later, on 30 June 1962, the county’s first comprehensive zoning ordinance was enacted. Prior thereto, according to the Planning Commission’s Master Development Plan, the land within the quadrangle and for miles around, except, of course, the Company’s 27 acres, was devoted entirely to agricultural and low density residential uses. The Company’s 27 acre tract was placed in the M-2 (heavy industrial) classification. Abutting the Company’s land to the north was the 88 acre Jarvineen tract; abutting to the south was the 134 acre Blevins tract.

A 20 acre portion of the Jarvineen tract adjoining the Company’s land was also placed in the M-2 classification as was a 30 acre portion of the Blevins land. Thus there ²³¹ was created by the county’s first comprehensive zoning ordinance a 77 acre parcel of M-2 land, the central 27 acres of which belonged to the Company. About one-half mile to the southeast an 80 acre tract was placed in the M-l (light industrial) classification. As the trial judge, Mackey, J., put it, “otherwise all of the area for several miles in every direction * * * [was] zoned Residential with the exception of one small area zoned Forest and Recreational.

The area immediately adjacent to the paper plant on all sides * * * [was] zoned for the lowest density of residences (R-l).” In 1966 the Company bought the Jarvineen tract. In March 1968 it bought the Blevins tract and in April 1968 it filed applications with the County Commissioners for the reclassification to M-2 of nearly all of those portions of both tracts still remaining in the R-l classification. The reason given for the requested change was the “need for normal expansion of paperboard mill — storage of wood, storage ponds and other uses — original zoning mistaken and character of neighborhood changed.” At the hearing before the Commissioners on 23 April 1968 counsel said that to “keep pace” with developing techniques in the industry the Company found it necessary to abandon waste paper as a raw material and resort to the use of wood pulp. The new process was discussed in detail by counsel, officials of the Company and the Commissioners.

A representative of the “Anti-Pollution League” was present. He said he was not against the granting of the application; he just did not “want any problems with pollution.” There follows a portion of the statement made by counsel: “That doesn’t give any odor, and the — what we wanted when this was originally zoned, there wasn’t, 7 think, I think there was a mistake in that. The mill had no room to expand. The pulp thing is on the north side of Childs Road.

We want the wood, a good deal of it, to be in that area. We have asked to have rezoned that part in blue, well it is the green there. We have left ²³² one hundred feet buffer there. The use will be storage of wood and occasionally some spraying.

We expect to move spraying on south onto the Blevins property. That is the thing in a nutshell, to the extent we are enlarging. It is a change in the character of the neighborhood. There is an M-l on the lower right-hand side on the Vlamis property.

You have the Kennedy Highway. That has changed the character of things.” (Emphasis added.) Nowhere in the record will there be found any other or further mention of either mistake or change. Immediately following the hearing the commissioners unanimously approved “both applications as requested as there was a mistake in the original zoning inasmuch as insufficient land was reserved for plant expansion.” It was noted that “no one appeared to protest.” On 22 May the appellees filed their bill of complaint in the Circuit Court for Cecil County citing the failure of the zoning ordinance to provide for an appeal, alleging that the action of the commissioners was “illegal, arbitrary, discriminatory and capricious” and seeking injunctive relief. The case came on for trial before Judge Mackey on 10 September.

All of the appellees gave testimony; the Company offered none. The testimony of the appellees was devoted almost exclusively to the offensive odors emitted by the Company’s “cooker” and the alleged diminution in the value of their respective properties. The Company challenged the standing of the appellees to maintain the action on the grounds that none of them had been present at the hearing before the County Commissioners and since none of them had shown any damage special to himself, none of them could be classed as an aggrieved person. Judge Mackey concluded that they were aggrieved persons, that their failure to appear at the hearing did not matter and that they had sufficient standing to maintain the action.

Since his decision in that regard has not been challenged in this Court, it is un ²³³ necessary for us to give it further consideration. He concluded also that the commissioners did not have before them any evidence sufficient to make the questions of mistake or change fairly debatable; with this conclusion we agree. We have said many times that our function is not “to zone or rezone but only to determine whether the legislative body has properly applied the law to the facts.” But we have said also that “when there is no basis for reasonable debate or there are no supporting facts in the record,” we ought to “declare the legislative action to be arbitrary, capricious, discriminatory or illegal.” Mayor and City Council v. NAACP, 221 Md. 329, 334 (1960). In respect of piecemeal zoning, we said in Wells v. Pierpont, 253 Md. 554, 557 (1969) : “It is now firmly established that there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom there must be produced strong evidence of mistake in the original zoning or comprehensive rezoning or else evidence of substantial change in the character of the neighborhood.

Minor v. Shifflett, 252 Md. 158 (1969), and the cases therein cited; Randolph Hills, Inc. v. Whitley, 249 Md. 78 (1968); Woodlawn Area Citizens Ass’n v. Board, 241 Md. 187 (1966). And, of course, the burden of proof facing one seeking a zoning reclassification is quite onerous. Agneslane, Inc. v. Lucas, 247 Md. 612, 618 (1967), and the cases therein cited.” The Company and the commissioners argue that: “It is certainly not unreasonable to conclude that in the original classification of the M-2 Zone around a 126 year old mill that required a good water supply, the planners should allow for a reasonable area of expansion in accor ²³⁴ dance with changes that might occur in operations, either by way of normal growth, changed production techniques, or more intense usage, and that in fact as a matter of hindsight, they have misjudged the situation.” (Emphasis added.) Whatever merit this argument might have in other contexts, it fails of persuasion here. It will be recalled that the commissioners placed more than the Company’s 27 acres in the M-2 classification when the comprehensive zoning ordinance was adopted in 1962.

They included 20 acres belonging to Jarvineen and 30 acres belonging to Blevins. Obviously the extra 50 acres was almost double the 27 acres that had sufficed the Company for more than a century. Even counsel for the Company conceded that the additional 50 acres was “by way of anticipation perhaps” of possible future expansion. What we are urged to say here is that the commissioners’ failure to allow eight times as much area for expansion was enough of a mistake to satisfy the requirements of the change-mistake rule.

The Company argues that its interpretation of the mistake-change rule is supported by our decisions in Pressman v. Mayor and City Council, 222 Md. 330 (1960), Rohde v. County Board of Appeals, 234 Md. 259 (1964), and Jobar Corp. v. Rodgers Forge Community Ass’n, Inc., 236 Md. 106 (1964). In Pressman , a 1931 comprehensive zoning ordinance provided for commercial strip zoning along Reisterstown Road limiting the depth of commercial establishments to 150 feet. About 27 years later rezoning from residential use was sought for the Reisterstown Plaza shopping center. A depth greater than 150 feet was needed for the stores and surrounding parking area.

We agreed that the failure of the zoning ordinance to anticipate the need for or trend toward shopping centers “* * * should be regarded as an error in original zoning or the result of changed conditions.” Id. at 339 . We noted that “strip zoning” according to the experts “* * * is no longer considered good zoning. ²³⁵ The actual development [we said] in the neighborhood of the subject properties, as shown in this case, seems to confirm expert views. As a matter of history, zoning has preceded planning in Baltimore, and no land use master plan for the city has been promulgated.” Id. at 337 . The difference between Pressman and the instant case is readily apparent.

Here the 1962 ordinance provided for reasonably foreseeable industrial growth. The 1931 ordinance in Pressman had not anticipated any trend toward more space for commercial establishments. Here planning preceded zoning; it was the other way around in Pressman . The same distinction can be made in Rohde .

There the reclassification from R-6 (residence-one or two family) to R-A (apartments) of a 37 acre tract with a special exception allowing two high rise buildings was sought. The application was granted and we affirmed. Chief Judge Bruñe, for the Court, noted the difficulty of characterizing the evidence as showing either a mistake in the original zoning or a change in the character of the neighborhood, “or both.” He pointed out that: “* * * either as a result of lack of anticipation of trends of development in 1955 or as a result of changes in trend which have occurred since then, whether anticipated or not, the existing zoning was in error at the time of the hearing. The trend has been towards apartments and, particularly in areas close to the City