Dundalk Holding Co. v. Horn

Barnes, J., delivered the opinion of the Court. The two questions presented to us in this zoning appeal are whether the Circuit Court for Baltimore County (Turnbull, J.) erred in passing its order of November ²⁸² 17, 1971, reversing the decision of the County Board of Appeals of Baltimore County (County Board) for alleged lack of any substantial evidence to support its decision of April. 23, 1971, to grant the appellant, Dundalk Holding Company, Inc. (Dundalk), (a) a special exception for a theatre on its land in a B.L. (Business Local) zone and (b) a special permit for off-street parking on its adjoining land in a D.R. 5.5 (Residential) zone. We have concluded that there was sufficient evidence to support the County Board’s decision and we will reverse the order of the lower court.

The subject property is located in the Third Election District of Baltimore County on the west side of Reisterstown Road approximately 100 feet south of Sudbrook Lane in the Pikesville business area and is known as 1110 Reisterstown Road. The portion of the subject property in the B.L. zone is rectangular in shape and has a frontage on the west side of Reisterstown Road of 64.33 feet with a depth of 142 feet, and contains .21 acre of land. Immediately adjoining that portion of the property to the west is an “L” shaped part of the land containing .376 acre zoned D.R. 5.5 for which the special permit for off-street parking was requested. The portion of the subject property fronting on Reisterstown Road is improved by a one-story masonry store building which Dundalk proposes to convert into a 300 seat mini-theatre operation, using the D.R. 5.5 parcel as a parking lot.

The mini-type theatre operation will have a single entrance but will have two theatres of 150 seats each for the exhibition of motion pictures. The land to the west of the subject property is improved with commercial structures— stores and offices. To the east, the land is improved with a library and with an automobile service station. In front of the subject property, Reisterstown Road is 40 feet wide.

The plat for the proposed improvement was approved by George E. Gavrelis, Director of the Office of Planning and Zoning of Baltimore County. The Deputy Zoning Commissioner of Baltimore County on December 8, 1970, granted the requested special exception and ²⁸³ granted a special hearing for the requested parking permit. The appellees, Robert Horn and Julia Horn, his wife, Whittier Realty Corporation, Pikesville Pharmacy, Inc., Sterling Amusement Corporation and J. F. Theatres, Inc., being landowners in the immediate area, appealed the decision of the Deputy Zoning Commissioner to the County Board, which, after a hearing, granted the special exception and special parking permit on April 23, 1971. Thereafter, the appellees perfected an appeal to the lower court, which, as we have stated, on November 17, 1971, reversed the order of the County Board.

Dundalk perfected a timely appeal to this Court from the order of November 17. There is no dispute between the parties in regard to the applicable law. If the action by the County Board was supported by any substantial evidence, then the matter before it was “fairly debatable” and the lower court should not substitute its judgment for that of the administrative body; on the other hand, if the action of the County Board was not supported by any substantial evidence, then its action was arbitrary and capricious and a denial of due process of law as prohibited by Art. 23 of the Declaration of Rights of the Maryland Constitution and should have been reversed by the lower court for this reason. As we stated in Prince George’s County v. Meininger, 264 Md. 148, 152 , 285 A. 2d 649, 651 (1972) : “For the lower court to have been correct in its holding it would have had to have found, and the record would have had to have shown, ‘that the action of the District Council was unsupported by competent, material and substantial evidence and therefore, was arbitrary and capricious.’ ” The determination of the present appeal, therefore, turns upon a consideration of the facts presented to the County Board.

As we have indicated, we are of the opin ²⁸⁴ ion that there was sufficient substantial evidence presented before that Board to make its decision fairly debatable. (1) By Section 502.1 of the Baltimore County Zoning Ordinance, it is provided that for the County Board to grant a special exception it must be shown that the proposed use will not: “a. Be detrimental to the health, safety, or general welfare of the locality involved; “b. Tend to create congestion in roads, streets or alleys therein; “c.

Create a potential hazard from fire, panic or other dangers; “d. Tend to overcrowd land and cause undue concentration of population; “e. Interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences, or improvements; “f. Interfere with adequate light and air.” Dundalk produced as its first witness before the County Board its Vice-President, Howard A. Wagonheim, who had resided in Pikesville for some 12 years, approximately one mile from the subject property.

He was familiar with “the entire Pikesville area community and the whole commercial strip along Reisterstown Road.” He buys all the films for Dundalk and other motion picture corporations and has managed, supervised and operated those corporations for almost 24 years. The other motion picture corporations include: “. . . the Homewood Amusement Company, which operates the Playhouse at 25th and Charles; the Five West Amusement Company, which operates the Seven East and the Five West at North and Charles.; the Paramount Amusement Company, which operates the Para ²⁸⁵ mount Theatre at 6650 Belair Road; and similar corporations of Maryland which operate Cinema 1 and Cinema 2 in the Yorkridge Shopping Center in Lutherville and Timonium.” After describing the subject property, its improvements and the surrounding commercial area, Mr. Wagonheim stated why he had selected the subject property for the proposed theatre operation, as follows: “Several reasons: the building is available, it is on commercial property, with a parking lot which more than meets the minimum zoning requirements for what I propose to do at this site, and for which we have been granted permission to do by the Deputy Zoning Commissioner. “The minimum requirements for parking are 1 space for every 6 seats. I intend to construct what is called a mini-theatre, with a total of 300 seats. There will be 2 auditoriums of 150 seats each, which is a very small theatre.

We have 60 parking spaces, which is actually 1 parking space for every 5 seats.” * * * “A. It more than meets the [minimum] county requirements. The minimum requirements are 1 space for every 6 seats, which in fact would mean that at this location, with the number of parking spaces that we have, we could actually put in 360 seats, or a total of 360 seats, or 180 seats in each auditorium. “I have done research on population within a 2-mile radius of this site, with the use of census tracts. Coupled with the census-tract population figures that I have, which indicate that within a 2-mile radius of this site the population has grown from 39,730 as of January 1, 1960, to 65,479 persons as of January 1, 1970. ²⁸⁶ “Pikesville has only one existing theatre, which, over the last 193 weeks, which is 3 years and 37 weeks, has had 47 programs, which is an average of one program every 4.11 weeks, and it is my feeling, with my background, in developing other theatres in areas which are very much similar to Pikesville, Pikesville residents deserve and should have another theatre.” In regard to the proposed hours of operation, Mr. Wagonheim stated: “The very earliest we would operate our box office would be at one-thirty in the afternoon, and with these miniature auditoriums I would operate this on a staggering schedule basis, which means that on one side we would program our features at one-thirty, three-thirty, five-thirty, seven-thirty, and nine-thirty, and on the other side at two, four, six, eight, ten, so that the last feature would go on at ten o’clock at night.” He further stated that he was aware that there was existing in the Pikesville area “a void of sufficient parking spaces for many of the merchants” and that when the proposed parking spaces were not used for the proposed theatre operation, he would allow them to use the spaces. In regard to the likely hours for most patrons to use the proposed theatre, Mr. Wagonheim testified that from his experience in the operation of other theatres, they would be as follows: “Predominantly the usage of this theatre will be after seven o’clock, from Monday through Saturday, and all day Sundays.

I have research patterns at Cinema 1 and Cinema 2, which is a twin operation. “* * * [These are located at] Yorkridge Shopping Center in Lutherville. The Paramount, ²⁸⁷ which is operated in the 6600 Block of Belair Road, I went through the year of 1969 on an admission basis, day by day, and the average, well I will give it to you exactly: In 1969, Cinema 1 had a total attendance of 71,983 people. Of that 71,983 people, 57,765 purchased tickets after seven o’clock, from Monday through Saturdays and all day on Sundays, which was actually figures to figure up 80.24%, that is average. “I did the same thing with Cinema 2. Our total attendance at Cinema 2 was 113,490 people.

Of that 113,490 people, 97,465 purchased tickets after seven, from Monday through Saturday nights and all day Sundays, which was 85.88% of our total attendance. “Í wanted to check still further and corroborate these findings, so I went to the Paramount Theatre for the year 1969. The Paramount total attendance was 48,993. Of the 48,-993, — 36,950 tickets were sold after 7:00 p.m. from Monday through Saturday nights and all day Sunday, which was 75.42% of our total attendance. “There is no doubt that in a suburban area, such as exists in Pikesville, that the same pattern would prevail. I could even take figures further, take it back to six o’clock, and show that the percentages from six o’clock from Monday through Saturday nights and all day Sundays, are even higher.” Mr. Wagonheim testified further that he was familiar with the Baltimore County Zoning Regulations and specifically Section 502.1 and was examined and testified as follows: “Q. As a result of your experience as a motion-picture exhibitor, and in the varied neighborhoods and suburban shopping centers, do ²⁸⁸ you feel that the granting of a special exception to locate a motion picture theatre on the subject site would be detrimental to the health, safety, and welfare of the locality?

A. Absolutely not.” * * * “Q. From your experience, it will not be detrimental to the general welfare? A. From my experience, yes it will not. “Q. Will it tend to create congestion in the roads, streets, and alleys? A. No. ‘‘Q. Have you hired an expert to analyze the traffic situation in the area? A. Yes, I have. “Q. Will it tend to create a potential hazard from fire, panic, or other dangers ?

A. From my experience, no. “Q. Will it tend to overcrowd land and cause undue concentration of population? A. No. “Q. Of course, I think you know that the property is presently zoned B-L, and any number of commercial uses can be placed on the subject property, is that correct? A. That is right. “Q. Will this interfere with adequate provisions for schools, parks, water, sewerage, transportation, or other public requirements, conveniences, or improvements? A. No. “Q. Will it interfere with adequate light and air?

A. It will not. “Q.