Elliott v. Joyce

Prescott, J., delivered the opinion of the Court. This is another zoning proceeding, which has pursued more or less of a “zigzag” course since its institution. Appellants, as the owners of a parcel of land in Baltimore County, applied to the Zoning Commissioner for a change of classification of said parcel from an R-6 Residential Zone to a B-L Commercial Zone and a special exception for a gasoline station, and said application was denied by the Commissioner. Petitioners appealed to the Board of Appeals, and that Board, in a two-to-one decision, reversed.

Thereupon, the appellee here entered an appeal to the Circuit Court, and the trial judge reversed the decision of the Board. The appeal to this Court followed. The question to be decided is whether the action taken by the Board was fairly debatable, or was it arbitrary and capricious in a legal sense, because it lacked substantial evidence to support it? The appellants rely principally upon a “change of neighborhood” to support the action of the majority of the Board.

The appellee filed no brief, and, from the record extract and the ex ⁷⁹ hibits contained therein, it is difficult to state, with accuracy, the exact zoning of some of the surrounding and neighboring properties. It seems that the subject property (103 by 155 feet) is surrounded, or almost surrounded, by residentially zoned properties. It is located on the southeast corner of the intersection of Dogwood Road and Clarke Avenue, and is improved by a small dwelling. Dogwood Road, running generally in an east-west direction, is a rather narrow two-lane highway, without sidewalks.

Immediately to the east of the subject property and within some seven feet from its boundary line is the residence of one of the protestants. Apparently, the property further to the east along Dogwood is residential for some 2,000 feet, and then some commercial uses begin. Diagonally across Dogwood, there is a small nursery school and a small apartment house containing three apartments, but the property immediately north of the subject property and across Dogwood is residential. The contiguous property to the south is residential for about 150 feet, where it joins the Security Senior High School site.

The bulk of this site is in a southeasterly direction from appellants’ property. Its area is substantial (estimated to be some thirty acres), and it extends southeasterly on Clarke Avenue (described below) to a distance of some 1,800 to 1,900 feet from the intersection. Further to the southeast, some 2,500 feet from the subject property, and across Security Boulevard, 120 feet wide, is the Meadows Industrial Park, on which is located the Social Security site. We return to the intersection of Dogwood and Clarke.

Clarke Avenue is a fairly new street, and when it was constructed, appellants sold the county three to five feet of their land for its construction. It intersects Dogwood at a 90-degree angle. At the intersection, Clarke runs in a generally north-south direction, but, at a point about 500 feet south thereof, it curves in a southeasterly direction so that some of the property directly south of appellants’ is across Clarke Avenue from it. Shortly to the south of the subject property runs a fair-sized stream called Dead Run.

Further south at a point some 600 feet from the intersection and across Clarke Avenue is a gasoline filling station. Still further south, some 1,500 feet from the ⁸⁰ intersection, is the proposed site of a shopping center. The property immediately to the west and across Clarke Avenue is zoned residential, but, beginning about 1,400 feet west of the intersection, there are some commercial uses. Appellants made an attempt to show a “need” in the community for the filling station, but no great weight can be afforded this testimony, for the evidence discloses at least four such stations within a radius of about one-half of a mile.

We have set forth, on innumerable occasions, the function of the Court of Appeals when determining questions of re-classifications in zoning. The Court will not zone nor rezone, nor will it substitute