Ford v. Baltimore County

Barnes, J., delivered the opinion of the Court. In this appeal from the Circuit Court for Baltimore County, in equity (Menchine, J.), two questions are presented to us: (1) is Council Bill No. 30 of the 1971 legislative session of the County Council of Baltimore County adopting new zoning regulations and new comprehensive zoning maps unreasonable, illegal, arbitrary and unconstitutional as applied to the property of the appellants, Eugene F. Ford, et al., trading as the Pot Spring Joint Venture and (2) were the appellants denied a full, fair and impartial hearing in regard to a proposed reclassification of their property? The appellants, plaintiffs below, filed a bill of complaint on May 7, 1971, against Baltimore County, the appellee in this Court, praying, inter alia, for a declaratory decree that Bill 30 was invalid and unconstitutional as applied to the subject property and that the property retain its prior zoning status. After the County answered, substantial testimony was taken and a number of documents, maps, plats, etc. were introduced into evidence.

The chancellor on February 9, 1972, filed a written opinion indi ¹⁷⁴ eating that Bill 30 was valid as applied to the subject property and on February 22,1972, passed an order denying the relief prayed for by the plaintiffs, who filed a timely appeal from that order to this Court. The subject property consists of 32.603 acres of land located at the southwest corner of Pot Spring and Cinder Roads in the Eighth Election District of Baltimore County. The original comprehensive zoning map for this area was adopted on December 20, 1955. It was the result of that comprehensive zoning plan that 11.323 acres of the subject property were zoned R-20 (single family houses on 20,000 square feet lots) ; 1.225 acres were zoned R-40 (single family houses on 40,000 square feet lots) and 20.125 acres were zoned B.L.

(Business Local) . When this original comprehensive zoning was adopted in 1955, the surrounding area was relatively undeveloped. It was, however, located in an area which was on the brink of an intensive development which had been spreading northward from the Towson area for several years prior to 1955. The entire neighborhood in which the subject property is located was zoned for single family houses, ranging from the R-10 zone (one-quarter acre lots) to the R-40 zone (one acre lots) with the exception of two tracts—one, the subject property; the other, a four acre tract approximately one-half mile south of the subject property on the west side of Pot Spring Road which was zoned B.L. The uncontradicted evidence produced by the property owners in the trial court indicates that the neighborhood had developed in accordance with the comprehensive plan adopted in 1955.

A school had been constructed on land abutting the subject property on the southwest; the four acre commercial tract had been improved in accordance with its B.L. classification; and, other properties in the general area had been developed with substantial and expensive residences. Indeed, virtually all of the land in the area had been developed in accordance with the 1955 comprehensive plan except the subject property. ¹⁷⁵ The testimony further indicated that the subject property had certain topographical and other conditions having a direct bearing on its development. These same conditions existed or were known in 1955 and they exist today. One of the most important of these conditions is the fact that the subject property is traversed by two streams (and attendant flood plains) which carry water from open end outlets from the County storm drainage systems in neighboring developments.

These outlets involve storm drainage pipes 36 and 66 inches in diameter, respectively. The water from these two pipes crosses the subject property and leaves it by passing through two undersized culverts under Pot Spring Road. During heavy rainfall, the subject property is flooded because of the inadequate culverts. Since the adoption of the comprehensive plan in 1955, Pot Spring Road has been widened and improved southerly from the subject property and northerly from Cinder Road, but the portion of that road contiguous to the subject property has not been improved.

Any development of the subject property will require the widening and repaving of this section of Pot Spring Road with the construction of new and larger culverts, to the cost of which, the developer must contribute. The testimony established that although the procedural requirements for the adoption of the 1955 comprehensive plan and those for the adoption of the 1971 comprehensive plan were generally similar, there were several substantial differences. Both the 1955 and 1971 comprehensive plans were initiated by the County Planning Board, which it had adopted after conducting public hearings in regard to the respective plans. In 1955, the recommendations of the Planning Board in the form of a map were submitted to the Zoning Commissioner.

The Zoning Commissioner then conducted hearings, made whatever changes he thought to be appropriate, and thereafter submitted the map, as amended, as a final recommendation to the Board of County Commissioners. The County ¹⁷⁶ Commissioners also conducted a public hearing on the recommended map and then made any changes the County Commissioners deemed appropriate as a result of that hearing. In 1971, however, as a result of intervening changes in the local law, the recommendations of the Planning Board in the form of a map were submitted directly to the County Council, the Zoning Commissioner’s former function having been eliminated. However, before the County Council could make any changes or alterations in the recommendations of the Planning Board, it was required that the County Council have additional public hearings at which issues were restricted solely to those properties in regard to which the County Council proposed or recommended zoning which was different from the zoning recommended by the Planning Board.

The County was divided into five sectors and the public hearings by the County Council were held on each sector individually. The subject property was designated as being in the Central Sector, so that in the present case, we are only concerned with the councilmanic hearings for that sector. We reviewed in detail the applicable statutory provisions in Baltimore County in regard to the required procedure for adoption of the proposed comprehensive zoning and zoning maps in 1971 in Nottingham Village, Inc. v. Baltimore County, 266 Md. 339 , 292 A. 2d 680 (1972), and need not repeat that review here. We sustained in Nottingham Village the provision in the Baltimore County Code (1968, as amended) in which subsection (b) had been added by Council Bill No. 103, possibly as a result of our decision in Swarthmore Co. v. Kaestner, 258 Md. 517 , 266 A. 2d 341 (1970).

Subsection (b) provided: “(b) Any change or amendment to be made in a zoning map as proposed by the planning board shall, before final adoption of such map, be brought to further public hearing, advertised and held in the same manner as provided above in subsection (a). If further changes or amend- ¹⁷⁷ merits to such map shall then be proposed in the county council, a final public hearing, limited to such further changes or amendments, shall be advertised and held in the same manner as provided above before final action on such map is taken by the county council.” It will be noted that the provisions of subsection (b) are mandatory. In Nottingham Village, we also sustained, as not inconsistent with Art. Ill, § 303 of the County Charter requiring the County Council to act as a body and forbidding the creation of standing committees or delegation of council functions and duties to a smaller number of its members than the whole, the agreed upon practice of the County Council in giving the councilman in the councilmanic district involved the primary responsibility for “closing” the issues, i.e., the identification of the Planning Board’s recommendations which should be adopted. Judge Singley, for the Court, stated on this point: “What happened was essentially this.

While the Council toured each of the five sectors by bus, it was decided that each councilman would be primarily responsible for zoning in his councilmanic district. After the first Council hearing, it became the councilman’s duty to recommend to the Council which issues should be ‘closed,’ in other words to identify those instances in his district where the Planning Board’s recommendation should be adopted, thus making unnecessary a second public hearing. It would seem that the Council members interacted as a group, but without formal vote, in the construction of the ‘log,’ or list of issues recommended for consideration for the second hearing. By this procedure the number of issues was reduced from some 700 to about 200.

On ¹⁷⁸ 24 March 1971, the Council acted as a body in closing issues. “As a practical matter, what was really done was to assign to each councilman responsibility for the ascertainment of facts in support of a recommendation which would form a basis for Council action. We find nothing in Art. Ill, § 303 of the Charter or in Title 22, § 22-21 which proscribes this. The Council acted as a body in adopting Zoning Maps.” 266 Md. at 349-50 , 292 A. 2d at 685 . The appellants had also challenged in their bill of complaint the general validity of the adoption of the 1971 comprehensive zoning plan; but they abandoned this contention after the decision in Nottingham Village.

We now turn to the hearings held in regard to the Central Sector, which, as we have observed, included the subject property. The first hearing by the County Council in regard to the Central Sector was held on January 11, 1971. At that time, the Planning Board recommended to the Council that most of the B.L. zoning of the subject property be continued, but with certain minor adjustments to be made on the boundaries of that zoning in order to form larger buffer strips or setbacks for the protection of the properties in the neighborhood which had developed residentially in accordance with the 1955 comprehensive zoning and map. On January 4, 1971, the then counsel for the appellants wrote a letter to the County Council, protesting against the adjustments recommended by the Planning Board, indicating that they were illegal and confiscatory and were “for the apparent purpose of accommodating the neighbors.” This letter was submitted to the County Council prior to the hearing on January 11.

At that hearing two owners of residential properties in the general neighborhood testified. The testimony of one of the witnesses was principally in regard to the already developed four acre commercial site located ap ¹⁷⁹ proximately one-half mile from the subject property and to the distances of other shopping facilities in the general vicinity. His testimony,, however, concluded with the request that all of the subject property be zoned for residential uses. The other witness spoke upon a number of issues but also recommended the “down shift” of the subject property to residential uses.

After the hearing of January 11, 1971, the subject property was designated as an “open issue” for the hearing of the County Council scheduled for March 10, 1971. This designation resulted from a recommendation by Councilman G. Walter Tyrie, Jr.—the councilman in whose councilmanic district the subject property is located—that the subject property be zoned in its entirety to the D.R.-2 zone. The D.R.-2 zone provides for a density residential use in which two dwelling units per acre are permitted. A limited number of compatible commercial uses are permitted if a special exception is obtained, such as antique stores, restaurants, kennels, riding stables, shooting ranges, and the like.

A shopping center is not permitted. The March 10, 1971, hearing at the Dulaney Senior High School convened at 7:00 p.m. and lasted until 3:00 a.m., the following morning. So many people attended the meeting that many persons could not get into the building and others could only get into the lobby. The aisles were blocked by people standing, lying and sitting in the aisleways so that it was next to impossible to get to the speakers’ rostrum, nor could the speakers who managed to reach the rostrum be heard or make an intelligible talk because of the booing, hooting, catcalling and other shouting.

Indeed, Councilman Tyrie was hanged in effigy from the balcony of the building while other people paraded in front of the building, displaying simulated tombstones (Councilman Tyrie sells gravestones), coffins and banners containing derogatory remarks about him. Councilman Tyrie in his testimony admitted that his safety and that of his children had been threatened, ¹⁸⁰ necessitating a request by him to the police for protection after the March 10 hearing and prior to the County Council’s action on March 24, 1971, approving his recommendation that the subject property zoning be made entirely D.R.-2. An alternative method of communicating with the County Council was provided at the March 10 hearing, i.e., to complete a form provided for that purpose and submit it to representatives of the Council or of the Planning Staff who were seated at locations throughout the lobby of the school. Such a comment sheet was completed by counsel for the appellants but Councilman Tyrie testified that he had not seen it.

It was stored along with thousands of other written requests in cardboard cartons in the County Office of Planning and Zoning. One of the witnesses who had appeared at the January 11 hearing also appeared at the March 10 hearing. He spoke briefly, principally expressing his gratitude to Councilman Tyrie for his recommendation that the subject property be rezoned to D.R.-2. Frederick P. Klaus, a real estate expert who later testified for the appellants, attended the March 10 meeting, in addition to counsel on behalf of the appellants.

He arrived at approximately 6:50 p.m., found it impossible to reach the Speakers’ Rostrum, and finally left at about 11:00 p.m. Counsel left about the same time. We will give the details of Mr. Klaus’ testimony in regard to the March 10 meeting later in this opinion. After the 1955 comprehensive plan was adopted, there were at least two changes in the ownership of the subject property.

In 1966, two well-known builders and developers, James Keelty and James Dorment, controlled the ownership of the property. The appellants purchased it from them in 1966 for $400,000. The existing B.L. zoning was an important factor in reaching this purchase price. After the purchase of the property, development of the tract was delayed by several factors, one being the suicide of one of the three original partners, with a resulting delay in clearing up the affairs of the ¹⁸¹ partnership and the acquisition of the interest of the deceased partner by the surviving partners.

Between the time of acquisition of title to the subject property and June, 1970, the appellants began to process the development plans for the property. At the suggestion of George E. Gavrelis, then County Director of Planning, the appellants did not proceed with their development plans but instead submitted a petition to reclassify the property to the R-A (Apartments) zone. Substantial neighborhood opposition developed to the granting of this petition and it was withdrawn. As a result of engineering studies which were begun in 1967, a preliminary plan for the development of the subject property was filed with the County on December 7, 1970.

The Joint Subdivision Planning Committee of the County, on December 17, 1970, issued its comments and the appellants were advised that there would be a meeting within 10 days between the County’s Director of Public Works, Bureau of Traffic Engineering and the Director of Planning to decide whether the appellants would be required to extend Medbury and Northleigh Roads or whether these public roads would be terminated at the boundaries of the subject property. This meeting, however, was never held. The engineer for the appellants on March 3, 1971, submitted a Public Works Agreement to the County for the development of the subject property in accordance with the existing zoning. In the meantime, there was a meeting between representatives of the appellants and the Director of Planning which resulted in revisions in the development plan incorporating in it the setbacks desired by the Department of Planning and by the Planning Board so that the plan was brought into compliance with the recommendations of the Planning Board submitted by it to the County Council in connection with the proposed new comprehensive zoning plan.

Then, on March 8, 1971, the appellants filed an application for a building permit with the County, paying a building permit fee of $430 on the following ¹⁸² day, March 9. At the same time inquiry was made to the Director of Planning in regard to why the preliminary development plan had not been approved by him and the Director of Planning indicated that he would sign it if it were resubmitted to him. When this was done, however, the Director of Planning refused to sign an approval because, he testified, he had been instructed by the County Council, through its Chairman, that no development plans where there was a possible conflict with a resolution of the zoning issue, should be approved until “such time as the Council had resolved the zoning issue.” The County Council had knowledge of the building permit application and had instructed the Director of Planning not to approve the application. The appellants finally did receive comments from the Bureau of Public Services shortly after Mareh 16, 1971; but these comments related to the plat which was submitted and was the subject matter of the comments of December 17, 1970, and did not relate to the revised preliminary plan submitted on January 22, 1971.

The County Council on March 24, 1971, adopted a new comprehensive zoning plan which eliminated the B.L. zoning on the subject property and placed it in a D.R.-2 zone. At the time of the adoption of this new zoning for the subject property, the testimony introduced on behalf of the appellants indicated that they had either expended or obligated themselves to spend some $675,000 in connection with the acquisition and development of the subject property. The chancellor found that the total cost to the appellants of the subject property at the end of 1971 was $613,447, which we will accept as the correct figure for the purposes of this opinion. John Hocheder, Jr., a well-qualified land development engineer, testified for the appellants that the development costs of the subject property would not be substantially different if it were developed under the B.L. zoning or under the new D.R.-2 zoning.

He testified that although the D.R.-2 zone would theoretically permit 65 or 66 lots for individual cottages, ¹⁸³ the physical characteristics of the subject property would prevent a yield of more than 45 lots on the entire 32.603 acres in the tract. He further testified that it would be possible to develop the tract by erecting 65 apartment units under the cluster form of