France v. Shapiro

Singley, J., delivered the opinion of the Court. This case comes to us on appeal from an order of the Circuit Court for Baltimore County entered 19 January 1967, affirming an order of the County Board of Appeals of Baltimore County dated 24 June 1966, granting the petition of Israel D. Shapiro and Joseph W. Shapiro, appellees herein, for the rezoning of 27.065 acres of land on the north side of Old Court Road in the Third Election District of Baltimore County. The opinion of the County Board of Appeals suggested that the opening paragraph of the opinion filed for this Court by Judge McWilliams in Beth Tfiloh Congregation of Baltimore City v. Blum, 242 Md. 84 , 218 A. 2d 29 (1966) could well have been incorporated in the opinion of the Board. This paragraph reads in part as follows: “Unless forewarned, no Maryland lawyer whose practice embraces zoning matters would be able to read this opinion and the briefs without experiencing a feeling of deja vu.

Eventually, however, the familiar names, places, and principles of law would fall into place and the reader then would realize that, in reality, he was revisiting Finney v. Halle, 241 Md. 224 , 216 A. 2d 530 (1966). The property in the case at bar is less than a mile to the east of the Halle property. Both properties are in the 3rd Election District of Bal ³³⁷ timore County and both abut the Baltimore Beltway. The zoning classification sought was the same in each case.

The same attorneys opposed each other. The same witnesses (with minor exceptions) testified in both cases. The Board of Appeals rezoned both properties for substantially the same reasons. In each case there were appeals first to the Circuit Court for Baltimore County and then to this Court.” Under our view of this case, the trilogy commenced by Halle and continued by Beth Tfiloh has been concluded by the case before us.

A Comprehensive Zoning Map for most of the Third District of Baltimore County was adopted on 16 January 1957, which classified the property which was the subject of litigation in Halle , the property which was the subject of litigation in Beth Tfiloh, and the property which is the subject of the present appeal as R-20 (residence, one family, 20,000 square foot lot) and R-40 (residence, one family, 40,000 square foot lot). At the time of the adoption of the Comprehensive Zoning Map, the proposed location of the Baltimore County Beltway in the area was generally known, but the plans and design of the Beltway interchanges to be located at Stevenson Road and Park Heights Avenue were not approved until 15 April 1959, a construction contract was not awarded until 23 January 1961, and the Beltway itself was not in general use in the area until 1962. The property which was involved in Halle consisted of 49.672 acres, being all that remained of Pillbox Farm, originally a tract of 69 acres improved by a substantial fieldstone residence, a tenant house and barn. The construction of the Beltway completely destroyed the house, the tenant house, the barn and several other outbuildings, leaving to the south of the Beltway an unimproved parcel without access which was acquired by the State Roads Commission; and to the north of the Beltway, left the 49.672 acre tract which was the subject of an application for rezoning from R-20 and R-40 to R-A (residence — apartment) and for a special exception for elevator apartments.

The requested reclassifications were granted by the County Board of Appeals; the reclassification to R-A was affirmed by the order ³³⁸ of the circuit court but the granting of the special exception was reversed. The court order was in turn affirmed on appeal, insofar as it related to the requested reclassification, but was reversed (so as to affirm the County Board of Appeals) as to the granting of the special exception for the construction of highrise apartments. The rationale adopted by the County Board of Appeals and by the lower court to justify the granting of the reclassification was that there had been sufficient changes in the character of the neighborhood since the adoption of the Comprehensive Zoning Map of 16 January 1957 to support the requested rezoning. We held, on review, that the issue before the Board was fairly debatable and that the result should not be disturbed by us.

In a dissenting opinion filed by Judge (now Chief Judge) Hammond, it was pointed out that the only substantial change which had occurred in the character of the neighborhood since the adoption of the Comprehensive Zoning Map on 16 January 1957 had been the determination of the precise location of the access and exit ramps at Park Heights Avenue and Stevenson Road. Halle was decided on 2 February 1966 and was immediately followed by the opinion filed on 29 March in Beth Tfiloh. In 1961 the Beth Tfiloh congregation had purchased a tract of 57.25 acres extending north from Old Court Road to the Beltway, adjoined on the -west by a development known as Dumbarton Heights. The land was purchased as a location for a synagogue complex, consisting of a sanctuary, a school, a social center and a library, all of which were designed by Morris Eapidus, a distinguished American architect of international reputation.

On 21 March 1963, the congregation entered into a contract of sale with the developer of Dumbarton Heights for the sale of the northernmost 20 acres of the site, on which the developer was to erect a number of apartment units designed by Mr. Lapidus, to which members of the congregation were to be given a limited priority as prospective tenants. This naturally required a change in the zoning classification from R-20 and R-40 to R-A (residence — apartment). Included in the application was a request for a special exception for a high-rise apartment building. Both the reclassification and the special exception were denied by the Zoning Commissioner; an appeal was ³³⁹ taken to the County Board of Appeals, which, on 25 June 1964, granted the rezoning but denied the special exception, basing its determination on changes which had occurred in the neighborhood and “the needs and desires of the Beth Tfiloh Congregation to accommodate its members.” On appeal to the circuit court, the determination of the County Board of Appeals was reversed.

The lower court’s opinion, filed on 14 June 1965, found that an extension of utility lines for water and sewage into the area made possible changes in use but did not constitute a change in character and that while the construction of the Beltway had had a substantial impact, from a legal point of view this was not the kind of change that justifies reclassification. On appeal to this Court, the order of the circuit court was reversed and the requested reclassification (but not the special exception) was granted, primarily on the ground that our opinion in the Halle case had not been available to the Court below. The case at bar involves a tract of 27 acres, roughly rectangular in shape, fronting on the north side of Old Court Road for a distance of 577 feet with an irregular depth of between 2125 feet on the east and 2190 feet on the west to the Beltway. On the east, it is bounded by property owned by Annita France, one of the appellants, which consists of an estate of some 140 acres used primarily for residential and agricultural purposes, and zoned R-40.

On the west the appellees’ land is contiguous to the property owned by the Beth Tfiloh congregation and to the adjacent property reclassified R-A in the Beth Tfiloh case. Across Old Court Road is a 55-acre tract owned since 1954 by the appellee, Joseph W. Shapiro, improved by a residence and zoned R-40. Mr. Shapiro testified that he purchased the tract which is the subject of the present appeal on 12 January 1962, as an investment and also to protect his own home, which is located on the 55-acre tract directly across Old Court Road. It should be noted, however, that the record discloses that Mr. Shapiro, subsequent to the filing of the petition in the instant case, filed an application for a reclassification of the 55-acre parcel from R-40 to R-A. The petition for reclassification of the tract which is the subject of this appeal was originally filed with the Zoning Com ³⁴⁰ missioner of Baltimore County on 31 July 1963, seeking a change from R-40 and R-20 to R-A and a special exception for elevator apartment buildings to permit the construction of three 16 story apartment buildings, containing 576 units.

On 20 September 1963, the staff recommended the denial of the petition for reclassification and for the special exception; and on 3 October 1963, an order was issued by the Deputy Zoning Commissioner in conformity with the staff recommendation. An appeal was taken to the County Board of Appeals on 28 October 1963 and prosecuted on the theory that changes in the character of the neighborhood and an error in original zoning would support the reclassification requested. Hearings were commenced on 30 June 1964 and were finally concluded on 31 March 1966, the delay apparently having been occasioned by the desire of counsel to continue the case until the filing of the Beth Tfiloh opinion. On 24 June 1966, the County Board of Appeals granted the reclassification but denied the special exception.

While the Board referred to the expansion of utility services and the construction of the Beltway as evidence of changes in the area, greater emphasis was laid on the development of the Beth Tfiloh complex. In its opinion, the Board said: “The Board certainly agrees that a line of demarcation must be drawn somewhere and obviously all of the available vacant land in the immediate area, which is in excess of 200 acres, should not be zoned for apartments. However, we feel that if a line is to be drawn it properly should be drawn on the east boundary of the subject tract. The Board feels that we are constrained to follow the Court’s Opinion in Beth Tfiloh v. Blum as all of the same factors are present in this case that were present in the Beth Tfiloh case.

In the instant case we feel that the numerous and substantial changes in the neighborhood, and particularly the construction of the synagogue, school, and apartment complex on the Beth Tfiloh tract, which is immediately adjacent, warrant the reclassification requested here. In arriving at our decision to reclassify this property to ³⁴¹ apartment zoning we do not intend in any way to commit othef properties in the area to he likewise reclassified, and any future petitions must stand on their own merit.” On 22 July 1966 the appellants entered an appeal to the Circuit Court for Baltimore County; the appellees were