Franklin Construction Co. v. Welch

Barnes, J., delivered the opinion of the Court. This case involves an appeal by the Franklin Construction Company (Franklin), from an order of the Circuit Court for Baltimore County (Proctor, J.), dated January 3, 1968, which affirmed a decision of the County Board of Appeals of Baltimore County (the Board), dated December 12, 1966, denying the petition of Franklin to rezone from an R-10 zone (residential, one family, 10,000 square feet per lot) to a B-L zone (business-local) a 7.3 acre tract of land owned by Franklin in the Catonsville area of the First Election District of Baltimore County (the subject property). The subject property has a frontage of approximately 340 feet on the east side of Bloomsbury Avenue. It is bounded on the south by Spring 'Grove Lane, on which it has a frontage of approximately 494 feet, on the southeast by the right-of-way of the Catonsville Short Line Railroad for a distance of 735.8 feet, and on the north by the property of the German General ⁷¹⁷ Orphan Home for a distance of 949.37 feet.

The subject property is improved by two old residential buildings. Immediately to the southeast of the railroad right-of-way lies the property of the Spring Grove Asylum, the power plant of the Asylum being located at the intersection of Spring Grove Lane and the railroad right-of-way. The Asylum operates an elevated spur of the railroad for use in dumping coal for the operation of its power plant. The subject property slopes from the north to the south with a grade varying between 10% to 15% and in some cases as much as 20%.

From west to east it slopes an average of 10%, with a drop of approximately 40 feet over a 500 foot distance. The subject property was zoned R-10' by the County Council of Baltimore County in the comprehensive zoning adopted on April 5, 1960. North of the subject property, on the same side of Bloomsbury Avenue the land is also zoned R-10 and is used for institutional purposes by the German General Orphan Home. The eastern edge of the subject property abuts the large tract of land occupied by another institutional use, the Spring Grove State Hospital.

To the south of the subject property between Spring Grove Lane and Holmes Avenue is a tract of land zoned R-6 (residential, one and two-family, 6000 square feet per lot) and developed with several single family homes. South of Holmes Avenue, between Holmes Avenue and the Catonsville Senior High School, the land is zoned R-10 and is so developed. West of Bloomsbury Avenue the land is also zoned R-10 with the exception of a small triangular tract of land adjacent to the subject property zoned R-A (residence, apartments) and improved by garden apartments. Bloomsbury Avenue had for some years, and at the present time has, a right-of-way of 30 feet of which 22 feet are paved.

There is a proposal to expand its right-of-way to 60 feet with 44 feet of paving, but the uncontradicted testimony of George E. Gavrelis, Director of Planning in the Baltimore County Office of Planning and Zoning, indicated that the “current county capital program, which extends through the year 1971, contains no specific program for improvement to Bloomsbury Avenue, or any road in the very immediate area of the subject property.” ⁷¹⁸ Franklin acquired the subject property in 1954. In 1958, it applied for M-R (manufacturing-restricted) zoning but the Board denied this application for rezoning principally on the ground that a traffic hazard would be created. On appeal to the Circuit Court for Baltimore County, the decision of the Board was affirmed on January 26, 1960. No appeal was taken to this Court.

The present application for B-L zoning, as amended, is for the erection of six buildings principally used for commercial purposes, offices and parking. Three of the proposed buildings, generally facing Spring Grove Lane, would have either eight or nine levels and would be 100 feet above Bloomsbury Avenue. The required parking would be for 645 vehicles. The development plan would provide for 104 parking spaces in Building No. 5, 104 parking spaces in Building No. 6 and 442 surface parking spaces, a total of 650 spaces, or five more than the required parking spaces.

There would be approximately 40,000 square feet in the proposed buildings for commercial use and 60,000 square feet for office space. In the amended application there would be no apartments. Jack O. Chertkof, a vice-president and minority stockholder of Franklin 1 was the principal witness for Franklin at the hearing before the Board. He is a consulting engineer and graduated from the School of Engineering of the Johns Hopkins University in 1932.

He testified in regard to the project, the terrain and surrounding property and also in regard to the traffic problem. He had personally made a traffic count and considered that the traffic situation was critical. He testified further that there had been a severe traffic problem since 1947 and that it would remain critical until Baltimore County relieved it. He also testified that the operation of the project would “increase the traffic to Bloomsbury Avenue.” It was his opinion that if Bloomsbury Avenue were widened it would be of ample capacity to take care of the traffic which would be generated by the proposal.

On the question of the use of the subject property under R-10 zoning, he testified: “It is not suitable; nothing is impossible, but I can’t possibly picture anyone that would buy the property or build homes on an R-10 development plan.” ⁷¹⁹ David H. Wilson, an architect and site planner, testified on behalf of the applicant. He testified that after he had visited the subject property an analysis was made at his office in regard to the traffic situation and other relevant matters. Mr. Wilson conceded that the subject property could be used for R-10 development but that, in his opinion, it was “less than ideal” and as a site planner he would advise a client not to build in the area under the R-10 zoning. He further conceded that the 10% slope was not excessive and although one would not pick a 10% slope for development “it certainly could be used for R-10 zoning, there are many individual house developments where 10% slopes and greater slopes have been adapted for use.” In regard to the traffic situation Mr. Wilson testified that he “couldn’t but concur with the statement that the road is inadequate.

The traffic was heavy when we were there. The road appeared unsafe, and there was congestion * * * a half mile north of Frederick Road.” Mr. Wilson was prepared to offer an opinion in regard to the proper and best use of the land but the Board refused to receive the evidence on the ground that Mr. Wilson was not qualified to give such an opinion. Counsel for the applicant made a proffer of what would be Mr. Wilson’s testimony and the proffer was refused, counsel taking an exception to this ruling. Dr. W. Worthington Ewell, a well-qualified traffic expert, was called as a witness for the applicant.

Dr. Ewell had made a traffic study of the area. He testified that beginning in the year 1963 there had been approximately a 33% increase in the amount of traffic on Bloomsbury Avenue which he characterized as an inordinate increase so far as the road is concerned and further that Bloomsbury Avenue “during the peak hour of the morning is constantly jammed.” He further testified that additional institutional construction in the neighborhood would “undoubtedly create more traffic” and that even development of the subject property on the basis of R-10 zoning would create more traffic problems. It was his opinion that if Bloomsbury Avenue were widened to the contemplated 44 feet, it would have a capacity to handle traffic generated by the proposed development. Mr. Gavrelis testified for the protestants and pointed out that ⁷²⁰ the planning department of Baltimore County had recommended that the proposed rezoning should not be granted.

The comments of the planning staff were as follows: “1. Property adjacent to the subject parcel generally is zoned R-10 or is unzoned public land. The surrounding area is developed residentially or with institutional uses. From a planning viewpoint, the reclassification requested would result in the creation of a spot zone. “2.

Accessibility to the subject parcel is extremely poor. Bloomsbury Avenue, which is the primary road serving the property, has only a thirty-foot right of way, with a twenty-two-foot-wide pavement. There are no east-west cross connections. Thus, the site is inadequately served for any Business Local uses at all, much less for uses of the scale shown on the petitioner’s plat.

The latter is a good example of the grossly out-of-proportion land-use potentials which this property would have were the reclassification to be granted. The development shown on the plat would be appropriate in a town center, perhaps near an expressway interchange, or possibly integrated with a large industrial park; by no stretch of the imagination could it be considered appropriate at the subject location. “3. It is our considered opinion that the First District Comprehensive Zoning Map was correct as adopted, and that there have been no changes in the area of the subject property that would justify any change in the present zoning.” Mr. Gavrelis testified that, in his opinion, he would not say that the subject property was no longer usable as R-10 and stated “R-10 was recommended as