Furnace Branch Land Co. v. Board of County Commissioners

Hammond, J., delivered the opinion of the Court. Appellant sought a mandatory injunction to compel the Board of County Commissioners of Anne Arundel County to rescind, as unconstitutional and void, its resolution denying the application to rezone two tracts of land from Agricultural to Garden-Type Apartment classification and to compel the Board to grant the requested reclassification. Judge Duckett, sitting in the Circuit Court for Anne Arundel County, found that the question the Board had to answer was fairly debatable and that its refusal to rezone was not arbitrary, discriminatory or illegal. We think he was right.

The land in question is in the Fifth Election District of Anne Arundel County and consists of two tracts. The first, some sixty acres, is on the south side of Furnace Branch Road be ⁵³⁸ tween the Old Annapolis Road on the west and Route 3 (which passes over the tract on two bridges) on the east. The second parcel, some fourteen acres, is on the north side of Furnace Branch Road between Route 3 on the west and Cedar Avenue on the east. The applicant for rezoning, the appellant, wishes to construct some one thousand garden-type apartments.

It produced recognized experts in land planning, traffic, sewerage and water supply and schools. They presented before the Planning Commission and the Board of County Commissioners of Anne Arundel County, sitting together, at three lengthy hearings (at which there were persistent, loud and, at times, uncontrolled if not unruly, protests of neighbors), a well organized case which, at least on the face of things, showed that since 1952, the time of the adoption of the last zoning map, there had been numerous changes in the zoning classifications within a two and one-half mile radius 1 that the existing roads would adequately serve the needs of existing traffic and traffic generated by the new apartment dwellers, that there could be provided adequate sewerage facilities and water supply and that there was a need in northern Anne Arundel County for garden-type apartments. The expert testimony was that the sites were logical and excellent places (and uses of the land) for garden-type apartments and that their construction would rectify a present imbalance in the housing supply of the County because, in the vernacular of the experts, they would have centrality of location, strategic access and proximity to key employment concentrations. Furnace Branch Road is largely lined on both sides between Old Annapolis Road on the west and the Ritchie Highway on the east with cottage-type homes, some quite substantial.

The residents of these houses and other nearby neighbors objected intensely and vocally to garden-type apartments (which they conceived to be row house wolves in apartment sheep’s clothing) in their midst, on the grounds that (a) school facilities ⁵³⁹ are already overcrowded, (b) roads are narrow and curved, (c) the available sewerage facilities have been completely and dangerously inadequate for years and no relief is in sight, and (d) the water supply is frustratingly weak. The Board found there was a need in the County for “Garden-Type Apartments and other forms of high-density housing,” that it had previously rezoned other sites for such apartments and “will, in the future, entertain other applications for this purpose at locations which, in the opinion of the Board, are suitable for said use,” but held the desired use of the subject property presently was undesirable in fact. The Board concedes that there had been shown changes in the neighborhood, and a general need in the County for the use sought (although a protestant testified to a documented finding of a lack of need in the subject location because of vacant houses or already approved high density facilities near plants of large employers). It relies on the claimed present overcrowding of the schools, the narrowness and crookedness of Furnace Branch Road, and the deficiencies in sewerage facilities and water supply.

If it be assumed that the applicants for rezoning demonstrated sufficient change in conditions, over-all need, the adequacy of roads and of existing or soon to be existing schools and water supply (there is no claim that without rezoning no reasonable use can be made of the land), we think there was substantial evidence before the Board which permitted it reasoningly and reasonably to find that the lack of sewerage and water, particularly sewerage, made the concentration of thousands of people on the property in question not in the public interest, if not dangerous to the