George F. Becker Co. v. Jerns

Horney, J., delivered the opinion of the Court. This proceeding for declaratory and injunctive relief was; brought to test the validity of the rezoning of a tract of land in Howard County from R-20 (residential) zoning to M-2 (industrial) zoning. The question on appeal is whether the Board of County Commissioners (board) acted in conformity with law when it undertook to incorporate the residentially zoned tract it had previously reclassified (despite the challenge of the reclassification in a pending judicial proceeding) into a subsequently adopted comprehensive rezoning plan and map as an industrial zone. The chancellor declared the action of the board null and void.

We agree. The tract in question—described as a 19-acre piece of wooded and unimproved land with a rough topography in an area that is zoned residential around the whole of its perimeter other than a distance of about 900 feet along the right of way of the Baltimore and Ohio Railroad—is the undeveloped portion of the “Florey Subdivision” located at the end of a narrow semi ⁵⁴³ private road or lane, known as Florey Road, leading from Hanover Road into and through the developed portion of the subdivision. Within the perimetric residential area there are about forty dwellings ranging in value from $12000 to $25000, and with one insignificant exception—a reclassification to permit the use of a basement in a dwelling as a grocery store—the entire area is used only for residential purposes. But on the other side of the railroad tracts, the area is classified heavy industrial (M-2) and is used for a number of industrial purposes.

Immediately opposite the subject property there is a cement products plant and a garage. After the contract purchaser (George F. Becker Company) applied for reclassification of the property from a residential to an industrial use, a hearing was held before the board in December of 1958, and a group of residents in the surrounding area appeared to protest the reclassification. Six months later, in June of 1959, the board, despite the recommendation of the planning commission to the contrary, granted reclassification and assigned as reasons therefor: that the industrial use of the area across the railroad tracks made “the property unsuitable for residential use”; that there was a “need for industrial property adjacent to a railroad” where a siding could be located; that the property was so situated that “the industrial use” thereof would “not adversely affect the surrounding area”; and that the rezoning was a “logical and practical extension” of an existing industrial use on the other side of the tracks. The protestants promptly filed a bill in equity attacking the validity of the action of the board on the theory that it was arbitrary and created spot-zoning in a wholly residential use zone for the special benefit of the contract purchaser.

But, probably because a prompt hearing was not demanded by either side, the proceeding remained dormant for more than a year. Meanwhile, the planning commission, which had been working on the proposed revision of the general plan of county zoning, prepared a new general plan or map and submitted it to the board in July of 1960 for adoption. Therein, the commission, despite the previous decision of the board, recommended ⁵⁴⁴ (as it had done in 1958) that the original residential classification of the property in question be retained. But, after a number of hearings at which, according to the official exhibits in the record, no change was contemplated, the board, in adopting the new plan as the official zoning map of the county, specified that the new plan and map should be so revised as to show that the property in question had been rezoned industrial without stating at that time the reason for its action.

After the board had reaffirmed or reinstated the industrial reclassification it had previously granted, the planning commission revised the new zoning map showing the change in zoning that had been ordered by the board. While the record is scant, it appears from what is printed in the appendix to the appellant’s brief that the board, having made up its mind as to what was proper zoning for the property two years before, never abandoned the opinion then expressed, and based its decision to revise the comprehensive rezoning map solely on conditions that had existed “back in 1959” without considering any further evidence because (as the president of the board testified) such conditions had not “changed at all.” The protestants, who were surprised when they subsequently learned that a change of zoning had been ordered, sought and were granted leave to further amend the once-amended bill of complaint so as to also attack the reclassification on the theory that the alleged unorthodox action of the board was invalid. Other than what may be inferred from the reasons assigned by the board for granting the reclassification in June of 1959, there is nothing in the record before us to indicate the nature and character of the evidence presented at the hearing before the board on the initial application for reclassification. Nor does the record contain all of the evidence produced at the hearing before the chancellor on behalf of the contract purchaser as is material to the question to be decided on appeal.

Although the evidence given by the expert and only witness on behalf of the contract purchaser was not included in the appendix, we are informed by the opinion of the chancellor that he testified in court to the effect that extension of the existing industrial use from across the railroad tracks into the residen tially zoned area was logical and justifiable and that the to ⁵⁴⁵ pography of the property was such as to make it unavailable and unsuitable for residential use. But so far as the