Germenko v. County Board of Appeals

Singley, J., delivered the opinion of the Court. Germenko is the owner of an unimproved wedge-shaped half acre lot in Baltimore County, having a frontage of some 300 feet on the south side of Hollins Ferry Road with a depth of about 110 feet on its easternmost boundary and of about 20 feet on its westernmost boundary. When zoning map 2A for the Lansdowne-Arbutus area of the County was adopted on 2 June 1959, the lot was classified R-6 (one family residential, minimum lot size 6,000 square feet). Because he believed the development of the lot for residential purposes was not economically feasible, Germenko filed with the Baltimore County Zoning Commissioner an application for the reclassification of the lot as B-L (business, local) so that it could be used as a site for a small carry-out restaurant.

The application was denied by the Zoning Commissioner and the denial was affirmed by the County’s Board of Appeals. This appeal is from an order of the Circuit Court for Baltimore County affirming the action of the Board of Appeals. ⁷⁰⁸ Germenko pins his hopes on the change-mistake rule in support of the relief which he seeks. We said of piecemeal zoning in Wells v. Pierpont, 253 Md. 554, 557 , 253 A. 2d 749 (1969) : “It is now firmly established that there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom there must be produced strong evidence of mistake in the original zoning or comprehensive rezoning or else evidence of substantial change in the character of the neighborhood [citing cases]. And, of course, the burden of proof facing one seeking a zoning reclassification is quite onerous.” At the hearing before the Board, Germenko’s expert witness testified about changes in the area.

The Germenko property lies about 600 feet west of the intersection of Hollins Ferry Road and Hammonds Ferry Road. The witness testified that in November of 1964, a lot in the southwest quadrant of the intersection, zoned R-6, was reclassified B-L (business, local) with a special exception for an automobile service station. A part of this property is now improved by a filling station; the rest is vacant. While this lot is adjacent to Germenko’s, it is separated from it by a storm drainage reservation, about 50 feet wide at Hollins Ferry Road and 100 feet at the rear lot line.

There was further testimony that in May of 1965 a lot in the northeast quadrant of the intersection, zoned R-6, had been reclassified B-L, with a special exception for an automobile service station. It is now the site of a filling station and a farm store. Four other changes relied on by Germenko’s witness involved reclassification of properties from one and one-half to three blocks distant from Germenko’s. The first two, in January, 1964, involved a reclassification from R-6 to B-L and R-A (residence, apartments).

Two others ⁷⁰⁹ in 1965 and 1966 reclassified R-6 property as R-A in one instance, and as M-L (manufacturing, light) in the other. None of these four properties had been improved at the time of the hearing before the Board. The weakness of Germenko’s reliance on change is that while changes in conditions may justify a reclassification, they do not necessarily compel it, Skipjack Cove Marina, Inc. v. County Comm’rs for Cecil County, 252 Md. 440, 453 , 250 A. 2d 260 (1969) and cases there cited, nor does the rezoning of abutting property always warrant the rezoning of adjacent property. Wahler v. Montgomery County Council, 249 Md. 62, 67 , 238 A. 2d 266 (1968) ; Baker v. Montgomery County Council, 241 Md. 178, 185 , 215 A. 2d 831 (1966).

See also Brown v. Wimpress, 250 Md. 200 , 242 A. 2d 157 (1968). The issue was a debatable one, within the province of the Board. The property owner’s second argument, that his lot was mistakenly zoned R-6, because it cannot be economically developed for residential purposes, is even less persuasive. Germenko’s rear lot line abuts on the rear lot line of houses on Research Avenue, some 100 feet to the south.

These are relatively new (one witness said that he had purchased his house new in 1955), well maintained, single family residences which sell for about $10,000. Whether all of them had been built at the time of the adoption of the 1959 zoning map is not