Habliston v. City of Salisbury

McWilliams, J., delivered the opinion of the Court. Birnam Wood has indeed come to Dunsinane. Appellants importune us to reverse the chancellor, Travers, J., and to set at naught an ordinance of the City of Salisbury reclassifying a 16 acre tract from “Industrial” to “Residential B” because, they insist, the change “will depreciate the value of * * * [their residences] and * * * interfere with their use and enjoyment of the same.” Perhaps it is just as odd that we think they have the right of it. The 16 acre tract (the property) lies in a salient of the western boundary of the city.

It fronts on Parsons Road which, besides being the southwestern boundary (about one-half mile) of the property, is also a segment of the city line. Its northeastern boundary consists of two ponds separated by an earthen causeway sustaining Mitchell Road which, bisecting the property, intersects Parsons Road. Salisbury Parkway (U.S. 50), completed in 1962, is about 500 feet north of the ponds. Mitchell Road extends only to Main Street, not to the Parkway.

The Horace Mitchell property, fronting on Pemberton Drive, and the Parsons property, fronting on Parsons Road, make up most of the northwestern boundary. Efforts to rezone these two properties from “Industrial” to “Residential B” are being contested in other litigation. Fitzwater Street, a property owned by the city, and another owned by a construction company establish the southeastern boundary. The property is owned by Salisbury Brick Company, Inc. (the company), which for many years used the portion west of Mitchell Road for the manufacture of bricks.

The portion east of Mitchell Road was used, until 1948, for the manufacture of cinder blocks. When the comprehensive zoning ordinance was adopted in 1958 the prop ³⁵³ erty was placed in the industrial classification since, as J. Walter Mitchell the company’s president testified, it was “operating as an industrial concern.” In 1966 the manufacture of bricks was discontinued “due to the shortage of raw material and [the] scarcity of labor.” Demolition of the buildings, begun in 1966, was completed in 1968. Only an office building remains; it was sold to the Parsons Vending Company which, Mitchell concedes, continues to use it for about the same purposes (office, repair shop and warehouse) for which the company used it. Mitchell said he was never able to find a buyer for the property interested in using it for industrial purposes.

Nor, it seems, did he try very hard. In 1969 Maurice P. Freedlander, of Baltimore, agreed to buy the property provided the zoning classification could be changed from “Industrial” to “Residential B.” He proposes to build garden apartments and town houses, some two stories high, some three stories. The project, described as a “high density residential use,” is to be “aimed” at “low to medium income” groups. Freedlander hopes to build about 200 units.

While a number of residents in the neighborhood became plaintiffs in the bill to have the ordinance declared “null and void,” only Charles Habliston appeared and testified. The question first to be dealt with is whether he has standing. Freedlander raised the issue in his answer but he did not argue it before the chancellor. The city did not mention standing in its answer but argued it below.

Judge Travers’ opinion contains no comment in this regard and, of course, he had no finding. The appellees say, and we agree, that because this is a bill in equity praying a declaration that the ordinance is invalid the plaintiff’s allegation of how he is specially damaged by the zoning ordinance must be definite and he must meet the burden of showing such special damage by competent evidence. Bryniarski v. Montgomery County, 247 Md. 137 (1967). They argue, of course, that appellants have neither alleged nor proved special damage.

We do not see it quite that way. The allegation, the essence ³⁵⁴ of which is set out in the opening paragraph of this opinion, seems to us to be adequate. The Chatham Corporation v. Beltram, 243 Md. 138, 148 (1966). Habliston’s property, consisting of a residence, a barn, a few outbuildings and about three acres of land is separated from the property only by Pemberton Drive and the Horace Mitchell lot.

The distances from his eastern boundary (Pemberton Drive) to the boundaries of the property range from 200 to 500 feet. He testified that, before he acquired the property in 1967, he made it his business to find out how the brickyard and the Horace Mitchell properties were zoned. He found the zoning to be “Industrial” and he said he “felt * * * [he] could rely on this so-called Comprehensive Master Plan [to] remain unchanged, [and] that * * * [he] could count on it[s] being industrial for some time to come.” “Based” on that, he added, he made his “decision to buy the property.” He agreed that the number of trucks using Pemberton Drive and Parsons Road to get to the oil tank farms and the concrete plant along the nearby (Wicomico) river was often disturbing. What follows is an excerpt from his cross-examination : “Q. And yet you are in the position of a resident fighting for industrial zoning and industrial development ? “A. Yes, sir, right. “Q. Why is this? “A. I would prefer, if I had my drathers, not to have either.

But if I have to choose between hordes of trucks disturbing my tranquility going by the side of my house as they are now doing, or putting up with hordes of humans swarming over my property, decreasing its value. Of the two, I would have to take the trucks. I don’t want either, better trucks than destruction of property values. [Emphasis added.] “Q. But the real truth is you don’t want either, do you ? ³⁵⁵ “A. I would say yes. “Q. You would like to see this be a barren buffer zone for your property? “A. I would say I would like to see the industrial sites similar to the nice plants at Cambridge.” It will be observed, of course, that neither Freedlander nor the city made any attempt to rebut Habliston’s testimony in respect of the impact of the proposed reclassification on the value of his property. We think he has demonstrated his standing to maintain the action.

In The Chatham Corporation v. Beltram, supra at 148, Chief Judge Hammond, for the Court, said: “Since Beltram’s evidence was that he owned property, in which he lived, in close proximity to the reclassified land and had said that from his experience high density and smaller lots depreciated neighborhoods and values — a claim Judge Macgill found plausible — there was no error in the ruling that Beltram had standing to sue.” See also the added comment of Judge Smith who delivered the opinion of the Court in the second Chatham case. The Chatham Corporation v. Beltram, 252 Md. 578, 584 (1969). Appellees argue further that any inference of special damage arising out of the close proximity of Habliston’s land to the property is rebutted by the fact that this is an up rather than a down zoning. Carey v. Martin, 251 Md. 446 (1968) ; Board of Zoning Appeals v. Bailey, 216 Md. 536 (1958).

They assume that, because “Residential B” is a more restricted use, ipso facto, property values in the neighborhood must either increase or, at least, remain unimpaired. It should be pointed out, perhaps, that while we have said an adjoining, confronting or nearby owner is deemed, prima facie, to be specially damaged and that the burden of going forward with contrary evi ³⁵⁶ dence shifts to the person challenging the protestant’s status, Bryniarski, supra, and Wier v. Witney Land Company, 257 Md. 600 (1970), we have not yet recognized the availability of such a presumption to plaintiffs in equity cases such as the one before us. Even if it were available it does not follow that “up” zoning benefits everyone. Carey, supra; Bailey, supra.

In the circumstances of this case and assuming the fruition of Freed-lander’s proposals, one can readily surmise the likelihood of an erosion in the value not only of Habliston’s property but of his neighbors’ as well. We shall proceed now, using a current inelegance, to the nitty-gritty of this dispute. Appellees contend there is in the record enough evidence of both change and mistake to make those issues fairly debatable. Kirkman v. Montgomery County Council, 251 Md. 273, 276 (1968).

Judge Travers put it this way: “It is true, as pointed out in the protestant’s brief, that but one witness testified that the original zoning was a mistake. This, I think, is sufficient to raise the question of mistake before the Mayor and Council. Its probative force value may or may not have been nil, but that is the concern of the legislative body. All too frequently a single witness has determined the outcome of a case and it is my belief that it raised a reasonable debatable issue.

No more is required. “With respect to the ‘changed conditions,’ I find that the record is replete with witnesses testifying to changes which could be substantial. I believe some of the changes suggested by the witnesses as too tenuous to pass a change in zoning upon, but here again, a reasonably debatable issue arises on others.” The “one witness” referred to by Judge Travers must be J. Walter Mitchell, since no other witness touched upon the subject. Mitchell had been a member of the Board ³⁵⁷ of Zoning Appeals for “six or seven years.” He said he came “off of the Board in 1968.” He was asked during his direct examination if the “Industrial” classification was proper zoning or “was that a mistake.” He thought it was a mistake “because it [the property] had been laying there for ten years and * * * [they] had no prospective buyer for industrial use.” On cross-examination he hedged a little. He denied that he said the industrial classification was a “mistake originally,” but that it just turned out to be a mistake.

He said he did not protest the original classification and he conceded that during his “six or seven years” on the Board of Zoning Appeals he made no “effort to correct the zoning.” The following excerpts from his cross-examination are revealing: “Q. Well, but at that time that it was zoned Industrial, was there any more other zoning classifications that would have been more appropriate ? “A. Well, we were operating as an industrial concern then. I guess not. “Q. So if you were operating as an industrial concern, it only makes sense zoning Industrial at the time that was originally zoned ? “A. Right.” “Q. Now, most of the industrial buildings have been removed from this piece of land now,