Hedin v. Board of County Commissioners

Bruñe, C. J., delivered the opinion of the Court. John D. Hedin, the appellant, submitted to the Board of County Commissioners of Prince George’s County a petition for the rezoning of a tract of about 4% acres of land owned by him from a classification of “R-55”, which is for single family detached dwellings, to a classification of “R-18”, which is for low density apartment use. The Board of County Commissioners (hereinafter usually referred to as the “Board”) was acting in this matter in its capacity as the District Council for that portion of the Maryland-Washington Regional District which lies in Prince George’s County. (See Code (1951), Article 66B, Section 35; Code of Public Local Laws of Prince George’s County (1953), Section 1117; Acts of 1953, Chapter 622, Section 2.) The Board denied the petition for reclassification of the property, and the appellant filed a bill of complaint against the Board seeking relief in equity on the ground that the action of the Board was unreasonable, capricious and arbitrary.

The Circuit Court for Prince George’s County sustained the Board’s demurrer, without leave to the complainant to amend his bill. The appeal is from that order. The petition for reclassification was originally filed with The Maryland-National Capital Park and Planning Commission (hereinafter referred to as the “Planning Commission”). After investigation, the Technical ²²⁸ Staff of the Planning Commission recommended approval and the Planning Commission approved the Staff recommendation and in turn recommended to the Board that the petition be approved.

Most of the essential facts in the case are set forth in the report of the Technical Staff. It states the requested change from a one-family, detached, residential zone (R-55), and recites that the Zoning Plan proposes the property in question for continuance in the R-55 Zone. It described the property as trapezoid in shape, containing 4.76 acres, fronting 429.20 feet on the northerly side of Queen’s Chapel Road, having an average depth of 535 feet, and being, at its southwesterly corner, approximately 750 feet northeast of Russell Avenue. A plat was filed as an exhibit with the bill.

It purports to have been prepared from an official record of the Commission and it was presumably before the Board. A copy of it is appended to the appellee’s brief. It shows the location of the property as being near the intersection of Queen’s Chapel Road and Chillum Road. Notations on the plat show a total of ten reclassifications of property between November, 1940 and October, 1952.

One of these, made in 1947, reclassified property adjoining the appellant’s land on its northerly side for apartment house use. Most of the reclassifications shown were from residential to commercial use. The two following paragraphs are taken from the report of the Technical Staff of the Commission: “Results of Field Inspection: The Subject property is vacant and is bounded on its westerly side by a tract of land owned by the Marist Brothers (a Catholic Order). The parcel is bounded on its northerly side by a large, vacant tract of land reclassified to the apartment house zone under Petition No. 1016.

With the exception of a few one-family dwellings on 29th Avenue and on Queens Chapel Road, the adjoining property to the north is undeveloped up to a commercial area centered at Chillum and Queens ²²⁹ Chapel Roads. Across Queens Chapel Road to the south is the Queens Chapel Gardens apartment development. Between these apartments and the District of Columbia line on the southerly side of Queens Chapel Road is the one family subdivision of North Woodridge. The Avondale subdivision begins at a point approximately 560 feet south of the subject property and runs to the District of Columbia line.

Comments: The Zoning Plan adopted by the Commission proposes that the subject property remain in the R-55 Zone. However, sufficient change has taken place in the area to justify the reconsideration of that proposal. Queens Chapel Road has been widened to a dual lane, divided highway, and extensive commercial development has taken place near the intersection of Chillum and Queens Chapel Roads. The land uses in the areas adjacent to Queens Chapel Road break very sharply from one-family subdivision type development to multiple family use at 25th Avenue.

On the southeasterly side of Queens Chapel Road north of 25th Avenue are the Queens Chapel Garden apartments, the Mount Rainier Junior School, the Queenstown apartments and shopping center. On the opposite side of Queens Chapel Road are the subject property, scattered dwellings, vacant land and the new Queens Chapel Shopping Center. South [Southwest?] of 25th Avenue on both sides of Queens Chapel Road to the District of Columbia line are the one family subdivisions of North Woodridge and Avondale. The staff, therefore, feels that it is appropriate to recommend approval of this petition based upon the changes that have taken place during the past several years and upon the existing and potential land use of adjacent properties.” ²³⁰ The record of the hearing before the Board, which was also filed as an exhibit with the bill, shows that counsel for the applicant showed some airplane photographs of the neighborhood, and that a representative of the Planning Commission showed the location of the tract on the map (presumably the same as that from which the plat was made), and he stated the facts as contained in the Staff report above referred to.

Two protestants appeared and spoke: (1) a Mr. Donnelly, who said he represented the Avondale Citizens Association, and who lived a half-mile from the tract in question; and (2) a Mr. Pfluger, who said that he lived at 4600 - 21st Street, Woodbridge, and had lived there for sixty-two years. The record does not show that Mr. Pfluger professed to represent anyone other than himself. Mr. Donnelly asserted that rezoning the appellant’s land would in effect rezone the adjacent land. He also asserted, without giving any reported reasons for his view, and without (so far as the record discloses) showing any qualifications as a real estate expert, that the land could be developed into eight or nine very excellent homes.

Mr. Pfluger, whose qualifications as a real estate expert or zoning authority were not shown either, stated that he did not agree with the Planning Commission, and said that the granting of the application would be “spot zoning.” One neighbor, who lived at 2302 Queen’s Chapel Road, stated that she did not think that the proposed change would depreciate the value of her property. Mr. Hedin, the applicant, was the only other witness. He is a builder. He said that he lived on Queen’s Chapel Road, but did not give the number or otherwise identify the location of his home.

He said that he had bought the property in question about ten years before the hearing and that there were no apartments across the street at that time. He further testified that it was not practicable to use his property for anything other than apartments. He was then asked by his counsel whether it would be possible to put, say, eight or nine houses on that property. He answered, “No it would not.” Mr. Donnelly then asked ²³¹ him how many houses could be put there, and Mr. Hedin answered, “Probably about five.” That was the end of the testimony.

One of the Commissioners then said: “Mr. Chairman, I am rather familiar with this property. In my opinion I think it would be detrimental and it would be bad zoning to grant this R-18 zoning. Therefore, I move that Petition No. A-2450 for rezoning from R-55 to R-18 be denied.” The record before the Board contains just one more sentence which states that the motion was seconded by another Commissioner “and duly passed.” There are a number of allegations in the bill, which do not appear to have been before the Board, and which relate largely to controversies between the appellant on the one hand and the Avondale Citizens Association and its predecessor and Mr. Pfluger on the other. Mr. Pfluger had been president of the predecessor association some years ago.

There are also included in the appendix to the appellant’s brief copies of letters from various neighbors favorable to the appellant’s desires. So far as we can discover, not one of these so called “approvals of property owners” was before either the Board or the Circuit Court; and all of those which are dated bear dates subsequent to the Board hearing and to the filing of the bill. They have no proper place in the appendix, and of course cannot be considered. Allegations of other matters extraneous to the hearing before the Board likewise cannot be taken into consideration in this case in ruling upon the validity of the action of the Board.

The question before us is the correctness of the ruling of the Circuit Court on the defendant’s demurrer; and that in turn, depends — as the case has been presented to us — upon whether or not the action of the Board was arbitrary, unreasonable or capricious. The opinions expressed by Messrs. Donnelly and Pfluger, as reported in the record of proceedings before the Board are, we think, very weak as supports for the conclusion of the Board. Indeed, Mr. Pfluger’s characterization of the proposed change as “spot zoning” seems ²³² unsupportable on the facts with regard to the zoning of other property in the immediate vicinity. “Spot zoning” is described by Judge Delaplaine in writing the unanimous opinion of this Court in Cassel v. City of Baltimore, 195 Md. 348, at 355 , 73 A. 2d 486, at 488 , as “the arbitrary and unreasonable devotion of a small area within a zoning district to a use which is inconsistent with the use to which the rest of the district is restricted.” As was said in Offutt v. Board of Zoning Appeals, 204 Md. 551, at 561 , 105 A. 2d 219, at 223 , “A reclassification can be considered as ‘spot zoning’ only when it fails to bear a substantial relationship to the public health,