Heller v. Segner

Hammond, C. J., delivered the opinion of the Court. The appellants (who seek a rezoning in Anne Arundel County from residential to commercial) used the spear of perseverance to attack, advancing beneath their banner proclaiming: “If at first you don’t succeed, try, try, try again,” 1 and the appellees (protesting neighbors) defended with the shield of res judicata, waving their flag ³⁹⁵ inscribed: “The more things change, the more they remain the same.” 2 In 1962 the County Commissioners granted the petition of the owner of a 5.6 acre plot of ground at the northwest corner of Renfield Road (which runs east and west) and Jumpers Hole Road (which runs north and south) to rezone the property for commercial use. The comprehensive zoning in 1952 had put 100 feet by some 200 feet at all four corners of the intersection in the Light Commercial zone. The 1962 application sought —and the Commissioners granted — a change at the northwest corner to Heavy Commercial (for use as a filling station) and a change of the rest of the property from Agricultural to Light Commercial for use as the site of a shopping center.

Judge Duckett, in the Circuit Court for Anne Arundel County, nullified the actions of the Commissioners, ruling that there had been shown no substantial change in the character of the neighborhood since the original comprehensive zoning of 1952. On appeal, this Court affirmed. Judge Henderson said for the Court in County Comm’rs v. Fairwinds, 230 Md. 569 , 572: “We think the Chancellor was correct in holding that the rezoning was not supportable on the record. The neighborhood is almost solidly residential.

There is a tavern on one corner and a filling station on another * * *. The lot in question abuts a proposed elementary school of 24 rooms and is directly across the road from a country club. There was no evidence at all of mistake in the original zoning in the comprehensive plan adopted in July 1952. The change sought to be established in order to justify rezoning to permit the shopping center, was that in recent years some property, formerly farm land, had been utilized for the building of residences, with a consequent increase in the population.

But as the Chancellor pointed out, a mere ³⁹⁶ increase in population does not prove a change in the character of the neighborhood to justify another type of zoning. See Didlake v. Poteet, 228 Md. 588, 591 . It was also argued that because of the increase in population a need for additional shopping facilities was demonstrated. But there was precise testimony that shopping facilities in the neighborhood were more than adequate, and the testimony as to public need was based upon general conclusions from population figures that were not even put in evidence.

The protestants argued, with some force, that the increase in shopping facilities and service stations in the area defined exceeded the increase in population. The Board made no finding of fact on this point but only a general finding that ‘conditions have changed’.” In 1969 the County Board of Appeals granted precisely the same changes in classifications to permit the filling station and the shopping center that the Commissioners had granted in 1962. Judge Beardmore set aside the action again, saying: “[T]his court does not feel that the [burden] has been met by the applicant in this case. The requested reclassifications are not substantiated by the requisite changes in the character of the neighborhood.

If anything, the neighborhood has become more residential since 1962.” Judge Bruñe for the Court found in Whittle v. Bd. of Zoning Appeals, 211 Md. 36, 45 , that the doctrine of res judicata applied to the decision of a court in a zoning appeal, saying: “It is our view that * * * if there have been substantial changes in fact and circumstances between the first case and the second, the doctrine of res judicata would not prevent the granting of the special permit [for a funeral ³⁹⁷ home on York Road in Baltimore County] sought by the appellees.” The changes in the circumstances upon which the appellees relied in Whittle were summarized in the opinion as follows: (1) increased commercialization in the area; (2) increased population; (3) decreased neighborhood opposition; and (4) additional conditions attached to the grant of the special permit. The Court in Whittle held that the construction of a new stone church to replace a wooden one and the addition of a filling station in an area already commercial and containing two such stations did not “show any substantial change or increase in commercialization between 1949 and 1954”; that increase in population had been urged in the first case; that zoning cannot be made to depend on a plebiscite of neighbors; and that the matter of the more stringent conditions had no significance. In Woodlawn Ass’n v. Board, 241 Md. 187, 199 , we reaffirmed the holdings of Whittle that there must be significant and substantial change in the character of the neighborhood or such a change in the applicable law if the second judicial decision is not to be the same as the first, and indicated the pragmatic test of significance to be whether the properties relied on as changes would “if developed in actual use under their new classifications, have any real effect upon or make any real change in the character