Hewitt v. County Commissioners

⁵² Bruñe, C. J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Baltimore County dismissing a bill of complaint which sought to enjoin the use of certain property for commercial purposes and to require the County Commissioners to restore it to the residential use classification which had been recommended by the Zoning Commissioner. The property consists of two adjoining residentially improved lots totaling approximately 19 acres and lying on the south side of Timonium Road immediately west of the Baltimore-Harrisburg Expressway in the Eighth Election District of Baltimore County. The appellants are neighboring property owners who reside along both sides of Timonium Road west of the Expressway.

Ever since the original zoning of Baltimore County in 1945 the subject properties as well as all of the parcels of land now owned by the appellants have been zoned for residential use (“A” Residential). On March 30, 1955, the County Commissioners of Baltimore County (“County Commissioners”) upon recommendation by the Zoning Commission pursuant to Section 366 (c) of the Code of Public Laws of Baltimore County (1948 Ed.) (§ 532 (c) of the 1955 Ed.) promulgated new zoning regulations and restrictions for the entire County. Accordingly, the Baltimore County Planning Commission (“Planning Commission”) prepared a new map for a large portion of the Eighth Election District proposing the boundaries of the new use districts on the basis of an extensive study of land uses begun in the latter part of 1952. See Huff v. Board of Zoning Appeals of Baltimore County, 214 Md. 48 , 133 A. 2d 83 , and Fuller v. County Commissioners, 214 Md. 168 , 133 A. 2d 397 , for comparatively recent zoning history in Baltimore County.

On the above map or plan, which was thereafter submitted to the Zoning Commissioner, the entire area of fifteen to twenty square miles west of the Baltimore-Harrisburg Expressway bounded on the north by Tufton Avenue and Shawan Road, on the west by Greenspring Avenue and on the south by Seminary Avenue, was recommended for residential zoning. Mr. Malcolm Dill, who was then Director ⁵³ of the Planning Commission, testified, that the Commission could see “no apparent need for commercial zoning west of the Expressway in view of the expected low density development in that extensive area.” On the other hand, substantial areas east of the Expressway in the vicinity of Timonium Road and the subject properties were designated for commercial and industrial uses and are being partly utilized for such purposes at present. The Zoning Commissioner, pursuant to the statute, prepared his preliminary report proposing certain minor changes in the Planning Commission’s map, held a public hearing thereon on August 8, 1955, and on November 17, 1955, submitted his final report with recommendations to the County Commissioners. In this report he concurred in the conclusion of the Planning Commission that all the land to the west of the Expressway should be retained in a residential category, although he recommended that R-20 density be permitted throughout the major portion of a 3,000 foot strip west of the Expressway, which included the Fowble and Gill properties and part of the property of the appellants.

He also recommended a higher density residential classification than that proposed by the Planning Commission for the property then known as “Emerald Acres”, which lies across Timonium Road from the Gill and Fowble tracts. (See Fuller v. County Commissioners, supra.) On December 6, 1955, pursuant to notice duly published the County Commissioners held a public hearing for the announced purpose of hearing “objections and recommendations” with respect to the Zoning Commissioner’s final report and proposed map. At that hearing the suggestion was made for the first time that the subject properties be classified for non-residential uses. Doctor Fowble, owner of the easternmost tract lying next to the Expressway (on a portion of which he had built a substantial residence in 1953) requested that his property be placed in an M. L. zone.

It is not clear from the record as to exactly what classification his neighbor on the west, Mr. Gill, requested; but the trial court inferred from the fact that they were acting in concert that Gill sought a similar treatment for his property, and we understood at ⁵⁴ the argument in this Court that this inference was correct. No evidence was offered at the hearing in support of these requests nor was any objection thereto expressed by any of those present. None of the appellants attended the hearing although they all had at least constructive notice that a hearing would be held on that date. Immediately thereafter, however, some of the appellants filed a protest against any change in classification of the Fowble and Gill properties from that previously proposed and requested an additional hearing by the County Commissioners on the matter.

This request was not granted. Instead, a meeting was held between the County Commissioners and the Zoning Commissioner during which all requests which had been made at the public hearing were further discussed. Thereafter, on December 20, 1955, the County Commissioners approved a new zoning map for a portion of the Eighth Election District of Baltimore County under which the properties owned by Fowble and Gill were carved out of the otherwise exclusively residential area west of the Expressway and classified Business, Local (B.L.). Whether any other changes were made by the County Commissioners as a result of the December, 1955, hearing is not clear and cannot be determined from the map.

It seems that if any others were made, they were of a minor character. No others were shown to have been so made in the immediate area here involved. The appellants attack the action of the County Commissioners on two grounds: (1) that the notice given of the hearing before the Commissioners was not sufficiently worded so as to apprise the public fairly that substantial changes might be made in the zoning map and that a further hearing should have been held on the Fowble and Gill requests; and (2) that the “last minute” change in zoning of the subject properties from residential to Business, Local was arbitrary, capricious, discriminatory, and illegal. With regard to the questions of the sufficiency of the notice and of one hearing only by the County Commissioners, we note at the outset that comprehensive zoning or rezoning requires approval of the County Commissioners (now approval of the County Council which has succeeded to the legislative ⁵⁵ powers of the Commissioners).

County Council of Baltimore County v. Egerton Realty, Inc., 217 Md. 234, 140 A. 2d 510 ; Baltimore County v. Missouri Realty, Inc., 219 Md. 155 , 148 A. 2d 424 ; Charter of Baltimore County, Sec. 306. Under Section 366 (c) of the 1948 Edition of the Baltimore County Code (Sec. 532 (c) of the 1955 Edition), the County Commissioners are empowered “from time to time, upon recommendation by the Zoning Commissioner, to amend, supplement or repeal the regulations or restrictions adopted by them, provided that the Zoning Commissioner shall hold a public hearing or hearings on any proposed change, and the County Commissioners shall follow the same procedure with respect to notice and public hearings as provided for the original regulations and restrictions * * Then follow provisions under which the County Commissioners can delegate to the Zoning Commissioner the power to amend or change the boundaries of zoning districts after a public hearing or hearings, but no amendment or change made by the Zoning Commissioner is to be effective until approved by the County Commissioners. The pertinent provisions of Section 366 (c) relating to notice and hearing by the County Commissioners, governing original zoning and made applicable to rezoning, are as follows: “After the County Commissioners have received the final report [of the Zoning Commissioner], they shall hold a public hearing or hearings thereon, giving at least fifteen days’ notice in a newspaper of general circulation throughout Baltimore County, of the place and time of the beginning of such hearing or hearings.” The published notice of the hearing stated that the Zoning Commissioner had prepared and submitted to the County Commissioners a Final Report with respect to proposed amendments, supplements and changes in the boundaries of the zoning districts within a portion of the Eighth Election District and that the County Commissioners would hold a public hearing on said Final Report at a specified time and place, at which time and place the County Commissioners would “hear objections and recommendations with respect to said Final Report.” The notice also stated that the “Final ⁵⁶ Report consisting of a comprehensive zoning map setting forth in color the proposed amendments, supplements and changes” was on file and open to public inspection at the office of the County Commissioners during specified hours; and the notice described the area covered by the Final Report. We do not think the statutory language could be construed as requiring the County Commissioners to state in advance (what they could hardly know) the exact nature of any action which they might take with regard to matters brought to their attention at the contemplated hearing.

Indeed, it is difficult to see how (without either prejudgment or prophecy) the notice here given could have been much more explicit or informative than it was. The appellants certainly had no right to assume that the legislative body entrusted with the sole power to enact a comprehensive zoning or rezoning ordinance in Baltimore County was bound to adopt the proposals or recommendations submitted by the Zoning Commissioner. County Council of Baltimore County v. Egerton Realty, Inc., supra; Baltimore County v. Missouri Realty, Inc., supra; Vestry of St. Mark’s v. Doub, 219 Md. 387 , 149 A. 2d 779 . The appellants contend, however, that the use of the disjunctive “hearing or hearings” in the statute was intended to require additional hearings with respect to any “substantial changes” or “important alterations” made by the County Commissioners.

No such language is used in Section 366 (c), and we find no basis for reading it into the statute. The choice as to whether to have one hearing or more than one hearing seems to be left to the County Commissioners. A like contention to that here made by the appellants was rejected in Vestry of St. Mark’s v. Doub, supra, and we reach a like decision. As to the absence of a requirement for a legislative hearing (other than such as may be prescribed) see County Council of Baltimore County v. Egerton Realty, Inc., supra; M. & C. C. of Baltimore v. Biermann, 187 Md. 514 , 50 A. 2d 804 .

Cf. Benner v. Tribbitt, 190 Md. 6 , 57 A. 2d 346 (not a zoning case; legislative action by commissioners of a town). The principal question is whether or not the legislative action of the County Commissioners in zoning or rezoning the ⁵⁷ Fowble and Gill properties as Business, Local, was arbitrary, capricious, discriminatory or illegal. Whether the adoption of a new land use map for a large portion of the Eighth Election District constituted original zoning or rezoning, the burden rests upon those attacking the classification of these properties as Business, Local, to show that the action under attack is arbitrary, capricious, discriminatory or illegal.

The burden of overcoming the presumption of validity is a heavy one—heavier in the case of original zoning than in the case of rezoning. Eckes v. Board of Zoning Appeals, 209 Md. 432, 437 , 121 A. 2d 249 (change in classification approved by Board of Zoning Appeals); Walker v. Talbot County, 208 Md. 72, 93 , 116 A. 2d 393 (original zoning by County Commissioners) ; American Oil Co. v. Miller, 204 Md. 32 , 102 A. 2d 727 (rezoning by County Commissioners); Zang & Sons, Builders, Inc. v. Taylor, 203 Md. 628 , 102 A. 2d 723 (rezoning by County Commissioners) ; Fuller v. County Commissioners, supra (adoption by County Commissioners of the same land use map here involved). In Huff v. Board of Zoning Appeals, supra, 214 Md. at p. 52, we said that “[t]he County Commissioners determined in 1954 to rezone the whole of Baltimore County.” In Fuller v. County Commissioners, supra, we did not draw a distinction between zoning and rezoning. In the present case, although the action of the County Commissioners would appear to be (as stated in the Huff case) rezoning, rather than zoning, we think that the same result would be reached in either aspect of the case.

This Court has had occasion in a number of cases to consider the validity of a zoning classification of a relatively small tract which differs from that of a much larger tract of adjacent land. The problem is commonly discussed as one of “spot zoning”. That term has probably acquired some popular connotation of invalidity. If, however, the term is used in a descriptive sense, “spot zoning” may be valid or invalid, depending upon the circumstances of each particular case.

Huff v. Board of Zoning Appeals, supra; Baylis v. City of Baltimore, 219 Md. 164 , 148 A. 2d 429 . As we said ⁵⁸ in the Huff case: “When a zoning ordinance or an amendment puts a small area in a zone different from that of the surrounding area, we have what may be called 'spot zoning’, using the term in a descriptive sense. Such zoning may be invalid or valid. If it is an arbitrary and unreasonable devotion of the small area to a use inconsistent with the uses to which the rest of the district is restricted and made for the sole benefit of the private interests of the owner, it is invalid.

Cassel v. City of Baltimore, 195 Md. 348, 355 . On the other hand, if the zoning of the small parcel is in accord and in harmony with the comprehensive zoning plan and is done for the public good—that is, to serve one or more of the purposes of the enabling statute, and so bears a