Holy Trinity Russian Independent Orthodox Church v. State Roads Commission

McWilliams, J., delivered the opinion of the Court. ⁴⁰⁸ To provide a portion of the right of way required for Interstate Route 95 (the expressway) appellee (the commission) was obliged to acquire 7.53 acres of appellant’s land in Howard County. Dissatisfied with the award ($17,500) of the condemnation jury, appellant (the church) wants us to reverse the judgment and remand the case to be tried again so that, perchance, a higher figure may be forthcoming. We have found in the record nothing which would justify our doing so. The church is located on Fairmount Avenue in East Baltimore.

The neighborhood, according to Father Champion, the pastor, is “very depressed” and the buildings (church and rectory) are now “in the state of falling apart.” Only 3 or 4 of the 187 families constituting the congregation live in the neighborhood. The rest are scattered throughout the city. After the church’s cemetery had been taken by the city for the construction of Friendship International Airport the church, in 1947, bought a 71.6 acre tract on the north side of Eawyer’s Hill Road near Elkridge in Howard County. The road frontage was interrupted by a 7 acre tract, about 600 feet deep, which had been sold off prior to 1947.

The frontage to the west of the 7 acre tract was about 330 feet; to the east it was 545 feet. The remains of about 300 persons were removed from Friendship and reinterred in the 10 acres (of the 71.6 acres) that had been set aside as a graveyard. At the time of trial there were 2181 lots in the graveyard, 600 of which were occupied (including the 300 from Friendship). There was testimony that there were about 40 lots outside of the 10 acres.

A chapel and recreational facilities were built and the eventual transfer of all church activities to the property has been under consideration. Funeral services are held in the chapel and in the warmer weather regular Sunday services are held either in the chapel or outside in “the cathedral garden.” Roadways, driveways and a children’s playground were installed. There has been talk of a swimming pool and a rectory. The first comprehensive zoning ordinance in Howard County was enacted in 1948.

The church property subsequently was zoned R-20 (residential, 20,000 sq. ft. minimum). The regulations do not allow cemeteries in R-20 districts without a special permit. Section 19.04 reads as follows: ⁴⁰⁹ “The Board (of Zoning Appeals) may permit additions to existing cemeteries in any District and new cemeteries in the R-90 to R-201 Districts, provided adequate provisions, satisfactory to the Board and legally binding upon the operation of any cemetery, requiring perpetual care of such cemeteries, shall be filed with the Board before such use is approved. Entrances and exits to and from Cemeteries shall be clearly marked and the location of such exits and entrances shall be approved by the Board only after a thorough study of traffic conditions in the neighborhood.” The church’s non-conforming use is governed by Section 20 of the regulations which, in part, are as follows: “20.01 Any use which now legally exists and does not comply with the regulations of the district in which it is situated shall be known as a non-conforming use.

Such use shall be confined to that part of a building or the extent of land actually tised at the time of the passage of these regulations, except as hereinafter provided. “20.02 If a non-conforming use is changed to a use of a higher classification it may not thereafter be changed to a use of a lower classification. “20.03 A non-conforming use may not be changed to a use of the same classification unless approved by the Board of Zoning Appeals, as provided in Section 30 and subject to the limitations, guides and standards as provided in Section 31. “20.04 A non-conforming use may not be extended, increased in sise or changed in design and buildings may not be erected or extended on land used as a nonconforming use unless approved by the Board of Zoning Appeals, as provided in Section 30 and subject to the limitations, guides and standards as provided in Section 31.” * * * “20.06 Whether a non-conforming use exists or whether a non-conforming use has been abandoned shall ⁴¹⁰ be a question of fact and shall be determined by the Board of Zoning Appeals after a public notice and hearing in accordance with rules of the Board.” (Emphases supplied.) The expressway will be generally parallel to and about mile northwest of the Washington Boulevard (U.S. Route 1). It will also be generally parallel to and about 200 to 225 feet to the northwest of Lawyer’s Hill Road. The land taken from the church was described as “low land with a stream running” through 3 “swales and natural water courses.” John A. Jean, the commission’s real estate expert, testified he “couldn’t conceive anybody burying anyone there.” After the taking and the construction of the expressway the church will have 2 lots, 2.11 acres and 1.71 acres respectively, with the same frontage as before on Lawyer’s Hill Road, both running back 200 feet, more or less, to the southeast edge of the expressway to which, of course, there will be no access from either of the 2 lots. Access to Lawyer’s Hill Road from the church’s remaining 60.32 acres will be no longer possible, and access to the expressway itself will be denied, but the commission will provide a service road running along the northwest side of the expressway to Montgomery Road, a distance of 1000 feet.

The church property will have over 1300 feet of frontage on the service road and access thereto at any point, subject only to the commission’s regulations. At the trial before Mayfield, J., and a jury on 28 and 29 November 1966 the commission produced Mr. Jean whose qualifications were not challenged by the church. In his opinion, he said, the highest and best use of the two parcels (6.04 acres and 3.54 acres) fronting on Lawyer’s Hill Road “would be residential home sites, small estate” and that the remaining 60.32 acres to the north of the taking “would be cemetery with recreational uses.” Since the value of the remaining 60.32 acres would not, in his opinion, be diminished by the taking, his testimony was confined to the damages arising out of the taking of parts of the two lots fronting on the road to which he assigned a value of $1800 per acre. After allowing for the destruction of a stone gate, some paving and other minor items he “rounded out” his appraisal to $13,300. ⁴¹¹ Mr. Jean, in support of his $1800 figure, cited sales of neighboring properties he considered comparable.

The church objected to this testimony because the properties were not devoted to cemetery use. The objection was overruled. The church produced Peter Uisowsky who said he was president of its governing body. He was not permitted to say what were the “future plans” of the church for “further improvement to the cemetery.” When asked what was the sale price of the lots he replied that a single “burial plot sells for $156.” After he had answered the question the commission objected and the trial judge indicated he would refuse to allow any further testimony on the sale price of the lots but there was no motion to strike the testimony from the record or to instruct the jury to disregard it.

He testified, without objection, that the entire property was worth $400,000 and that the value of the land taken by the commission was $59,650. The court did not permit him to testify in respect of lot values but the record shows that he said a lot large enough for 6 graves sold for $306. The commission, as before, objected after the statement was made but there was no motion to strike or to instruct the jury to disregard it. The church produced as its expert real estate witness William S. Hanna, whose qualifications were not challenged.

He said the land was “used primarily as a church property, with a graveyard, with the chapel, [and] recreational facilities for * * * [the] congregation.” Mr. Hanna valued the part taken by the commission at $1500 per acre, citing in support thereof “land in this area [which] has sold for $1500 [to $2000] an acre.” He made no attempt to classify the land taken as being a part of a cemetery or suitable for cemetery