Howard County v. Dorsey

MacDaniel, J., delivered the opinion of the Court. Appellee William P. Dorsey is the owner of a parcel of land, 4.76 acres more or less, in the Sixth Election District of Howard County, Maryland. In March 1978, he filed a petition to the Howard County Zoning Board requesting a change of zoning for his property, from R-1.2 (Residential, 12,000 square feet minimum lot size) to M-l (light manufacture). The requested change was opposed by the Howard County Office of Planning and Zoning, the Planning Board of Howard County and several neighboring residents.

Hearing on the petition was held and testimony presented on August 7, 1978. The Zoning Board rendered its decision denying the petition on September 8, 1978. On October 2, 1978, an appeal was taken to the Circuit Court for Howard County (Guy J. Cicone, J., presiding) in accordance with provisions of the Howard County Code. The circuit court heard arguments on April 24, 1979, and, in a Decision and Order dated September 17, 1979, reversed the Zoning Board’s decision.

The circuit court ruled that the decision to zone the property R-12 was in error, and that the Zoning Board’s denial of proper zoning (M-l) was arbitrary and without proper foundation. The court ordered that the present zoning of the property be M-l, and remanded the case to the Zoning Board for proceedings consistent with its decision. Howard County has filed this appeal alleging error in the circuit court’s reversal of the Zoning Board’s decision. We shall affirm the decision of the circuit court.

The 4.76 acre tract of smooth, somewhat graded, mostly undeveloped land lies nearby the Town of Guilford (see Appendix). Looking to the north and then clockwise, it is bordered by Berger Road, Oakland Mills Road, a plant/warehouse and a set of railroad tracks which runs through the northern part of Guilford, and some other warehouses. One dwelling sits on the property, in the northeastern corner; it is rented out. Five other houses sit nearby: one across from the property on the northern side of Berger Road, and four in a line due west from the property ⁶⁹⁴ on the south side of that road.

One of these four houses serves as the offices of a contracting company, and not as a residence. Berger Road, which provides access to all of these houses, is a dead end. The road was cut in half as part of the redevelopment of the area when Columbia, Maryland, was planned. Immediately north of the property, east of the house on the north side of Berger Road, is a parcel of land zoned "New Town,” which currently is being developed by the Howard County Research and Development Corporation to accommodate business or industry of some kind.

Farther to the north lies the Snowden River Parkway, a divided highway and major thoroughfare for Columbia. North of the Parkway stands the Village of Owen Brown, which is part of Columbia. Oakland Mills Road, which abuts the eastern border of the property, runs roughly north to south, abutting the open end of Berger Road and intersecting the Snowden River Parkway. On the southeast corner of the intersection of the Parkway and Oakland Mills Road stands a sign proclaiming "Guilford Industrial Center.” East of the property, across Oakland Mills Road, is a warehouse or plant.

Near this is another sign: "Guilford Industrial Center — East.” Slightly farther south lies a parcel of land under development as another warehouse or plant. Farther to the east of these properties is a parcel belonging to the General Electric Company, known as Appliance Park — East. Immediately south of the Dorsey property run the tracks of the Baltimore and Ohio Railroad. Between the property and the tracks sits the manufacturing plant and warehouse of the Ryland Company, which builds prefabricated houses.

Other warehouses also lie in this vicinity, and together they generate considerable rail and truck traffic. The railroad tracks skirt the northern portion of Guilford; the area contains small and medium-size houses which are much older than those situated in Owen Brown and Columbia, to the north. Finally, to the west of the single house on the north side of Berger Road lies an empty grassed lot designated New ⁶⁹⁵ Town Open Space. And farther to the west, past the dead end of Berger Road, the land slopes downward and leads to a large site of manufacturing and industrial firms, notably Eastern Products Corporation.

In summary, we think the circuit court aptly described the property in its Decision and Order when it wrote: "The situation, as evident from a description of the surrounding properties and their uses, is a parcel of residentially zoned land almost totally surrounded by manufacturing uses and separated from any residential development by a divided highway to the north and railroad tracks to the south. The publicly-declared use of that area, as the signs indicate, is industrial or light manufacturing. Development is continuing for industrial uses for this property. No residential development is occurring in the immediate vicinity of the subject parcel.

It sits alone as a residentially zoned piece of land (along with the small cluster of five houses) while industrial use and development continues around it.” According to the record, the Dorsey property was originally zoned R-20 (Residential, 20,000 square feet minimum lot size). In the mid-1970’s however, the Howard County Office of Planning and Zoning (OPZ) developed a comprehensive rezoning plan, and as a part of which they recommended that the property be reclassified R-12. Appellee opposed this and requested an M-l zone. Nevertheless, in October 1977, the Howard County Council adopted the comprehensive rezoning plan as recommended by the OPZ.

Appellee attacked the comprehensive plan by filing a petition with the Howard County Planning Board in March 1978, requesting an M-l zone for his property. 1 The Planning Board reviewed the petition and the opinion of the OPZ on the matter, and ultimately recommended to the ⁶⁹⁶ Howard County Zoning Board that the petition be denied. We quote from the Planning Board’s recommendation in part, as follows: "The Board notes that the parcel in question is practically surrounded by Industrial Zoning classifications and is of the opinion that the parcel in question probably should have been zoned in such a classification. On the other hand, the zoning authority apparently considered this parcel in its study and review prior to the adoption of the Comprehensive Zoning on October 3, 1977, and chose to classify it in the R-12 District, it previously having been zoned in the R-20 District. The Planning Board’s review of the above cited documentation reveals no evidence of a mistake in the legal sense, in reference to the zoning of this parcel as part of the Comprehensive Zoning Maps adopted October 3, 1977.

The Planning Board also finds no evidence of change in the character of the neighborhood of the subject parcel subsequent to October 3, 1977.” Appellee’s petition and the Planning Board’s recommendation were then forwarded to the Howard County Zoning Board for its decision. 2 In its September 8, 1978, Decision and Order the Zoning Board reviewed the evidence and testimony presented at its August 7, 1978, hearing on ⁶⁹⁷ the petition, and denied appellee’s request after making the following findings of fact and conclusions of law: "1. That the [Zoning] Board had considered the subject parcel in the course of its deliberations in formulating the comprehensive zoning map, a part of the Comprehensive Zoning Plan adopted October 3, 1977, held a specific public hearing thereon and at that time the parcel had been reclassified from an R-20 to an R-12 residential classification. 2. The Board further finds that there was no mistake in placing this parcel in the R-12 zoning classification at that time. 3. The Board agrees with the finding of the Department of Planning and Zoning of Howard County that the proposed zoning change is not in accordance or in harmony with the land use as shown on the Howard County General Plan adopted December 6, 1971, as amended on August 2, 1976.. .. 4.

The Board finds that there was no evidence of change in the character of the neighborhood subsequent to the adoption of the aforesaid amendment to the General Plan of Development of Howard County and subsequent to the adoption of the Comprehensive Zoning Plan of Howard County on October 3, 1977. 5. That a reclassification of the subject property as requested would further isolate a substantial residential area from the Guilford residential neighborhood and would have an adverse effect on other residential property fronting on Berger Road.” In accordance with provisions of the Howard County Code 3 appellee appealed the Zoning Board’s decision to the ⁶⁹⁸ Circuit Court for Howard County, 4 where, after a hearing on April 24,1979, the Zoning Board’s decision was reversed. In his Petition in Support of Appeal appellee alleged, inter alia, that: the decision of the Zoning Board was devoid of any competent, material and substantial evidence, in view of the entire record as submitted; the Zoning Board’s findings were contrary to the evidence presented at the hearing; its decision was so grossly erroneous, when viewed in the light of the evidence produced at the time of the hearing, as to imply bad faith, and that its failure to grant the application as requested denied the appellee all reasonable use of his property and was therefore tantamount to confiscation without compensation. In its September 17,1979, Decision and Order, which was admirably thorough and well-reasoned, the circuit court carefully reviewed the situs of the property, the zoning background and the structure of court review of zoning decisions in Maryland, and made the following findings of fact and conclusions of law.

The court found the evidence insufficient to establish that the Zoning Board’s (or the County Council’s) actions were confiscatory, or so erroneous as to imply bad faith. Nor, in the court’s view, was there any evidence to indicate change in the character of the neighborhood since the enactment of the comprehensive plan. However, the court ruled that the record did establish "mistake” in the council’s 1977 decision to zone the property R-12. The circuit court held that the entire record presented strong and substantial evidence that the council either "failed to take into account pertinent evidence, failed to recognize trends that were reasonably foreseeable, [or] failed to consider the full body of the evidence and to give appropriate weight to that evidence” in reaching its decision.

The court therefore ruled: "[T]hat the zoning of this property in 1977 from R-20 to R-12 was in error; that the issue of the proper zoning of this parcel is not fairly debatable ⁶⁹⁹ and that the appellant has met his burden of demonstrating that the evidence does not substantially support the action of the Board. The denial of proper zoning of this property in 1977 and in the present petition was arbitrary and without proper foundation.” The court ordered that the present zoning of appellee’s property be M-l, that the Zoning Board’s September 8,1978, decision be reversed, and that the case be remanded to the Board for proceedings consistent with the court’s opinion. In this appeal appellants argue, in essence, that the record below contains no strong or substantial evidence of "mistake” in the council’s 1977 decision; and that, under the standard applicable in this case, the council’s decision was "fairly debatable,” and therefore not subject to reversal by the circuit court. Appellants further argue that assuming such mistake was established, nevertheless, the circuit court rezoned the property M-l when it was without power to do so.

We find merit in neither argument. We shall begin to address these issues with observations on the standard of judicial review applicable in cases such as this. The standard, as applied to decisions of administrative agencies in general, and to those of zoning boards in particular, has been stated and restated in many decisions of this Court and the Court of Appeals. Most recently, in Annapolis v. Annapolis Waterfront Co., 284 Md. 383 (1979), the Court of Appeals wrote, at 394-96: "[W]e have held that courts of this state are without power to interfere with 'any exercise of the legislative prerogative within constitutional limits, or with the lawful exercise of administrative authority or discretion.’ However, such administrative discretion does not go unchecked.

The judicial branch of the government ordinarily may, through appeal, the writ of mandamus, by injunction, or otherwise, correct any abuse of discretion by administrative agencies or review ⁷⁰⁰ their actions when arbitrary, illegal, capricious or unreasonable. Heaps v. Cobb, supra, 185 Md. at 379; Dickinson-Tidewater v. Supervisor, supra, 273 Md. at 255; Hecht v. Crook, supra, 184 Md. at 280-81. However, the scope of judicial review of decisions by administrative agencies is narrow, recognizing that board members have expertise in a particular area and ordinarily should be free to exercise their discretion as such. Finney v. Halle, 241 Md. 224 , 216 A.2d 530 (1966).

Accordingly, this Court adheres to the proposition that a reviewing court will not substitute its judgment for that of an administrative board where the issue is fairly debatable and the record contains substantial evidence supporting the administrative decision. E.g., Mont. Co. v. Woodward & Lothrop, 280 Md. 686 , 376 A.2d 483 (1977), cert. denied sub nom. Funger v. Montgomery Co., 434 U.S. 1067 (1978); Agneslane, Inc. v. Lucas, 247 Md. 612 , 233 A.2d 757 (1967).

See also Heath v. M. & C.C. of Baltimore, 187 Md. 296 , 49 A.2d 799 (1946); Oppenheimer, supra, at 209. When reviewing an administrative decision for arbitrariness or capriciousness, a court must first determine whether the question before the agency was fairly debatable. In Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372 (1969), we defined the term 'fairly debatable’: We have made it quite clear that if the issue before the administrative body is 'fairly debatable’, that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body, in the absence of an unconstitutional taking of private property for public use without the payment of just compensation. . . . [emphasis supplied]” (Footnotes and citations omitted). ⁷⁰¹ Or, as this Court stated in Kanfer v. Montgomery County Council, 35 Md. App. 715, 730 (1977), citing Bosley v. Hospital for Consumptives, 246 Md. 197, 204 (1967): "... the appellate court may not substitute its judgment for that of the zoning body and should affirm when the latter’s decision is supported by substantial evidence.” And, lately, in Sedney v. Lloyd, 44 Md. App. 633, 637 (1980), we had occasion to note: "The 'fairly debatable’ test is analogous to the 'clearly erroneous’ standard commonly applied under Md. Rules 886 and 1086. A court must consider all of the evidence before the zoning authority; the decision is 'fairly debatable’ if it is supported by substantial evidence on the record taken as a whole.” (Citations omitted.) In Sedney we cited Board v. Oak Hill Farms, Inc., 232 Md. 274, 283 (1963), wherein the Court of Appeals wrote: "Whether the test of substantial evidence on the entire record or the test of against the weight of all the evidence is followed, the courts have exercised restraint so as not to substitute their judgments for that of the agency and not to choose between equally permissible inferences or make independent determinations of fact, because to do so would be exercising a nonjudicial role.

Rather, they have attempted to decide whether a reasoning mind could reasonably have reached the result the agency reached upon a fair consideration of the fact picture painted by the entire record.” And, as the Court of Appeals stated in County Comm’rs v. Brown, 253 Md. 632, 640 (1969), citing Oak Hill Farms, supra: "[i]n the context of a zoning case, 'substantial evidence’ means 'more than a scintilla’; such evidence 'as a reasonable mind might accept as adequate to support a conclusion’; and 'enough to justify, if the trial were to a jury, a refusal to direct a verdict.’ ” ⁷⁰² In Hoy v. Boyd, 42 Md. App. 527, 533 (1979), we observed: "There is a strong presumption of the correctness of comprehensive rezoning. Consequently, the burden of proving mistake or change is a heavy one. Stratakis v. Beauchamp, 268 Md. 643, 652-3 , 304 A.2d 244 (1973); Boyce v. Sembly, 25 Md. App. 43, 49-50 , 334 A.2d 137 (1975).” Unless this burden is met, a zoning authority’s action must be presumed to remain "fairly debatable,” and the action cannot be attacked on grounds of "mistake,” Cabin John Ltd. v. Montgomery Co., 259 Md. 661, 671-72 (1970). We discussed the concept of zoning "mistake” or "error” at some length in Boyce v. Sembly, 25 Md. App. 43, 50-52 (1975): "[I]t is necessary to understand the inherent nature of the terms 'mistake’ ór 'error’ as they are used in zoning law.

A perusal of cases, particularly those in which a finding of error was upheld, indicates that the presumption of validity accorded to a comprehensive zoning is overcome and error or mistake is established when there is probative evidence to show that the assumptions or premises relied upon by the Council at the time of the comprehensive rezoning were invalid. Error can be established by showing that at the time of the comprehensive zoning the Council failed to take into account then existing facts, or projects or trends which were reasonably foreseeable of fruition in the future, so that the Council’s action was premised initially on a misapprehension. Bonnie View Club v. Glass, 242 Md. 46, 52-53 , 217 A.2d 647, 651 (1966);. Jobar Corp. v. Rodgers Forge Community Ass’n., 236 Md. 106, 112, 116-18, 121-22 , 202 A.2d 612, 615, 617-18, 620-21 (1964); Overton v. County Commissioners, 225 Md. 212, 216-17, 170 A.2d 172, 174-76 (1961); see Rohde v. County Board of Appeals, 234 Md. 259, 267-68 , 199 A.2d 216, 218-19 (1964).

Error or mistake may also be established by showing that events occurring subsequent to the comprehensive zoning have ⁷⁰³ proven that the Council’s initial premises were incorrect. As the Court of Appeals said in Rockville v. Stone, 271 Md. 655, 662 , 319 A.2d 536, 541 (1974): 'On the question of original mistake, this Court has held that when the assumption upon which a particular use is predicated proves, with the passage of time, to be erroneous, this is sufficient to authorize a rezoning.’ See Rohde, supra, at 234 Md. 267 -68, 199 A.2d 220 -21; England v. Rockville, 230 Md. 43, 45-47 , 185 A.2d 378, 379-80 (1962); Pressman v. Baltimore, 222 Md. 330, 338-39 , 160 A.2d 379, 383 (1960); White v. County Board of Appeals, 219 Md. 136, 144 , 148 A.2d 420, 423-24 (1959); cf. Dill v. The Jobar Corp., 242 Md. 16, 20-21, 24 , 217 A.2d 564, 567-68 (1966); Marcus v. Montgomery County Council, 235 Md. 535, 540-41 , 201 A.2d 777, 780 (1964); Offutt v. Board of Zoning Appeals, 204 Md. 551, 558 , 105 A.2d 219, 221-22 (1954); Wakefield v. Kraft, 202 Md. 136, 144-45, 149 , 96 A.2d 27, 30 (1953); Hoffman v. City of Baltimore, 197 Md. 294, 307 , 79 A.2d 367, 373-74 (1951). It is presumed, as part of the presumption of validity accorded comprehensive zoning, that at the time of the adoption of the map the Council had before it and did, in fad, consider all of the relevant facts and circumstances then existing. Thus, in order to establish error based upon a failure to take existing facts or events reasonably foreseeable of fruition into account, it is necessary not only to show the facts that existed at the time of the comprehensive zoning but also which, if any, of those facts were not actually considered by the Council.

This evidentiary burden can be accomplished by showing that specific physical facts were not readily visible or discernible at the time of the comprehensive zoning, Bonnie View Club, supra, at 242 Md. 48 -49, 52, 217 A.2d 649 , 651 ⁷⁰⁴ (mineshaft and subsurface rock formation); by adducing testimony on the part of those preparing the plan that then existing facts were not taken into account, Overton, supra, at 225 Md. 216 -17, 170 A.2d 174 -75 (topography); or by producing evidence that the Council failed to make any provision to accommodate a project, trend or need which it, itself, recognized as existing at the time of the comprehensive zoning, Jobar Corp., supra, at 236 Md. 116 -17, 202 A.2d 617 -18 (need for apartments). See Rohde, supra, at 234 Md. 267 -68, 199 A.2d 221 . Because facts occurring subsequent to a comprehensive zoning were not in existence at the time, and, therefore could not have been considered, there is no necessity to present evidence that such facts were not takén into account by the Council at the time of the comprehensive zoning. Thus, unless there is probative evidence to show that there were then existing facts which the Council, in fact, failed to take into account, or subsequently occurring events which the Council could not have taken into account, the presumption of validity accorded to comprehensive zoning is not overcome and the question of error is not ’fairly debatable.”’ (Footnotes omitted; emphasis added.) With the applicable standard of review, presumptions and burden of proof clearly in mind, we turn to consider the record of the evidence presented.

The evidence and testimony presented at the hearing established the following facts. The Howard County Council adopted a General Plan for the county on December 6,1971. According to the zoning map accompanying the plan, the Dorsey property was zoned R-20, and shown clearly north of, and separate and apart from, the neighborhood of Guilford. The latter’s northern boundary was drawn to coincide with the Baltimore and Ohio Railroad tracks previously described.

The property was shown lying in an area labeled "Special Study South,” which incorporated very large areas ⁷⁰⁵ of industrial, New Town land, including the General Electric plant. In 1973, efforts to rezone residential land within the neighborhood, as well as the general encroachment of surrounding industry, impelled Guilford residents to approach the Community Development Committee (CDC) for help. At CDC’s initiative, OPZ began a pilot area study (later to be known as the Guilford Pilot Study) to determine whether preservation of the Guilford neighborhood made economic sense to the county and, if it did, to propose a plan to achieve that end. As a result