Hoy v. Boyd

Moore, J., delivered the opinion of the Court. At issue in this controversy is the zoning reclassification of approximately 67 acres in the northern portion of the third assessment district of Anne Arundel County from the R2 Residential District to the R1 Residential District (a lower density); and the grant of a special exception to permit a recreational campground on the property. After a hearing pursuant to the Anne Arundel County Zoning Ordinance, the zoning hearing officer issued an Order of denial. Upon appeal by the petitioners to the County Board of Appeals, the applications were granted by a divided vote, one member dissenting.

Upon appeal by the protestants, residents of adjacent Pasadena, Maryland, the Circuit Court for Anne Arundel County (Williams, J.) affirmed the action of the Board of Appeals, finding “fairly debatable” the issue of mistake in the original zoning of the property. The protestants below appeal. For the reasons stated, we reverse. I The 67 acres here involved are located on the south side of Knollview Drive, 1,000 feet north of Bayside Beach Road in the Alpine Beach Subdivision of Anne Arundel County, with approximately 2,000 feet of frontage on the east and west sides of Alpine Beach Road.

The site is partially wooded. The portion to the west side of Alpine Beach Road, somewhat more than one-half the total acreage, contains no structural improvements. The east side has approximately 400 feet of water frontage on the Patapsco River at the point where it enters Chesapeake Bay. This section of the property was used ⁵²⁹ for a number of years as a public bathing beach; and a number of vandalized structures formerly used as beach facilities repose there.

The land area on the eastern boundary of the site fronts, for approximately 1,200 feet, on Boyd Pond. Beyond Boyd Pond is Bayside Beach, the nearest residential community. The appellee, Ralph C. Boyd, became the contract purchaser of the acreage in 1970 but, because of extensive litigation, he did not acquire legal title to the property until January, 1977. Not long thereafter, these applications were filed.

The zoning reclassification was essential because the property was zoned R2 and, under the Anne Arundel County Zoning Ordinance, a commercial recreational campground is permitted by special exception in only the RA and R1 districts. The appellee proposed the installation of approximately 250 campsites which would utilize about one-half of the property, in the area generally west of Alpine Beach Road. The remainder of the property would be used for recreational purposes, including bathing at Alpine Beach and boating at Boyd Pond. The site was included in a comprehensive zoning for the northern portion of the third assessment district which commenced in 1971.

Its somewhat complicated zoning history included six maps, as follows: FIRST: A “suggested map” dated October 4,1971 formulated by the Office of Planning and Zoning, in which the entire property was designated R2. SECOND: A map recommended by the Planning Advisory Board dated June 19, 1972, as a result of "prefiles” 1 before the Board. Again, the site was designated R2. THIRD: A map adopted by the Anne Arundel County Council on October 2, 1972, effective December 21, 1972.

The map split the property, ⁵³⁰ designating the west side of Alpine Beach Road R1 and the east side R2. This was accomplished by Amendment No. 7 of Bill No. 136-72, a legislative enactment which was the subject of a court challenge. In the case of Anne Arundel County v. Moushabek, 269 Md. 419 , 306 A. 2d 517 (1973), it was held that 83 amendments to the bill, adopted by the Council on the day of the enactment of the ordinance, were invalid because no hearing on the amendments had been held as required by Section 307 (d) of the County Charter. The court ruled, however, that the ordinance was severable from the in validly adopted amendments.

FOURTH: A “recommended map” dated May 8, 1973, preliminary to the reinstitution by the Council of the comprehensive zoning process, following the decision of the Court of Appeals in the Moushabek case. The previous R1 and R2 designations were retained for the subject property. FIFTH: A map adopted by the County Council, as part of Bill No. 52-73, on May 8,1973, again showing the site as R1 and R2. This was an emergency bill designed to repeal what remained of Bill No. 136-72, and to re-enact it with the provisions of the 83 amendments stricken by the Court of Appeals in the Moushabek case incorporated directly into the text of the new law.

SIXTH: “Referendum Approved” map, effective November 5,1974, in which the subject property was designated R2 in its entirety. Emergency Bill No. 52-73 was not challenged in the courts as had been Bill No. 136-72. The opponents of the Council’s new ordinance petitioned it to Referendum 2 and, on November 5, 1974, the voters ⁵³¹ of Anne Arundel County decisively rejected Bill No. 52-73. The combined effect of the litigation and the referendum was concisely stated by Judge Levine in Ritchmount Partnership v. Board of Supervisors of Elections for Anne Arundel County: “As a result of our holding in Moushabek , Bill No. 136-72 in its unamended form became the operative law.

It was this version of Bill No. 136-72 that the County Council attempted to repeal by emergency Bill No. 52-73 in July 1973. And consequently it was this unamended version of Bill No. 136-72 which was automatically reinstated after Bill No. 52-73 went down to defeat at the hands of the electorate in 1974.” 3 283 Md. 48, 65 , 388 A. 2d 523 (1978). In the proceedings below, the hearing officer found that no evidence of “change” was introduced and that the property owners’ case became “one of mistake or error alone.” On that issue, he found no evidence of mistake to support a reclassification from R2 to Rl. On appeal, the County Board of Appeals received in evidence a recommendation of the Office of Zoning and Planning in which certain “considerations” concerning “change” and “mistake” factors ⁵³² were set forth.

These included the statement that sewer service was anticipated during the comprehensive zoning process of 1971, to be available by 1981 for the area in which the subject site is located; but that the current sewer map adopted March 7, 1977 designated the area to be served between 1989 and 1997 and, therefore, “the R2 zoning ... is based in part on misapprehension” and the revised projected date “would support a lower residential classification.” The Office concluded therefore that it “would not be adverse to the granting of this application.” The Board’s majority opinion reviewed the testimony of Ralph C. Boyd, one of the owners of the property, Joseph L. Peeler, Jr., a consulting engineer, and Gene E. Floyd, a real estate consultant and appraiser. The testimony of 12 opposing witnesses was also summarized, as was the testimony of Larry Burkins, principal zoning analyst for the Office of Planning and Zoning of the County. In its statement of findings, the majority considered “most significant” the weight given to the availability of public water and sewer in classifying low density residential property and stated that the updating of the sewer map, projecting sewer services for the area in the period 1989 to 1997, supported reclassification of the property to Rl. The majority also wrote: “This board finds that zoning by referendum failed in this case to take into account the unique physical characteristics of this parcel.

This constitutes error sufficient to change from R2 to Rl.” With respect to the request for a special exception, the Board found that the application met the requirements of the County Code and ordered that the special exception to permit a recreational campground be granted subject to specified conditions. The dissenting member expressed the position that the evidence of mistake was insufficient to support the reclassification. Her dissenting opinion stated in part: “a) Although the status of sewer has changed, in effect, a possible error in the Master Plan for sewer does not constitute a mistake in zoning. b) Public sewer is not necessary for the Ra, Rl or ⁵³³ R2 Residential Districts, but is a requirement for R5 Residential Districts (Section 13-306).” (Emphasis added.) The court below, in a written opinion, agreed with the protestants that there was no evidence of change in the neighborhood to justify the zoning reclassification. On the other hand, the court ruled: “It is, however, clear from the record and particularly from those portions of the testimony quoted herein that there was testimony of mistake in the original zoning and that the Board was presented with facts that made the issue of mistake fairly debatable.” (Emphasis added.) It is from this finding that the protestants appeal.

II It is fundamental law in Maryland that to grant a zoning reclassification, the zoning authority must find evidence of mistake in the original zoning or comprehensive rezoning or that there has been substantial change in the character of the neighborhood. 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, 652-53 , 304 A. 2d 244 (1973); Boyce v. Sembly, 25 Md. App. 43, 49-50 , 334 A. 2d 137 (1975).

There is also a presumption of the correctness of piecemeal rezoning but it is “not so potent as the presumptions of comprehensive zoning or rezoning.” Bonnie View Country Club, Inc. v. Glass, 242 Md. 46, 52 , 217 A.2d 647 (1966). The scope of appellate review of zoning reclassifications is also well defined. Simply stated, “it is not the function of the courts to zone or rezone....” Germenko v. County Board of Appeals, 257 Md. 706, 711 , 264 A. 2d 825 (1970). Judicial review is limited to a determination of whether the evidence presented to the zoning authority made the question at issue “fairly debatable.” Offutt v. Board of Zoning Appeals, 204 Md. 551, 562 , 105 A. 2d 219 (1954). ⁵³⁴ Another rudimentary proposition, overlooked in the proceedings below — except by the dissenting member of the Board of Appeals 4 — and by the parties on this appeal, is that there is a vast difference between a master plan for sewer and a comprehensive zoning or rezoning.

As Judge Levine stated for the Court of Appeals in Pattey v. Board of County Commissioners, “a master plan is only a guide and is not to be confused with a comprehensive zoning, zoning map, or zoning classification. [Citations omitted.] It is a ‘mistake’ in the latter, not in the master plan, which may support a rezoning.” (Emphasis added.) 271 Md. 352, 360-61 , 317 A. 2d 142 (1974). In Pattey, a large number of Worcester County residents appealed from a Circuit Court decision affirming zoning reclassifications of 1,870 acres of agricultural and