Jobar Corp. v. Rodgers Forge Community Ass'n

Prescott, J., delivered the opinion of the Court. This is a zoning appeal. The Towson Building Company applied for a reclassification of a 6.14 acre tract of land on Stevenson Lane near York Road in the Towson area of Baltimore County, from R-6 (individual or semi-detached homes on lots not less than 10,000 square feet), as it had been zoned in the comprehensive zoning of 1955, to R-A (Residential Apartment). The Jobar Corporation, as contract purchaser, became an additional applicant.

On June 15, 1961, the County Board of Appeals (Board) denied the application, and the applicants appealed to the Circuit Court. On October 22, 1962, that court (Turnbull, J.) ordered the case remanded to the Board for additional testimony. Some protestants filed a motion to strike the remand; ¹¹⁰ after full hearing, Judge Turnbull denied the motion oh March 6,1963. The Board pursuant to the order of remand, took additional testimony on July 25 and August 6, 1963, and granted the application on September 17, 1963.

The protestants appealed; and the Circuit Court (Raine, J.), pursuant to an oral opinion delivered December 18, 1963, reversed the Board’s decision and denied the application, stating “then everybody can see what the Court of Appeals will do with it.” The applicants have appealed. Appellants suggest there are four questions presented in the appeal, but in the view we take of the case, it may be determined by answering the following ones: (1) Was the remand to the Board of Appeals for the taking of additional evidence erroneous; and (2) Should the conclusions of the Board that the rezoning was justified by error in the original zoning and by changes in the character of the neighborhood, have been sustained by the court as at least fairly debatable? I We proceed to a determination of the first question before stating the facts, for if it be decided against the appellants, it will be unnecessary to state, or consider, the testimony taken at the second hearing before the Board. Baltimore County is a chartered county.

Appeals to the Circuit Court from the Board are therefore controlled by Section 604 of the Charter of Baltimore County, Section 501.4 of its Zoning Regulations, and Code (1957), Article 25A, Section 5 (U) (which are almost identical in terms relative to appeals), and not by Code (1957), Article 66B, Section 7 (n). Montgomery County v. Ertter, 233 Md. 414 ; Baltimore County v. Missouri Realty Inc., 219 Md. 155 ; Robertson v. County Board, 210 Md. 190 . These sections, in pertinent part, provide that upon appeal the court shall “have the power to affirm the decision of the Board or, if such decision is not in accordance with law (italics ours), to modify or reverse such decision with or without remanding the case for rehearing as justice may require.” The order passed by Judge Turnbull, on October 22, 1963, ¹¹¹ was an ex parte one remanding the case to the Board for the purpose of taking additional testimony, and he stated the order was “in conformity with [Code (1957)] Art. 66B, Sec. 7 (n) * * Appellees complain that the order should not have been passed without first affording the appellees an opportunity to be heard. And in this contention they are correct.

However, the error became harmless, for some of the protestants filed a motion to strike out the order, and, after a hearing thereon, the court denied the motion, stating that he had carefully considered the record before doing so. The hearing on this motion presented the protestants with an opportunity to present to the court any reasons as to why the order should not have been passed, which they could have presented before it was signed. The appellees also state that Judge Turnbull had no power to pass the order “in conformity with Art. 66B, Sec. 7 (n),” and again they are right. We pointed out above the true sources of authority on appeals to the Circuit Court of this nature.

It, therefore, becomes our duty to determine whether the court had the right to remand under the actual sources of authority, for nearly every judge, on occasion, finds that he is right, but for the “wrong reason.” The question turns upon whether the first decision of the Board was “in accordance with law.” Throughout the first hearing, applicants’ witness Gavrelis attempted to discuss the proposed use (and its effect) of the some 60 acres of the Sheppard Pratt tract obtained by the Greater Baltimore Medical Center (Center), which the appellants proffered to prove was a $10,000,-000 project with architects’ plans and construction drawings and preliminary engineering completed, the sponsors were completely ready for financing (with the exception of $750,000, which was expected to be obtained within two months), and the breaking of ground was imminent. Appellants also offered evidence of the “very well laid plans for the development of [the some 28 acres purchased by] * * * the St. Joseph’s Hospital * * In addition, appellants offered to prove that the county officials had demanded before beginning construction on any apartments (and they had agreed to such demand) a 70 foot right of way over the subject property from Stevenson ¹¹² Dane on the south to the proposed hospital developments on the north. ' The Board refused to consider evidence relative to the above projects because “we have nothing before us to show the building is under construction,” “the Board cannot consider what is going to happen on [the] Sheppard Pratt property,” “maybe Sheppard Pratt has some plans laid out too, but we are not allowed to listen to them.” The Board stated further that “any testimony with regards to projects in the future would have the same objection from counsel, and would be sustained by the Board on the same objection, that such things that are in the future cannot have a bearing on the property at the present time.” In other words, the Board felt that it was limited to a consideration of evidence of the situation existent at the time of the hearing, and no potential, even though imminent, future changes in that situation or future needs of the public could be considered. Our previous decisions do not sustain such a conclusion. Of course, the comprehensive zoning map of 1955 was entitled to a presumption of correctness, and the burden was upon the applicants for reclassification to show an error in the map or a change of conditions in the neighborhood, or both, if they were to be successful.

But in order to show a change in conditions, as was stated by Chief Judge Brune in Rohde v. County Board, 234 Md. 259 , when quoting from Trustees of McDonogh, etc. v. Baltimore County, 221 Md. 550 , the Board was entitled to consider (and therefore the applicants for reclassification were entitled to present) projects that were “ ‘reasonably probable of fruition in the foreseeable future.’ ” And the same rule applies, we think, when an applicant attempts to prove an error in original zoning. The Board, at its first hearing, was too restrictive in not permitting the applicants to produce evidence of the hospital projects which were reasonably probable of fruition in the foreseeable future; hence the Board’s decision was not “in accordance with law,” and the judge was warranted, under the provisions of law mentioned above, in remanding the case for the taking of additional testimony. (In making this ruling, we are not to be understood as holding that the courts, upon appeals, are required to review in detail and pass upon the tech ¹¹³ nical admissibility of all the evidence offered before the Board. The instant case is unusual in that the Board refused to admit, or consider, the crucial matters upon which applicants’ cause depended.) The appellees contend that Robertson v. Board of Appeals, 210 Md. 190 , is controlling, and that Judge Turnbull had no authority to remand the case for further testimony.

That case and the instant one are different. In Robertson , Judge Hammond, for the Court, specifically stated that Judge Woodward had exceeded his power in two ways: “first, he remanded the case without finding an error of law, and second, he substituted his judgment on the facts for that of the Board.” In the instant case, the trial judge did not substitute his judgment for that of the Board on the facts, and he was correct, as we stated above, in finding an error of law. We now state the facts. The property here in question is a heavily wooded triangular parcel, located on the north side of Stevenson Lane, approximately 1000 feet west of York Road.

It fronts 700 feet on Stevenson Lane (which runs east and west), and the western boundary of the property, which with Stevenson Lane forms the right angle of the triangle, extends north approximately 560 feet. The rear of the property closes the triangle from the northwesternmost to the southeasternmost point of the property. There is a small, high, level area consisting of somewhat less than one-third of the tract at the southwest corner, from which plateau the land slopes very sharply, sometime exceeding 15 per cent to the northern and eastern borders. Immediately to the west of the property is a 16 foot alley across from which, at approximately the same grade as the plateau on the subject property, is built Section 11 of the Rodgers Forge development.

This section of Rodgers Forge is “one long area of group homes, divided into three groups of some 20 homes each,” the backs of which face the subject property. Directly adjoining the subject property on the north is a 400 acre tract known as the Sheppard Pratt property. This tract is now the subject of extensive hospital development. In addition to the Sheppard Pratt hospital itself, which has existed for some time, approximately 60 acres of the tract were ¹¹⁴ sold in 1960 to the Greater Baltimore Medical Center, a ten million dollar project formed by the merger of the Hospital for the Women of Maryland and Presbyterian Eye, Ear and Throat Charity Hospital.

Abutting the subject property on the south is Stevenson Lane. In 1955 this was a small twelve to fifteen foot road; in part a private drive. It was not connected to York Road on the east or Bellona Avenue on the west, and in fact, existed only in front of the row houses westerly from the subject property. It was not built in front of the subject property until 1957-58; and in 1955, when the zoning map was adopted, it had not been settled whether Stevenson Lane would ever be extended to connect with York Road and Bellona Avenue.

At present, however, Stevenson Lane is a fully paved forty-two to forty-four foot bituminous concrete road with a seventy to eighty foot right-of-way. It allows fourteen feet for traffic in each direction while cars are parked on both sides. It now extends from York Road, with its public transit facilities, on the east to Bellona Avenue and Charles Street on the west. As a result of the widening and extension, which occurred in 1961 and 1962, Stevenson Lane is now a major traffic artery known as a “connector” or “collector” or “main feeder” road between York Road and Charles Street and Bellona Avenue.

Stevenson Lane funnels traffic between these two major north-south arteries away from the interior streets of residential developments, and is “a major connection between the center of Towson and Charles Street arterial traffic.” Opposite the west end of the subject property on the south side of Stevenson Lane are some row houses and two school sites, one elementary and one junior high. To the west about 1200 feet from the subject property are the Rodgers Forge apartments, built before the comprehensive zoning of 1955. Across Stevenson Lane and opposite the east side of the subject property and lower than the plateau on the side of Stevenson Lane abutting the subject property are five single-family homes, built before any of the group homes in the neighborhood. These homes, a part of the Rodgers Forge development built before Stevenson Lane was developed, were constructed as part of an agreement entered into by James Keelty, the de ¹¹⁵ veloper of Rodgers Forge, in consideration of the withdrawal of objections by persons in the area to the extension of a commercial use of property at Old Trail Road in which Keelty was interested.

This fringe of individual homes is one house deep, and several rows of group homes are built immediately behind (south of) these cottages, so that the single line of cottages “strips out” the group home development on the south side of Stevenson Lane, which is part of the overall group home and apartment development of Rodgers Forge. Beyond the eastern end of the subject property on the south side of Stevenson Lane are two additional cottages filling out the strip of single family homes. To the east of the subject property on the north side of Stevenson Lane is a “finger” of Sheppard Pratt land; there is a sharp slope to a stream which is channeled into a 48 inch storm water pipe. Both the east and west sides of the stream are heavily wooded with willow trees, and the stream lies in a deep valley between the slope downward from the subject property and a hill on the east side going back up to high ground.

On this ground to the east of the subject property are: the Sheppard Pratt land, the two heavily wooded hills, a driveway to a farm house on the Sheppard Pratt property, the stream and “severe drainage course,” and after these barriers an older individual residence development known as Yorktowne. The land separating the subject property from Yorktowne has a minimum width of 105 feet and a maximum of 200 feet. The Yorktowne houses are built with their backs to the stream between Yorktowne and the subject property; and the Yorktowne house fronts all face a circular drive known as Yorktowne Road. Further east to York Road, which is a short distance away, are more single family homes.

The northwest corner of Stevenson Lane and York Road is used in an M-R (Manufacturing-Restricted category); and across the street is a gas station, which was rezoned by petition in 1950. Two land use planners, both called by appellants, testified before the Board of Appeals as to the issues of original error and change of conditions. George E. Gavrelis, Deputy Director ¹¹⁶ of Planning in Baltimore County, who testified at the first hearing before the Board, said in direct examination that in his opinion R-A zoning was proper zoning for the subject property. On cross-examination he testified that R-6 zoning was not an error in 1955, although it was “suspect” and “maybe” erroneous even then, especially in the light of hindsight.

Bernard Willemain testified for appellants before the Board at the second hearing. He had spent five years as the Deputy Director of the Baltimore County Planning Commission and was the draftsman of the Baltimore County Code. He testified that “it is my considered opinion that the map adopted November 14, 1955, zoning the subject property R-6 was in error in regard to that classification.” He gave as some of his reasons: (1) The subject property is in the most concentrated development in the Towson area. There was, in 1955, no tract of six or more acres still vacant within at least a two mile radius, except the subject property and the Sheppard Pratt complex.

The County Commissioners erred in failing to take into account the need for additional apartments in this area and to make available for such use the suitable tracts, which were limited to the subject property and the Sheppard Pratt complex. (2) The Baltimore County zoning authorities failed to give proper consideration to the potential of the Sheppard Pratt property, which was bound to be developed much more intensively than R-20, which it was zoned in 1955, and to give proper weight to the fact that the subject property is more closely oriented to the Sheppard Pratt property than to any other land in the area. The County Planning Commission in 1955 took into account both the need for apartments in the area and the inevitable intensive development of Sheppard Pratt by recommending R-A zoning for a portion of the Sheppard Pratt tract; and the R-6 zoning for the subject property was recommended on the basis that the Sheppard Pratt zoning adequately met the need for apartments. However, the County Commissioners, without any studies as to the need for apartments in the area and without any prior public announcement of their intention, removed the R-A classification of the land to the north of the subject prop ¹¹⁷ erty and zoned the Sheppard Pratt complex R-20, without making any adjustment in the R-6 zoning of the subject property.

The R-20 zoning for the extensive land to the north was wrong; and the R-6 zoning of the subject property, based on such R-20 zoning of the adjoining lands to the north was wrong: to assume as part of the comprehensive plan for greater Towson that 400 acres, virtually unoccupied, would remain unimproved, or with no more intensive use than existed in 1955 was “no plan at all,” and the failure to provide for any apartment use in the area beyond the “Title 608” apartments at Rodgers Forge was clearly erroneous. (3) In view of the topography of the subject property, the R-6 zoning denied a reasonable economic use, especially in view of the group homes at the same elevation, the backs of which face the subject property immediately across the 16 foot alley to the west. The line dividing the more intense R-G use from the R-6 zoning of the subject property was based merely on the existing Keelty ownership lines (which is, of course, permissible depending upon circumstances), and not upon proper zoning considerations. A use at least as intensive as R-G should have been permitted to the nearest natural line, namely the stream barrier located in the valley between the subject property and the lands to the east.

Mr. Willemain also thought that the Maryland and Pennsylvania Railroad tracks and trestle served in 1955 (they have since been removed) as “a natural boundary in some regards.” (4) The subject property is, and was, the only vacant land on the north side of Stevenson Lane between York Road and Charles Street, which could provide any road connection between Stevenson Lane and the large tracts to the north. It was inevitable that the Greater Towson development, including the more intensive Sheppard Pratt development would have to have a connection with Stevenson Lane between York Road and Bellona Avenue. The only possible such connection was through the subject property. In fact, as a condition of the approval of any plan for the subject property, the Baltimore County Planning Department required the applicants, over their objection, to provide a 70 foot right-of-way at the east end of ¹¹⁸ the subject property for access from Stevenson Lane to the Sheppard Pratt property, in order to connect with the hospital being constructed directly to the rear of the subject property.

(5) The subject property was particularly suited to satisfyihg the need for apartments which should have been regarded by the zoners in 1955; the property is large enough to be built up as a separate tract, ideally shielded from the surrounding area, and site plans well for apartments — i.e., apartments cover a smaller area, fit well into the site, do not require extensive regrading, and preserve the trees. The evidence before the Board relative to change in the neighborhood included the following. Both Mr. Gavrelis and Mr. Willemain agreed in their testimony that there were sufficient changes in conditions in the area since 1955 to warrant the rezoning. They stated these changes to be: (1) The need for apartments in the area, especially garden apartments, which was not foreseen and provided for in 1955 by the zoning authorities has in fact increased sharply and must be met.

(2) The change in the character of Stevenson Lane, which under the circumstances in this case “perhaps more than any other land use consideration” could affect the character of the immediate neighborhood of the subject property has made Stevenson Lane into a logical separator between the subject property and the fringe of cottages stripping out the row house development on the south side of Stevenson Lane. (3) The intensification of the land uses to the north, particularly the Greater Baltimore Medical Center. Mr. Gavrelis thought this was “the big factor that influences the judgment of myself and the Planning Staff in recommending the granting of applicants’ request.” He and the Staff knew “that with good site planning it [R-A zoning] can blend harmoniously with other types of residential and non-residential land uses. We know that apartments tend to produce less demands than typical row houses for schools, utilities and so forth.

We feel, in relationship to Stevenson Lane, a 70 foot right of way * * * with a fairly close proximity to transit facilities on York Road [the subject property] appears to be a reasonable one for apartment zoning * * Mr. Willemain pointed out that the existing de ¹¹⁹ velopment on three sides of the subject property constituted “only a small part of the area which is going to be developed, and which was considered by this map [of 1955], and which will have a direct bearing on the subject property because the subject property is the contact or connection between the Rodgers Forge development you [the lawyer] have described and the large Sheppard-Pratt property on the north, in addition to the traffic pattern. In my opinion, the subject property is oriented more importantly to the development of the Sheppard-Pratt property, because of the traffic that must be taken through it * * * as compared with the other properties * * * than to those that are already improved with other types of structures.” Mr. Willemain added that he thought there had been an intensification of the uses in the general neighborhood, (which was broader than merely Rodgers Forge itself since the subject property had to be viewed as one of the last remaining vacant tracts strategically located in the entire high density development area. There have been rezonings since 1955 adjacent to York Road, which (he thought) was “an integral part” of the neighborhood, and these establish that the 1955 zoning did not sufficiently provide for the development of this general area of the county. There was abundant evidence to support the Board’s findings that the rezoning in the instant case would not “materially increase population density nor affect adversely any of the conditions of traffic, health, safety, morals or welfare.” The protestants offered but one witness, a real estate expert, who testified that in his opinion R-A zoning for the subject property would lessen the values of properties “in the immediate vicinity,” and have “a minor effect” upon the residences across Stevenson Lane.

The applicants offered another real estate expert, who stated that such zoning for the subject property would have no effect upon property values hr the surrounding properties. After the Board heard and considered the additional evidence adduced at the second hearing in conjunction with that taken at the first, it found that it was “evident that changes have occurred in the vicinity of the subject property since * * * 1955. Noteworthy among those changes is the construction and ¹²⁰ opening of Stevenson Lane, a major boulevard * * The Board also stated Mr. Willemain’s testimony was “extensive,” and the Board was “impressed with the testimony of Mr. Willemain regarding the error which he believes was committed when the Ninth District land use map classified the subject property as R-6.” 1 The reason mentioned in the footnote was only one of those given by Mr. Willemain as to why there was error in the original zoning. The Board went on to point out the difficulties in developing the subject site in its present category due to the sharp topographical changes, and found that applicants’ plan of development “would not materially increase population density nor affect adversely any of the conditions of traffic, health, safety, morals or welfare.” It is obvious that the Board could have been more specific and definite in its findings of fact; however, it is certain that the Board found that there had been changes in the neighborhood and error in the original zoning sufficient to justify the reclassification (its other findings clearly meet the test of being fairly debatable, so it will be unnecessary to discuss them further).

We have stated time after time that it is not the function of the courts to zone or rezone, and the courts will not substitute their judgments for that of the expertise of the zoning officials. It is only where there is no room for reasonable debate or where the record is devoid of substantial, supporting facts that the courts are justified in reversing a decision of the Board, or declaring its actions arbitrary or capricious. See Montgomery County Council v. Scrimgeour, 211 Md. 307 , Temmink v. Board, 212 Md. 6 , ¹²¹ and West Ridge, Inc. v. McNamara, 222 Md. 448, for three of the many Maryland cases so holding. Therefore, we must apply these tests to the evidence produced before the Board in order to determine the case at bar.

After doing so, we are constrained to hold that there were substantial, supporting facts presented to the Board, and its findings on changes in the neighborhood and error in the original zoning were fairly debatable. We begin with a presumption that the rezoning was reasonable and valid. Mettee v. County Commissioners, 212 Md. 357 . This presumption, though less strong in instances of rezoning than in cases of original zoning, is a substantial one genuinely to be accorded by the courts.

Missouri Realty v. Ramer, 216 Md. 442 . In the case at bar, the Deputy Director of Planning and Mr. Willemain who had previously served five years in that capacity, both testified to the public need for apartments in the vicinity of the subject property. They both thought, for reasons stated above (and we shall not repeat them here), that there had been sufficient changes in the neighborhood to justify the reclassification. The Staff of the Planning Department felt likewise, and there is no testimony to the contrary.

We cannot say, with the above testimony of recognized experts in the field of zoning in the record, that the record is devoid of substantial, supporting facts to justify the action of the Board, if it chose, as it obviously did, to accept the opinions of these witnesses. We therefore hold that the evidence before the Board was sufficient to render the question of change in the neighborhood fairly debatable. Cf. Rohde v. County Board, supra.

To hold otherwise would be simply to substitute our judgment for that of the Board. We turn to the question of error in the original zoning. Again, we start off with the same presumption of validity. The Deputy Director of Planning did not consider the R-6 zoning of the subject property in 1955 to be an error in original zoning, although it was “suspect” and “maybe” erroneous then.

Mr. Willemain stated that it was his “considered opinion” that the R-6 zoning was error in the original zoning, and gave his reasons for reaching that conclusion (again we do not repeat them here). Although the above may constitute some conflict in the testimony relative to original zoning, we are unable to conclude ¹²² that this left the record barren of substantial, supporting facts relative thereto. The Board stated that it was “impressed with the testimony of Mr. Willemain regarding the error” in original zoning, and if it decided to accept his opinion for the reasons given by him, we cannot, under our previous holdings, reverse the Board’s action, in the absence of a showing that the acceptance of the opinion was arbitrary and capricious in a legal sense. Cf.

Rohde v. County Board, supra. Consequently, we hold that the question of error in the original zoning was fairly debatable. What we have stated and held above, necessitates a reversal of the order passed below. Order reversed and case remanded for the entry of an order in accordance with the above opinion; appellees to pay the costs.

Hammond, J., filed the following dissenting opinion, in which Henderson and Marbury, JJ., concurred. The world will not cease to revolve, disaster will not have struck, and chaos will not reign if the opinion of the majority becomes the law and the contract purchaser of the property involved happily pays the owner the top dollar for his six acres plus, but I think a most unfortunate disservice will have been done to the law of zoning and to the law of administrative bodies. Moreover, no real harm will result in this case if the garden apartments, rather than individual homes, are built on the subject acreage. But, clearly, this is not the point.

If rezoning can be allowed to stand when the requisites either of original error or substantial change in the neighborhood that this Court has so laboriously and painstakingly established case by case have not been shown, the system rests on sand and each case will stand on an ad hoc basis. The