Krieger v. Planning Commission

Henderson, J., delivered the opinion of the Court. This appeal under Art. 14, sec. 168, of the Code of the Public Local Laws of Howard County (1957 ed.) is from an order of the circuit court affirming a decision of the Planning Commission denying approval of a subdivision plan sub ³²² mitted to it by a developer. In May, 1959, the appellant acquired a tract of land of about 140 acres fronting on State Route 103, known as Montgomery Road, an unlimited access highway sixty feet wide. On February 18, 1959, the Planning Commission had adopted a general plan of highways for Howard County pursuant to authority contained in sec. 158 of the local code (sec. 230D of Chapter 424, Acts of 1951).

On this plan that portion of Montgomery Road on which the property of the appellant fronts was designated as a “primary road”, calling for a minimum width of 100 feet. The Commission had previously adopted subdivision regulations pursuant to sec. 163. The appellant’s plan, submitted January 15, 1960, violated the master plan and regulations in several particulars. It did not allow for a width of 100 feet, or 50 feet from the center of the existing Montgomery Road, and the lot areas were not sufficient, excluding the bed of the planned road, to comply with Zoning Regulations § 5 D 1 a (minimum size of lot size in R Districts 20,000 square feet).

Moreover, the lots fronting on Montgomery Road did not provide vehicular access by any of the three methods prescribed for new subdivisions in Subdivision Regulations, I A 6 a, b and c (an access drive, a cul-de-sac, or a parallel street). The appellant contends that the Planning Commission’s refusal to approve his development plan was illegal and arbitrary and deprived him of his property without just compensation in violation of Article III, sec. 40, of the Maryland Constitution and Article 23 of the Declaration of Rights. More specifically, he contends that under the pretext of zoning the Commission is arbitrarily and without payment of just compensation (1) requiring him to lay out lots in excess of the present minimum of 20,000 square feet by excluding a twenty-foot strip along the road and enforcing a fifty-foot setback; (2) depriving him of the use of a twenty-foot strip for the purpose of future widening of the road, which may never take place and which it could not require the State Roads Commission to do in any event; (3) denying him access to the road as it presently exists as a sixty-foot way with access uncontrolled. ³²³ We find nothing in the record to suggest that the Planning Commission acted in bad faith. In adopting a major street plan and subdivision regulations it acted under the authority conferred by secs. 158 and 163 of the local code.

If it could properly take such actions, it was not arbitrary to enforce them by denying approval of a plan which did not conform. In the absence of constitutional objection the power of a municipal corporation to impose reasonable conditions upon the issuance of a permit can hardly be doubted. County Council v. Lee, 219 Md. 209, 216 . As the trial court pointed out, the purpose of these sections was to avoid subdivision and improvement of land in the path of a projected highway or in the path of a projected enlargement of an existing highway.

If the Planning Commission were powerless to require compliance, the whole purpose of planning and zoning, which looks to the future, would be frustrated. The basic constitutional point was decided long ago contrary to the appellant’s contention. Zoning regulations according to a comprehensive plan and in the general public welfare may place restrictions on the use of property even though the restrictions result in serious financial loss to the owner. See Euclid v. Ambler Co., 272 U. S. 365; Anne Arundel County v. Ward, 186 Md. 330, 337 ; Benner v. Tribbitt, 190 Md. 6, 20 .

Of course, the restrictions must be supportable as a proper exercise of police power. For recent cases on the subject, see Walker v. Board of County Com’rs of Talbot County, 208 Md. 72, 90 , cert. denied, 350 U. S. 902 and Grant v. Mayor & C. C. of Baltimore, 212 Md. 301, 314 . For a case dealing with the scope of the planning power, see Mansfield & Swett v. Town of West Orange, 198 Atl. 225 (N. J.). Planning with reference to future streets is no novelty in Maryland.

See Clarks Lane Garden Apts. v. Schloss, 197 Md. 457, 460 . On the other hand, as noted in Congressional School v. State Roads Comm., 218 Md. 236, 241 , there seems to be general agreement among the authorities that zoning cannot be used as a substitute for eminent domain proceedings so as to defeat the constitutional requirement for the payment of just compensation, in the case of a taking of private property for public use, by depressing values and so reducing the ³²⁴ amount of damages to be paid. In that case we found it unnecessary to decide the validity of a zoning