Lutherville Community Ass'n v. Wingard

Horney, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Baltimore County affirming the action of the County Board of Appeals in reclassifying from R-10 (residence, one family) to R-A (residence, apartment) all but a one hundred foot strip of land along the northern property line on Lincoln Avenue of a 3.97 acre tract of land in Lutherville. On cross-appeals to it from the Zoning Commissioner, the Board granted the requested reclassification after the withdrawal of a request for a special exception to construct a high-rise apartment. The individual appellant, Peter J. Karnoski, is one of a large group of protestants who appeared individually and as members of the Luther-ville Community Association, the corporate appellant. 1 The individual appellees, Robert A. Wingard and Elizabeth W. Win ¹⁶⁵ gard, are the owners of the tract reclassified for garden apartment use.

Lying north of the Baltimore Beltway, the Wingard property is on the southern side of Lincoln Avenue, a twenty-four foot street of which nineteen feet is paved, and abuts (for about fifty feet) the western side of Charles Street Avenue extended (also known as Lutherville Road or Avenue), the paved portion of which terminates approximately seventy-five feet from the property in question. To the north (along Lincoln Avenue) and to the east and south on both sides of Charles Street Avenue extended, there are a number of one family dwellings. To the southwest, adjacent to the Bellona Avenue ramp leading to the Beltway, there is a 3.53 acre tract of land zoned B-R (business, roadside), which, although it is not contiguous to the subject property is, at one point, less than two hundred feet from it. Topographically, the Wingard tract rises from Lincoln Avenue to a crest and then falls sharply off to the south in the direction of Bellona Avenue and the Beltway.

When the comprehensive rezoning map was adopted in 1956, all of the properties (except existing non-conforming uses), surrounding the Wingard tract, as well as that tract, were zoned R-10. No R-A classifications were provided for, nor have any reclassifications for such use been granted in the vicinity of Lutherville north of the Beltway since the adoption of the present land use map. But in 1957, based on a mistake in the comprehensive rezoning, the land now zoned B-R was reclassified from R-10 to permit the erection thereon of commercial buildings for the use of the Sperry Rand Company and the Minnesota Mining and Manufacturing Company. At the hearing before the Board, the protestants presented testimony to the effect that the land sought to be reclassified was topographically suitable for one family dwellings.

But there was also' testimony on behalf of the owners to the effect that the property was particularly suitable for apartments because of its accessibility to the Beltway and the extension of Charles Street Avenue. Other witnesses testified that the development of the tract as planned would constitute a buffer zone between the commercial property and non-conforming uses to the south and west and the R-10 land to the north and east. ¹⁶⁶ There was also evidence tending to show that since there were no present plans for the future extension of Charles Street or Lutherville Avenue, ingress and egress to and from the Wingard tract would have to be by way of Lincoln Avenue and that the building of apartments on the property would necessarily increase the flow of traffic on that narrowly paved street. But there was other evidence to the effect that Charles Street or Lutherville Avenue would be extended in the near future, and that even if it were not, Lincoln Avenue was capable of accommodating the resulting increase of traffic, and that traveling thereon would not be hazardous. With respect to the use of the Wingard tract, the Board, finding that the prior reclassification of the tract situated to the south and west constituted a major change in the immediate area which affected the character of a part (though not all) of the subject property and that the topographical features of the land made it feasible to permit development of garden