Miller v. Abrahams

McWilliams, J., delivered the opinion of the Court. This is indeed a twice-told tale. The first telling will be found in Miller v. Abrahams, 239 Md. 263 (1965). In this, the second telling, the parties are the same; the property is the same; the same reclassification is being sought; the Zoning Commissioner again denied the petition; the Board of Appeals repeated its reversal of the Commissioner; the circuit court once more affirmed the action of the Board of Appeals; and, as we did before, we shall reverse the order of the trial court.

In March 1962 the appellee (Abrahams) paid $46,000 for a 9.1967 acre tract of R-6 (Residential, 6000 square feet minimum) land on the north side of Old Court Road in the Second Election District of Baltimore County, about midway between Liberty Road and Reisterstown Road. For some months before Abrahams bought the property the Planning Board had been engaged in the preparation of a preliminary map delineating the recommendations it proposed to make to the County Council for the impending Comprehensive Rezoning of the Western Planning Area. As shown on that map, Old Court Road was relocated so as to eliminate a “dog-leg” and widened from 16 feet to 60 feet. As relocated Old Court Road bisected the 9.1967 acre tract.

The zoning classification indicated on the map for the 5.2 acre portion on the north side of the road was B-L (Business-Local). The portion ¹²⁸ on the south side was itself bisected by the proposed extension of Rolling Road which, as shown, would intersect relocated Old Court Road. Abrahams was aware of all this and there is no doubt that, in deciding to acquire the property, he found it quite persuasive. The Council, however, rejected the Planning Board’s zoning recommendation and when, on 15 November 1962, it adopted the ■comprehensive zoning map the R-6 classification was continued.

Two months later Abrahams sought the reclassification of the 5.2 acre parcel to B-L claiming original mistake. The details of his unsuccessful campaign will be found in Miller v. Abrahams, supra. In May 1967 Abrahams embarked on another sortie to obtain the B-L classification, this time claiming change in the character of the neighborhood. The Zoning Commissioner denied his petition; the Board of Appeals reversed the Commissioner ; the court below affirmed the Board; and here we all are again.

It is conceded that the only issue before us is whether Abrahams has produced evidence of a change in the character of the neighborhood sufficient to justify, i.e., make fairly debatable, a reclassification from R-6 to B-L. If not conceded, at least no one disagrees that the area between Liberty Road and Reisterstown Road, in the vicinity of the Abrahams property, has been and is now ■devoted almost exclusively to residential use. About the only exception is a service station at Old Court Road and Church Lane, a mile or so from the Abrahams property. Newly constructed Old Court Junior High School and a $300,000' church are on the south side of Old Court Road, now 60 feet wide and built in the precise location shown ■on the 1962 map. The appellant (Miller) still lives on the five acre tract adjoining Abrahams’ property to the west.

The evidence of change to which Abrahams seems to attach the greatest significance is the increase, since 1962, in population in the vicinity of his property. A claim of 11,000 is made; this, to be sure, is an obvious exaggeration. There can be no doubt, however, that a number of people have moved into the neighborhood but, as the ¹²⁹ trial judge, Maguire, J., observed, “the testimony seems unable to narrow the area in which the increase occurred beyond the second district in general,” an area of about 60 square miles. We have held, of course, that “a mere increase in population does not prove a change in the character of the neighborhood to justify another type of zoning.” County Commissioners v. Fairwinds Beach Club, 230 Md. 569, 572 (1963).

By way of riposte Abrahams quotes from the opinion of Judge Barnes, who spoke for the Court in Bosley v. Hospital for Consumptives, 246 Md. 197, 204 (1967). The excerpt is as follows: “The substantial development of housing units and the concurrent growth in population could reasonably lead to need for additional commercial zoning in the area to supply the wants of the increased population.” (Emphasis ours.) He buttresses the excerpt quoted above with a quotation from Cassel v. City of Baltimore, 195 Md. 348, 355-56 (1950) : “On the other hand, it has been decided that a use permitted in a