Pahl v. County Board of Appeals

Marbury, j., delivered the opinion of the Court. In this case, neighboring property owners appealed from an order of the Circuit Court for Baltimore County affirming the action of the County Board of Appeals in granting an application for the rezoning of a tract of approximately eleven acres of land in the Liberty Road area of the Second Election District of Baltimore County from R-6 to R-A. The R-6 zone in Baltimore County is for one or two-family residential use, with ²⁹⁶ an area of 6,000 square feet for a one-family dwelling and of 10,000 square feet for a two-family dwelling. The R-A zone is for residential use as apartments. The original application for reclassification of the subject tract was filed August 23, 1962, which alleged as the sole ground for reclassification error in the comprehensive zoning map.

This application was denied by the Zoning Commissioner who found that there was no showing of error committed by the Baltimore County Council in the adoption of the zoning map. From this order, an appeal was taken to the County Board of Appeals of Baltimore County; and on August 13, 1963, the Board, with two members sitting, granted the reclassification. On September 6, 1963, a petition and order for appeal was filed by the protestants in the Circuit Court for Baltimore County. Thereafter, on September 11, the Board notified all parties of the filing of this petition and order, but no answer or petition to intervene was filed by the applicants.

The case was heard by Judge Turn-bull on April 9, 1964, where objection was made by counsel for the protestants to hearing argument. This objection was overruled and the court below affirmed the order of the County Board of Appeals. The property here in question is roughly rectangular in shape. Using Liberty Road as a true east-west thoroughfare, the tract lies to the north of Hilmar Road at a distance of some 1330 feet north of Liberty Road.

Hilmar Road to the south of the subject tract (where some of the protestants own property) is developed on both sides with individual homes ranging in value from $15,000 to $25,000. To the west of the property in question, there is a similar neighborhood street known as Clifmar Road. Approximately 300 feet to the north of the subject property is undeveloped land zoned R-6 which is traversed by a stream known as the Scotts Level Branch and where is located a Baltimore County flood control area. To the east of the property is undeveloped land zoned R-A at the time of the adoption of the comprehensive rezoning map by the County Council on November 15, 1962.

Prior to the adoption of this zoning map, both the subject property and the tract to the east had been recommended for R-6 zoning by the Planning Department of Baltimore County. However, the Baltimore County ²⁹⁷ Council rejected this recommendation for the tract to the east. It is significant to note here that from an examination of the record, the planning staff was aware of this change in zoning but did not feel that this was a legitimate reason to change the classification of the subject property. The appellants on this appeal contend that the applicants in seeking reclassification did not meet the heavy burden of proof required of them to establish that the comprehensive rezoning map was erroneous.

We agree. Under the well established rule in Maryland, “* * * there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or in the comprehensive rezoning or else of a substantial change in conditions.” Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 269-70 , 192 A. 2d 502 . See also Greenblatt v. Toney Schloss, 235 Md. 9 , 200 A. 2d 70 .

In the case before us, three witnesses were produced below to support the claim of error. The property owner, Carl Julio, and a surveyor, Allan Evans, who was not an engineer, testified that the development of the property within the R-6 classification was not economically feasible by reason of its topography and rock