Pattey v. Board of County Commissioners

Levine, J., delivered the opinion of the Court. A large number of Worcester County residents bring this appeal from a circuit court decision affirming a zoning reclassification of 1870 acres in the Fourth Election District of that county. The county commissioners, who approved the zoning application, and the applicant, Chincoteague Bay Limited Partnership, are the appellees; appellants appeared as protestants at the hearing before the county commissioners. The property sought to be rezoned actually belongs to a total of some sixteen persons with whom the applicant has entered into contracts of purchase.

The land is described generally as bounded by Chincoteague Bay on the east, Langmaid Road on the north, Harmon Landing Road on the south, and Basketswitch Road on the west. It is some seventeen miles south of Ocean City by road, and is separated from Assateague Island by the Bay. Most of it lies in the A-l (agricultural) district with the portion closest to the Bay being zoned C-l (conservation) district. Under the county’s zoning ordinance, initially adopted in 1965, minimum lots of one acre are required in the A-l district.

The conservation district, as that name would suggest, is restricted to summer cottages and trailers on lots of at least ³⁵⁵ two acres in size. The zoning application sought the following classifications: 332 acres 1,018 acres 409 acres 80 acres 31 acres 1,870 acres R-2 (urban residential) R-3 (apartment district) R-4 (hotel district) R-5 (general residence district) B-l (neighborhood business) The zoning ordinance requires minimum lot sizes of 7,500 square feet in the R-2 classification and 5,000 in the other categories. As we have indicated, zoning was introduced to Worcester County by the enactment of an ordinance in 1965. This action was accompanied by the adoption of an original comprehensive zoning map for the entire county.

Although a land use plan (the Plan) was not promulgated until the following year, it was preceded, as were the 1965 actions, by the establishment of a planning commission and the employment of a zoning consultant, Julius Tarrant (Tarrant), who conducted a thorough study leading to the production and ultimate adoption of the Plan. The Plan indicated that the area in which the subject property is located should ultimately be the site of “non-urban residential development.” It was envisioned that this category would be utilized in the following manner: “Non-Urban Residential Areas. These include both existing and projected developments of a primarily single-family residential nature, at such densities as will not require central water or sewer systems. Not more than 2 dwellings per gross acre can be permitted safely where individual wells and septic tanks must be relied upon.

The average density more likely will be around 1 or IV2 dwellings per acre, after allowance for the necessary roads, streets, odd-shaped lots, and waste areas. Not included in this designation are the rural non-farm dwellings, existing or future, which are ³⁵⁶ and will continue to be scattered generally throughout the rural parts of the county, on larger sites and independent of any community facilities. The non-urban residential areas are intended primarily for the large-lot subdivisions where roads or streets would be provided, along with incidental churches, playgrounds, community houses, and other facilities associated with residential areas and not of a commercial nature.” (emphasis added and omitted). The zoning application, filed in 1972, sought the classifications listed above on the sole ground that the subject property “has changed in character due to recent development programs in the County such as Ocean Pines”; furthermore, it was alleged, “[t]he County’s future land use map, in fact, indicates that this tract should be used for Residential purposes.” The application was initially referred to the Worcester County Planning Commission which, after noting that the Plan projected the area “as a potential site for non-urban residential type development,” recommended that the application be approved subject to certain enumerated conditions.

The thrust of those conditions was that the density of the area for which R-3 (apartment) zoning was recommended, be maintained at the R-2 (urban residential) level of four dwelling units per acre and minimum lot sizes of 7500 square feet. On June 6, 1972, the matter was heard by the county commissioners. At that hearing, the principal witness for the applicant was Calvin Burns who had also signed the application as its agent. He is a mechanical and civil engineer and had been the consulting engineer for the Ocean Pines development, a planned community near Ocean City.

One other witness for the applicant was a zoning inspector who, when asked whether he was not of the opinion “that a mistake’occurred [in the Plan],” replied instead, “I think the Planning Commission was somewhat foresighted when they anticipated that this land, eventually, in twenty years would probably be subject to residential development.” The two remaining witnesses for the applicant, Mr. Jerry Wolman, ³⁵⁷ its general partner, and a Mr. Morris of the planning commission, added no testimony of significant quality. Many of the protestants also presented their views in opposition to the application. A week later, after receiving a letter from the applicant accepting the conditions recommended by the planning commission, the county commissioners voted unanimously to approve the application. This decision was announced in the form of a “release” in which it was found that there had been: “. . . a sufficient change in the area of Worcester County to meet these standards.

Development of Assateague Island’s Federal and State Parks has brought about a tremendous influx of vacationers with very little overnight accommodations for these people. The growth of the Tenth Election District (Ocean City) has caused a tremendous impact on the outlying area. . . .” On September 15, 1972, three months after the application had been approved and two months after that decision had been appealed to the circuit court, the county commissioners issued a document called “HARBOR TOWN REZONING — FINDINGS OF FACTS.” That paper purported to amplify rather extensively the grounds for approval of the rezoning application. The county commissioners concluded that there had been a substantial change “in the character of the neighborhood where the property is located since the promulgation of the original comprehensive land use plan.” (emphasis added). They based their conclusion upon these findings: 1.

Increased development had occurred elsewhere in the county, especially in the Ocean City area, including the Ocean Pines community. 2. That the newly built sewage treatment plant at the Town of Newark had sufficient reserve capacity to serve the applicant’s needs for four or five years; thereafter, its own “self-contained” treatment system would be in existence. ³⁵⁸ 3. That State Route 113, some two miles to the west of the subject property, was to be improved; and that the applicant had agreed to provide access and interior roadways for its development. 4. The establishment of Assateague Island as a National Seashore Park by the federal government had created a need for overnight accommodations on the mainland — especially in the area of the subject property — since the park is geared primarily to daytime use. 5.

A prior rezoning of property in the area of Porter’s Neck and Cropper’s Island from agricultural and conservation uses to R-l (rural residential). The decision of the county commissioners was appealed to the circuit court. After resolving some preliminary procedural disputes, none of which merits any reference here, the trial court rendered its decision — 106 pages in length — affirming the approval of the rezoning application. We reverse.

In upholding the reclassification, the trial court injected the issue of “mistake” into the case, although previously it had been mentioned only once — in the aborted question referred to earlier in this opinion. In addition, the court also ruled that there was sufficient evidence of “change” to sustain the application. It rested this part of its decision on the availability of the Newark water and sewer system and the “appropriation” of Assateague Island for a National Seashore Park. In their appeal to this Court, appellants present a number of reasons for urging reversal of the decision below, including some which are based on constitutional grounds.

In the view we take of this case, however, we need consider only the question whether the rezoning decision can be sustained in light of the requirement in Maryland Code (1957, 1970 Repl. Vol.) Art. 66B, § 4.05 (a) “that there was a substantial change in the character of the neighborhood where the property is located or that there was a mistake in ³⁵⁹ the existing zoning classification.” The parties are in agreement that the “change-mistake” rule was the controlling standard to be applied by the county commissioners in deciding whether to grant the rezoning application. Since this case involves an attempt to amend an original comprehensive zoning map, it is dominated by the strong presumption of correctness which attaches to such original zoning, Valenzia v. Zoning Board, 270 Md. 478, 483 , 312 A. 2d 277 (1973); Trainer v. Lipchin, 269 Md. 667, 672-73 , 309 A. 2d 471 (1973); Stratakis v. Beauchamp, 268 Md. 643, 652 , 304 A. 2d 244 (1973); Rockville v. Henley, 268 Md. 469, 472 , 302 A. 2d 45 (1973). As we said in Stratakis : . .

To sustain a piecemeal change in circumstances such as those present here, strong evidence of mistake in the original zoning or comprehensive rezoning or evidence of substantial change in the character of the neighborhood must be produced, (citations omitted).” 268 Md. at 652-53 (emphasis in original). The burden of producing such “strong” evidence, as we also noted there, is an onerous one, Trainer v. Lipchin; Stratakis v. Beauchamp, both supra; Cabin John Ltd. v. Montgomery Co., 259 Md. 661, 670 , 271 A. 2d 174 (1970). Mindful of this fundamental principle, we consider this case in light of the “change-mistake” rule, turning first to the trial judge’s determination that the rezoning should be upheld on the basis of “mistake.” I There is considerable doubt, as appellants urge, that the question of “mistake” was properly considered by the circuit court, since evidence on this issue was actually never presented to the county commissioners nor was the question considered by them in approving the application, or by the planning commission in recommending that they do so. As we have already indicated, the “mistake” issue surfaced initially in the trial judge’s decision.

On appeal from a ³⁶⁰ zoning decision of a legislative body, the reviewing court is generally confined to a determination of whether sufficient evidence has been presented at the zoning hearing to make the issues fairly debatable, and may only consider for that purpose evidence which is on the record. Aspen Hill Venture v. Mont. Co., 265 Md. 303, 316-17 , 289 A. 2d 303 (1972); Montgomery Co. Coun. v. Kaslow, 235 Md. 45, 52 , 200 A. 2d 184 (1964); see Suburban v. Rockville Council, 241 Md. 1, 6 , 215 A. 2d 200 (1965). Furthermore, Art. 66B, § 4.05 (a) requires that the legislative body make findings of fact where the effect of its action “is to change the zoning classification.” These requirements are virtually stripped of their significance if, on appeal, the reviewing court may furnish its own grounds for granting the requested classification.

Wholly apart from whether the issue was properly before it, the circuit court erred in ruling that there was sufficient evidence of “mistake” to make that issue fairly debatable. The trial judge purportedly concluded that a “mistake” had been made in the “delineation of the ‘Districts’ upon the official General Zoning Map of Worcester County” as well as the “Official Land Use Plan Map.” It is apparent from his entire opinion, however, that the “mistake” on which he bottomed his decision,