Pistorio v. Zoning Board

McWilliams, J., delivered the opinion of the Court. In this Howard County zoning case the locale is a four mile stretch of the Baltimore-Washington Boulevard, U. S. Route 1 (the road), between West Elkridge and Waterloo. The realty with which we shall be concerned ⁵⁶⁰ is a 28.4 acre tract (the property) lying 200 feet back from the northwest side of the road. The Zoning Board (Board) denied the application of the appellant (Pistorio) to reclassify the property from R-12 (Residential) to M-l (Industrial).

The trial judge, Mayfield, J., affirmed the action of the Board and from his order Pistorio has noted this appeal. At the outset some general conditions should be noted.The road lies between the recently constructed Interstate Route 95 (1-95) and the Washington branch of the Baltimore and Ohio Railroad. 1-95 is about one-half mile to the northwest and the railroad is about one-half mile to the southeast. When the area was comprehensively zoned in 1948 land on both sides of the road to a depth of 200 feet was placed in the Commercial A classification. When the area was comprehensively rezoned in 1954 the 200 foot strips were changed from Commercial A to M-l and, southwest of the property, they were increased in depth to 300 feet.

No change was made in respect of the M-l strips on each side of the road when the area was comprehensively rezoned in 1961 but the 1961 zoning map indicates that about one square mile of land directly opposite the property on the southeast side of the road and extending to the railroad had been reclassified M-2 (Heavy Industrial). The map also shows that several large areas on the northwest side of the road and running to 1-95 had been reclassified M-R (Industrial Restricted). The huge appliance park of the General Electric Company is about three miles to the southwest. Bowie v. Board of County Commissioners of Howard County, 253 Md. 602 , 253 A. 2d 727 (1969).

Columbia is about the same distance to the west. There is a four-lane link (Md. Rte 100) between the road and 1-95 about 3,000 feet southwest of the property. Pistorio is the contract purchaser of both the property and the 200 foot M-l strip between the property and the road. The north and northwest sides of the property border on R-12 land; the land on the west side is zoned ⁵⁶¹ R-12 but within 300 feet it becomes M-R; on the northeast side a stream separates the property from land in the RA-1 (Apartments) classification.

The R-12 land, of which the property is a part, was placed in that classification in January 1964, at the request of the Planning Board. The excerpts that follow are from Pistorio’s application for the reclassification: “6a. The present use of the property is that it is improved by two residences and the balance of the land is not being used for anything.” # * * “6c. The requested change from R-20 to M-l is for the - purpose of developing the entire tract (along with the current M-l classification) for those uses permissible under §§ 15.011 and 15.012 et seq., of the Zoning Regulations. “6d.

The Applicant contends that there was a mistake in classifying the property as R-12, as, for all intents and purposes, it lies between U. S. Route 1 and the Interstate 1-95, and is not conducive to residential development. Moreover, the frontage along U. S. Route 1 to a depth of 200 feet cannot be utilized in its present classification of M-l for the reason that subsection 15.022 requires a setback of 50 feet from the highway and § 15.023 requires any building within an M-l District to be 100 feet from the boundary line of a residential district, which would necessarily compress any development within a 50-foot strip within the M-l zone. This matter has been before the Planning Board and the Zoning Board of Howard County on many occa ⁵⁶² sions and the record will show that this was one of the reasons justifying a rezoning of the back portion of the particular tract. “6e. The Applicant contends that there have been many changes in the character of the neighborhood so as to justify the reclassification.

These, in part, are i) Reclassification on December 27, 1966 (Z.B. Case No. 453) of 57.25 acres from R-12 to R-A-l, which property is contiguous to the subject tract; ii) Reclassification on December 8, 1969, (Z.B. Case No. 530) of 12 acres from R-12 to M-l which appears on Tax Map No. 38 and is located on the south side of U. S. Route 1; iii) Reclassification of 23 acres from M-l and R-20 to T-2 (Z.B. Case No. 380) on September 17,1965; iv) Reclassification of 60.3 acres from R-20 to R-A-l (Z.B. Case No. 537) on March 3,1970; v) The installation of public water; vi) The construction of I-95s” * * * “6g. The property is served with public water, and public sewerage will be available this year.” The Planning Board recommended the reclassification to M-l of 24.5 of the 28.4 acres leaving 3.84 acres for use as the stream valley park shown in the 1960 General Plan. Its findings and conclusions were as follows: Findings: 1. The request is not in accordance with the General Plan adopted on July 20,1960. ⁵⁶³ 2.

The property is now bounded by an R-A-l District on the east which has yet to be developed. 3. Public water is available to the property. 4. Public sewer availability is dependent upon future service by the Bureau of Water and Sewer. The property may be able to be served by the present construction program. 5.

The petitioner states that the M-l property is unusable in its present classification. 6. The petitioner does not state the particular use he intends for the property if the zoning is granted. 7. The property will not have direct access to 1-95 and ingress and egress can only be by way of U.S. Route 1. Sight distance to the east is somewhat limited for M-l use. 8.

The area is presently zoned R-12 and could not be buffered from the existing M-R Zone to the west without enormous expenditures. 9. The property is bounded on the east by a significant stream valley which is partially wooded. The 1960 General Plan recommends that the stream valley be preserved as part of a stream valley park. 10. A wide strip for park reservation should be provided on the east of the subject property to preserve the stream and to buffer the future R-A-l (Apartments) from any industrial activity. 11.

There have been numerous changes of zoning along U. S. Route 1 since 1961, to the M-l District, in order to increase the depth of the existing M-l “strip” zone area for improved industrial development. Near the subject property, some of the Zoning Board decisions reflecting the M-l changes are BCC Cases 307 [1962], 403 [1965], 427 ⁵⁶⁴ [1965], 458 [1967], 464 [1967], 504 [1968] and 530 [1969]. (Emphasis added.) Conclusions: 1. There have been numerous zoning changes along U. S. Route One in the vicinity of the property since 1961, which increased the depth of the existing M-l “strip” zone to allow better utilization of the industrial land. 2.

The existing R-A-l (apartment zone), immediately east of the subject property should be protected by a buffer area from the proposed M-l District and the proposed stream valley park should be preserved for this purpose from any land development. 3. The Planning Board believes that the reclassification to the M-l District is the best use of the property if the area immediately adjacent to the stream is preserved by not changing the zoning from R-12 to M-l for the area within 100 feet of the eastern property line of the property. Therefore, approximately 24.5 acres out of 28.4 acres are recommended for reclassification to the M-l District. The application came on for a hearing before the Zoning Board in early March 1971.

Pistorio produced a composite map, made up of Zoning Maps 37, 38 and 43, showing, in various colors, changes in zoning made since the comprehensive rezoning of 1961. Included were the seven changes listed in the findings of the Planning Board and three of the changes cited by Pistorio in his application. Pistorio testified in respect of the change in the character of the neighborhood effected by these rezonings and he emphasized the completion of 1-95 and its nearby interchange with Maryland Route 100. He spoke at length of the virtual impossibility of utilizing for light indus ⁵⁶⁵ trial purposes the 200 foot strip of M-l land between the property and the highway.

He discussed the availability of water and the imminence of access to public sewers. He conceded the wisdom of excluding the 3.84 acre strip along the stream park; he said he was “willing to comply with it.” Charles Wynn, the first of the two opposing witnesses, farms about ten acres between the property and 1-95. The thrust of his testimony is best perceived by the excerpts that follow: “Q. You don’t know what effect this would have? A. No, I don’t. “Q. Are you objecting to the case, this zoning?

A. I think so. "Q. Are you against it? A. I think so. I think so.

What about if the factories comes in? We’d be hemmed in.” • * * “Q. In industrial zoning, they