QUEEN COMMISSIONERS OF QUEEN ANNE'S COUNTY v. Miles

Oppenheimer, J., delivered the opinion of the Court. The substantive issues presented in this appeal are whether the action of the County Commissioners of Queen Anne’s ³⁵⁹ County (the Commissioners), in promulgating as part of its comprehensive zoning ordinance an “R-l” Estate District with a five acre minimum lot size, is constitutional insofar as it affects the property of the appellees and other properties similarly situated; and, if the classification is constitutional, whether the Commissioners’ action is invalid because of arbitrary, unreasonable and discriminatory action in the classification of the property of the appellees and other similar properties as R-l as contrasted with the A-l classifications of other allegedly similar properties in like areas. Queen Anne’s County on the Eastern Shore of Maryland has an area of 373 square miles. Of the 23 counties and the City of Baltimore which constitute the 24 political subdivisions of the State of Maryland, Queen Anne’s County is the fifteenth largest subdivision in terms of land area.

Of the 24 subdivisions, the County is the third smallest subdivision in terms of population, ranking ahead of Calvert and Kent Counties only. On the basis of the 1950-1960 census figures for Maryland, the County had a population of 14,579 in 1950 and of 16,569' in 1960, an increase in population of 1990 persons, or 13.5 percent, during the decade. During the same period, the population of the State increased from 1,343,001 in 1950 to 2,100,689 in 1960, an increase for the decade of 32.3 percent. The estimated population of the County in 1970, according to the U. S. Census of Population Projections, is from 19,900 to 20,600, and in 1980, from 25,000 to 27,000.

According to the U. S. Census definitions of “urban” and “rural”, the entire population of the County is classified as “rural.” The eight incorporated towns in the County in 1960 contained together only approximately 20 percent of the total population; the largest of these towns, Centreville, contained less than 2,000 people. The greatest rate of growth in the County during the decade 1950-1960 was on Kent Island, which is the eastern terminus of the Chesapeake Bay Bridge; the population of the Island during the decade increased by 909 persons, a gain of over 41 percent. The major economic activities of the County include agriculture and seafood catching and processing. The County has a total water frontage of 258 miles.

There are many large land ³⁶⁰ holdings and estates improved by substantial residences, often of historic significance. At the outbreak of the Revolution, Queen Anne’s was one of the most prosperous counties in the State and a number of the large houses throughout the County, still in existence, were built about that time. The tendency then, as in the present day, was to build on the water, which not only afforded more picturesque sites but served as access to water transportation. The abolition of slavery resulted in the erection of a number of small houses in the midst of little clearings, often in proximity to the old Tidewater estates.

Emory, Queen Anne’s County, Maryland, Its Early History and Development, 270, 530-31 (The Maryland Historical Society, 1950). In January, 1961, pursuant to Code (1957) Article 66B, the Commissioners appointed a Planning and Zoning Commission (the Commission) which, with the Commissioners, is an appellant herein. The Commission, composed of men from various parts of the County, employed professional planners, met frequently, consulted numerous State and County agencies and studied the entire County in detail. On the recommendations of the Commission, intervening ordinances and subdivision regulations were adopted by the Commissioners.

In mid-1963, tentative drafts of a comprehensive zoning ordinance and a proposed zoning map were submitted to the Commission and reviewed by it in conjunction with various State agencies. The Commission received the suggestions and advice of interested citizens and civic groups in the County, including the Real Estate Board and the Bar Association. Numerous public meetings were held throughout the County. In April, 1964, the ordinance and map were recommended by the Commission to the Commissioners.

The ordinance and map were adopted by the Commissioners on June 16, 1964, substantially in the form recommended by the Commission. The property of the appellees, known as “Blakeford”, was purchased by them in 1957 from the Whitehall Foundation. Three other farms owned by the Foundation were acquired by the appellees at the same time; two of these farms, referred to as the “Stevens Farm”, were sold virtually simultaneously by the appellees at the time of their acquisition of Blakeford. ³⁶¹ Blakeford in its present form consists of approximately 588 acres; it is located on the east side of the Chester River immediately north of Queenstown Creek and fronts on the Chester River for a distance of 7200 feet and on Queenstown Creek for a distance of 9000 feet. Blakeford was described by one real estate expert “as a property almost in one class by itself, equal to or above any in charm and elegance * * *” The main dwelling, as shown in the exhibits, is a beautiful manor house.

There are eight other residential structures and numerous farm buildings. The improvements include a swimming pool, a greenhouse and over 12 acres of lawn, shrubbery and ornamental plantings. Of the 588 acres, 300 are devoted to a dairy cattle operation conducted by the appellees. The average daily production of milk on the farm in 1964 was 200 gallons, all of which was sold commercially.

The gross revenue derived from the dairy operation in that year was over $58,000; the gross expenses were over $82,000, including some $18,000 for labor. The aggregate investment by the appellees in assets related totally to the farming operation, exclusive of buildings and land, amounts to over $99,000. The appellees repeatedly made objections to the Commissioners and the Commission to the classification of their property within the five acre minimum lot district and made alternate suggestions to the Commissioners which, after consideration, the Commissioners rejected. These proceedings were instituted under the Declaratory Judgment Act, Code (1957) Article 31A, in the Circuit Court for Queen Anne’s County promptly after the adoption of the zoning ordinance and map.

The appellants demurred to the bill of complaint and the demurrer was overruled. After an extensive hearing and the introduction of numerous exhibits, Judge Rollins held that the ordinance was invalid insofar as its provisions related to and affected the appellees’ property and similar properties located in the County in the R-l District. The briefs and arguments on this appeal have been of great help to this Court. I The threshold procedural question is whether the action of the trial court in overruling the appellants’ demurrer to the ³⁶² appellees’ bill of complaint was correct.

The bill of complaint alleged the unconstitutionality of the classification of the appellees’ property, the nature and use of Blakeford, and the irreparable loss because of the severe restrictions upon the use of their property, with supporting reasons for the expected decrease in value. The bill also alleged that the classification is arbitrary and unreasonable, and set forth details as to the similarity of Blakeford and the adjoining Stevens Farm, which is classified as “A-l” Agricultural. The relief prayed was a declaration of the unconstitutionality of the ordinance and an injunction against its enforcement. While the demurrer raised several legal contentions, the only argument relied upon by the appellants in this Court is the appellees’ lack of requisite standing.

This Court has repeatedly held that demurrers should rarely be sustained or bills dismissed without a declaration of the rights of the parties when declaratory judgment relief is prayed. Myers v. Chief of Fire Bureau, 237 Md. 583, 591 , 207 A. 2d 467 (1965), and cases therein cited. Constitutional rights are not to be determined abstractly under the Declaratory Judgment Act or otherwise. Liberto v. State’s Attorney, 223 Md. 356, 361 , 164 A. 2d 719 (1960).

We find that the allegations of the bill are sufficient to show that the appellees’ rights are affected by the ordinance and that they will sustain special damage by its enforcement. Richmark Realty Co. v. Whittlif, 226 Md. 273, 281 , 173 A. 2d 196 (1961), and cases therein cited. See also Case, Declaratory Judgments in Maryland, 6 Md. L. Rev. 221 , 225 (1942). The alleged special damage to the appellees was present, not future, in the immediate effect upon the value of their property.

We agree with the action of the court below in overruling the demurrer. II The first substantive question is whether the zoning ordinance is valid under the enabling act. The ordinance provides for five residential zones, two business and three industrial zones, including an M-O floating zone, one agricultural and one agricultural conservation zone. The A-l Agricultural District permits, inter alia, agriculture, grazing and the usual agri ³⁶³ cultural buildings and structures and single-family and two-family dwellings, with a one acre minimum lot requirement.

For the Residence Districts R-l through R-5, the minimum lot area requirements go from 7,000 square feet in R-5 to five acres in R-l. In the R-l Estate District, the principal permitted uses are single-family dwellings, churches and parish houses, schools and colleges, farms, gardens, estates, forests and private game preserves, and the usual agricultural, grazing, forestry and conservation uses and structures. Certain conditional uses, including country clubs, parks and playgrounds and private airports are permitted with the authorization of the Board of Appeals. There are three R-l Districts, together constituting only 6.7 percent of the land area of the County.

One of the districts is made up of Wye Island, an additional area between the Wye and the Wye East Rivers and the lower end of the peninsula formed by the Wye River and Eastern Bay. Much of this area is contiguous to that area of Talbot County where the zoning ordinance provides, on certain conditions, for an increase in the minimum building lot area to five acres. The two other R-l Districts are located for the most part on the Chester River; one extends from Winchester Creek to the southern boundary of the Ferguson Farm which is located on the peninsula bounded by the Chester River and Reed’s Creek; the other is between the Corsica River and South East Creek. The appellees’ property is located in the second of the three areas described.

All of the three areas have frontage on what is referred to in the testimony as “good” or “broad” water. Fifty properties are included in the three R-l Districts, with an average area of about 320 acres per property. Only three of the tracts are under five acres in size. The properties are generally improved by substantial residences and outbuildings.

There are a number of similar residences not included in the R-l District. The total water front of the properties in the R-l District is 77 miles, which is 29.80 percent of the total water frontage of the County. The appellees, with exemplary fairness, concede that a five acre minimum lot size in a comprehensive zoning ordinance is not invalid per se. They concede also that, while the classifica ³⁶⁴ tion severely restricts the resale of their property, it is not confiscatory.

They do contend, however, and we agree, that the weight of the evidence establishes that in a property such as Blakeford it is more difficult to sell five acre lots than lots of three acres or less, and that the resale value of Blakeford, for development purposes, is decreased by its zoning classification. The testimony clearly establishes the standing of the appellees to attack the constitutionality of the ordinance as applied to their property and other property similarly situated. The legal principles involved are not in dispute. Zoning is an exercise of the police power and, to be valid, must be in the general public interest for the promotion of the health, safety or general welfare of the community.

Nectow v. City of Cambridge, 277 U. S. 183 (1928) ; Creative School v. Montgomery County Bd. of Apps., 242 Md. 552 , 219 A. 2d 789 (1966) ; and cases therein cited. There is a strong presumption of the correctness of original comprehensive zoning. Gorin v. Board of County Comm’rs, 244 Md. 106, 112 , 223 A. 2d 237 (1966) ; Board of County Comm’rs v. Edmonds, 240 Md. 680, 687 , 215 A. 2d 209 (1965), and cases therein cited. The duty of the courts not to substitute their judgment for that of the legislative authority, acting within its powers, however, is no more imperative than the duty to set aside any purported exercise of such power which is arbitrary, capricious or illegal.

Maryland Advertising Co. v. City of Baltimore, 199 Md. 214, 222 , 86 A. 2d 169 (1952). See also Walker v. Board of County Comm’rs, 208 Md. 72, 87 , 116 A. 2d 393 , cert. denied, 350 U. S. 902 (1955). But the burden of overcoming the presumption of the constitutionality of legislative action is a heavy one. Gilmor v. City of Baltimore, 205 Md. 557, 564-65 , 109 A. 2d 739 (1954).

The enabling act under which the Commissioners passed the ordinance is Code (1957) Article 66B, Section 21. Subsection (a) of that act gives the legislative bodies of counties, cities and other incorporated areas the right to zone “[f]or the purpose of promoting health, safety, morals or the general welfare of the community * * *” Subsection (c) reads as follows: "Purposes in view.—Such regulations shall be made in accordance with a comprehensive plan and designed ³⁶⁵ to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.” The appellees strongly and ably contend that it is clear from the evidence that the primary purpose in zoning Blakeford and comparable properties as R-l Estates was to preserve certain sections of the County, encompassing the great majority of the desirable water frontage on the Chester and Wye Rivers, in their present state, and that the properties were so zoned in order that they could be disposed of only to “substantial” people, of “more than ample” financial resources. The imposition of the restrictions in the R-l District for such a purpose, it is argued, is not within the power delegated to the Commissioners because the power to zone can only be exercised for the promotion of some substantial public purpose.

The appellees rely upon the fundamental principle that restrictions imposed under the police power cannot be supported on the basis of individual private benefit. England v. Rockville, 230 Md. 43 , 185 A. 2d 378 (1962) ; Kracke v. Weinberg, 197 Md. 339 , 79 A. 2d 387 (1951) ; Perellis v. City of Baltimore, 190 Md. 86 , 57 A. 2d 341 (1948). The phrases quoted by the appellees were used by Mr. Kenneth L- Wilson, who served as chairman of the Commission for over four years. However, Mr. Wilson testified further that there were many criteria considered in the decision to establish an R-l District.

He pointed out that the R-l areas are generally located some distance from the most densely populated sections of the County, and, if there were a heavy density ³⁶⁶ of population in the R-l areas, problems would be presented which do not arise under the present use. The properties are relatively highly assessed, and produce good tax revenues for the community while requiring very little general cost to the municipal government. Many, although by no means all, of the historical sites of the County are located in the R-l zone “and it contributes to the general culture and historical importance of the County to preserve these and protect them in some way.” Mr. Archibald Coleman Rogers, a planning expert who testified for the appellees, while of the opinion that the classifications in the R-l zone were not proper or reasonable and while disagreeing with the method of gradation used in creating the area districts, agreed that it is desirable to attract to the community some people of means, and that, in zoning, it is appropriate to consider historical associations. Mr. Julian Tar-rant, a planning consultant who aided the Commission, testified that the concept of the R-l District was that it should include large areas of contiguous and predominantly similar properties, having a community of interest based on such common factors “as the broad open water of the Chester River or the especially attractive waters of the Wye River,” the properties being generally large and without small lot development.

Other considerations, he said, were the relative seclusion of the areas and the incidence of historic factors, “an atmosphere of the early history of Queen Anne’s County.” Communities of a similar character such as those along the James River in Virginia, he testified, have proved to be valuable to the state and to the county in attracting owners of substantial means and tourists who contribute to the economy. Mr. Oscar Sutermeister, a consulting planner, who has been a consultant to the Maryland State Planning Department and several county and city planning and zoning commissions in the State, called by the appellants, testified that the system of zoning classification in the Queen Anne’s ordinance is “perfectly reasonable for a rural county in a highly urbanized area.” He was of the opinion that, in view of all the circumstances, the stated intent of the ordinance with respect to the R-l zone, to preserve the character of the areas by preventing them from being ³⁶⁷ cut up into small lot subdivisions was proper, and that, under the circumstances, the minimum five acre lot size was very reasonable. On the expected effect of the comprehensive zoning plan on the housing needs of persons in the County in various economic situations, Mr. Tarrant testified as follows: “If I may put it this way, your Honor, we have provided areas for all the different kinds of housing and the requirements for different kinds of housing that we know about in the County, by which there is apparently some need or demand from the most modest up to the highest, the lowest standards that would be acceptable up to the highest standards. We seem to have quite a wide range of that type of development in the County and also a demand for it.

In doing so we have provided five types of R or residential districts, R-l, R-2, R-3, R-4 and R-5. The standards applied to these different districts designed in that order, that is, R-l being the most restrictive, and R-5 the least restrictive as to the standards which apply in each district, with each one designed to meet a specific need in the County, leveling to the lowest one, the R-5. Generally that’s the area where the most modest kind of home are of a type on the smallest size lots would be permitted, and would seem to meet the need for the very lowest income home occupants, including even the migratory or seasonal workers that have to be housed, and we have provided amply for those needs in a number of different locations in the County, particularly near the industrial areas, and it is not a question of forcing people to go into one district or another. We are simply providing different types of areas to meet different needs, different size lots with different size income, we will say, and different standards that apply, and that’s the sense of our zoning.” Mr. Tarrant further testified that, while the primary purpose in establishing the R-l District was as a part of a comprehensive scheme of districts in which there would be a variety of ³⁶⁸ types of districts to meet the various needs, including the small lot, urban-type houses, the suburban or rural-type and farm living, to the estate-type living, the R-l District also contributes directly to the health and safety of the County.

The low density of the District, he believed, minimizes the sanitation problems which exist in other parts of the County and reduces the traffic problems on the local roads. The limitation of the density in the R-l District, in his opinion, tends to channel the denser population growth into locations nearer the centers of public service, the established towns and other centers where there are fire-fighting, police and water facilities. The appellants contend that the general zoning purposes set forth in Section 21(a) of the enabling act are in the disjunctive, and that there is substantial evidence in the record to show that the ordinance tends to accomplish several of the specific purposes enumerated in Section 21(c), including the lessening of congestion in the streets, the promotion of health, the prevention of undue concentration of population, and the promotion of fire safety and adequate provision of water and sewerage and other public requirements. The position of the appellees is that when the County has attempted to exercise the power to zone primarily for the protection of the wealthy who live in the district, as they argue is the case here, the sovereign power is not exercised for the promotion of a substantial public purpose but rather for the private benefit of individuals, and is therefore invalid.

They submit that cases in other jurisdictions have rejected such zoning as is here involved as an improper exercise of the police power. We agree that if the primary purpose or effect of the ordinance is to benefit private interests, rather than the public welfare, the legislation cannot be held valid merely because some of its incidental effects may be for the general good. On the other hand, if the ordinance has a substantial relationship to the general welfare of the community in that it can fairly be taken as a reasonable effort to plan for the future within the framework of the County’s economic and social life, it is not unconstitutional because under it some persons may suffer loss and others be benefited. Courts of other states have had occasion to balance these factors; the decisions, as we read them, ³⁶⁹ turn on the various economic, physical and sociological factors involved in the particular case.

Board of County Supervisors of Fairfax County v. Carper, 200 Va. 653 , 107 S. E. 2d 390 (1959), held invalid a county zoning law fixing a two acre minimum lot size in the western two-thirds of the county. Ninety percent of the people lived in the eastern one-third. The population of the county had more than doubled in seven years. The court said the practical effect of the ordinance was to force people in low income brackets to live in the eastern area, reserving the western area for those who could afford to buy two acres or more. “This,” the court said, “would serve private rather than public interests.” 200 Va. at 661 .

In National Land and Investment Co. v. Kohn, 419 Pa. 504 , 215 A.