Reese v. Mandel

Prescott, J., delivered the opinion of the Court. After the Zoning Commissioner of Baltimore County and the County Board of Appeals (Board) had denied a request for zoning reclassification, the Circuit Court reversed the action of the Board, and directed that the reclassification be granted. Nearby property owners, who had been granted leave to intervene below, have taken this appeal. The appellees, the Mandéis, are the owners of a 35-acre tract of land located about a mile and a half north of Towson in the Eighth Election District.

It is bounded on the northeast by Pot Spring Road, on the east by Dulaney Valley Road, on the south by Seminary Avenue, and on the west and northwest by an irregular line that finally joins the northeasterly boundary on Pot Spring Road. All of the property was zoned R-40 in the new comprehensive zoning map of the Ninth Election District adopted in 1955, 1 with a small exception not here involved. Approximately 23 acres of the 35 acres are sought to be reclassified from R-40 to R-20 zoning in this proceeding. The appellees made no attempt to show “a change in the neighborhood,” nor that a failure to grant their request would deny them all reasonable use of the property, to support their petition, but relied on a claim that a mistake in regard to their property had been made when the new comprehensive map ¹²⁴ was adopted.

The trial court sustained this contention and held there was “no substantial evidence to support the finding [that the appellees had failed to establish a mistake had been made in the comprehensive map] and order of the Board in denying the petition for reclassification * * * from R-40 to R-20.” He therefore concluded the action of the Board was arbitrary, reversed its decision and order, and remanded the proceedings to the Board for an order in accordance with his memorandum opinion. The testimony adduced was quite lengthy and the appellants have raised several questions, but, in the view that we take of the case, the testimony may properly be concisely summarized, and only one of the appellant’s contentions need be considered at any length. Julius Mandel stated his reasons for requesting the change in zoning were that there was a greater demand for half-acre lots than for acre lots, and the half-acre lots were more economical from the standpoint of both the owner and the developer. He frankly admitted that his property, if rezoned, would be surrounded on all sides, except one, by R-40 zoning, a fact clearly shown by a map of the proposed change.

Milton J. Dance, a real estate expert, testified concerning certain nearby R-20 subdivisions, and stated that, in his opinion, the granting of the reclassification would not have any depreciatory effect on adjoining properties, provided the improvements were in keeping with the general area. A portion of the minutes of the Baltimore County Planning Board of December 19, 1957, was read into the record. It disclosed that the Planning Board, an advisory body, had, on November 6, 1957, appointed a committee of three of its members to study the petition for reclassification. The committee concluded that the proposal to reclassify the property was appropriate and logical.

After discussion, the Planning Board, itself, agreed that an error had been made by the County Commissioners in the adoption of the Eighth and Ninth Districts zoning maps, subsequent to the approval of those maps by the Planning Board. This conclusion was based upon a statement that the zoning plans approved by the latter had established a broad band of R-20 zoning easterly of ¹²⁵ the band of R-10 zoning alongside of Charmuth Road for transition to the R-40 zone adjacent to Dulaney Valley and Pot Spring Roads. The maps, as finally adopted by the Commissioners, shifted the R-10 zone line easterly, but failed to make corresponding adjustments to the eastern boundaries of the R-20 zone, resulting, in the opinion of the Planning Board, in an illogical boundary between the R-20 and R-40 zones. Malcomb H. Dill, Director of Planning, stated that based upon the particular subdivision plan as presented it would be difficult to demonstrate that the R-40 properties in the vicinity would be depreciated in value, but said, “it is conceivable that this [subject] property could be developed in half-acre lots in such a way as definitely to affect the neighborhood unfavorably.” He was in general accord with the conclusion reached by the Planning Board, which has been stated above.

Augustine J. Muller, who served as one of the County Commissioners and also as an ex-officio member of the Planning Board at the time of the adoption of the new comprehensive map in 1955, was called as an expert witness by the appellees, and testified that he agreed with the conclusion of the Planning Board, as stated in the minutes of its meeting of December 19th, and for the same reasons. The protestants called quite a number of nearby property owners, among whom were a lawyer, a banker, and a registered architect, who had been a contractor and builder for some thirty years. All of these witnesses were in general agreement that there was no error in the R-40 zoning of the Mandel property when the comprehensive map was adopted, that the property could be properly and profitably developed in the R-40 classification, and that its reclassification to an R-20 zoning would depreciate the value and desirability of nearby properties, many of which, although zoned R-40, contained much larger areas for single residences than the one-acre requirement of that classification. We shall elaborate, briefly, upon the testimony of three of these witnesses.

J. Nicholas Shriver, Jr., was authorized to appear in behalf of the Board of Directors of the Carmelite Sisters of Baltimore, whose property, consisting of 27 acres, ¹²⁶ is just across the road south of the subject property. Their property and the improvements, when completed, will represent an investment of some $300,000. The Carmelite Sisters of Baltimore, a corporation, is a cloistered order of nuns, and before purchasing the property, due to the fact that the nuns do not leave the property, a survey was made to find a location that would be close to a source of supply of necessaries, and, at the same time, afford the privacy desired. To use Mr. Shriver’s words, the property was selected, “because it was in the center of an area with the highest zoning requirements that existed in Baltimore County, and which seemed to be such a well stabled area that it didn’t appear that any zoning changes could be anticipated.” 2 Pietro Pérsico is the graduate architect, and contractor and builder of thirty years’ experience.

He is the owner of forty-two acres, across Pot Spring Road and directly to the north of the subject property, which he is developing on an R-40 basis, with homes in the $40,000 to $45,000 class. It was his opinion that the R-40 classifications of his property and that of the Mandéis were proper, that he saw no reason why the Mandel property could not be developed on an R-40 basis, and that it was his opinion, from experience, that development of the Mandel property on an R-20 basis would have a tendency to depreciate value of his own R-40 property. Charles F. Reese said that he had lived on the southeast corner of Seminary Avenue and Dulaney Valley Road for 18 years, in a home that was located on a rising slope (zoned R-40), which looked directly across to the Mandel property. He thought that the R-40 classification of the Mandel property on the zoning map was “certainly” an appropriate one, and he was of the very definite opinion that its proposed reclassification, if permitted, would be detrimental to the surrounding property in the area.

He also testified that he was treasurer of the Dulaney Valley Protective Association, representing some one hundred and five families in the general ¹²⁷ neighborhood, and the association had met and had voted unanimously to oppose the reclassification. The appellants earnestly suggest that a basic and very significant piece of evidence, which supports their main contention in the case, is the zoning map, itself, and we agree. The Board of Appeals based its denial of the reclassification squarely upon the conclusion that the legislative body, the County Commissioners, had not made a mistake with reference to the subject property, when the comprehensive map was adopted. The map demonstrates that the property sought to be reclassified from R-40 to R-20 is completely surrounded on all sides by R-40 zoning, except for 500 feet in the extreme southwestern corner, which adjoins an R-20 zone to the west.

Mr. Muller, one of the appellees’ expert witnesses, admitted the subject property, if rezoned, would constitute “an irregular rectangular peninsula of R-20 jutting out into an otherwise R-40 zone.” The map also shows that the subject property is in the midst of a broad band of R-40 zoning running along the western side of Dulaney