Smith v. BOARD OF CTY. COMM'RS OF HOWARD CTY.

M.arbury, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Howard County dated February 26, 1968, which dismissed a bill of complaint filed by Albert M. Smith, et al, appellants. In that bill the appellants had requested the Circuit Court to declare invalid and void a resolution of the County Commissioners of Howard County filed in zoning case No. 455 on December 27, 1966, and to enjoin an amendment of the zoning map of Howard County in accordance with this resolution. Mr. and Mrs. Kenneth B. Tyler were the contract purchasers of 22,822 square feet of land located at the intersection of Maryland Route No. 175, (Waterloo Road) and Maryland Route No. 103 (Montgomery Road).

The subject property, which is substantially triangular in shape, the land contiguous to the subject property, and the land on the side of Montgomerty Road opposite the subject property, were all zoned for residential uses. Land on the side of Waterloo Road opposite the property was zoned as B-l and B-2 (Commercial) uses. The Tylers filed an application with the Board of County Commissioners to rezone the Subject property from R-20' (Residential) to B-l. The Planning Commission of Howard County, recommended denial of said application on the ground that the residential classification of the subject property was part of a general zoning plan for Howárd County adopted in 1961, and for other reasons including their opinion that the reclassification would constitute spot zoning.

Following a public hearing at which the appellants appeared as protestants, the Board granted the petition for rezoning declaring that there had been a mistake in the original zoning of the property. Appellants then filed suit in the Circuit Court for Howard County alleging that the action of the Board was illegal and un ²⁸³ constitutional. The case was submitted on the testimony and evidence which had been before the Board. In deciding the case, the lower court found that the evidence before the Board was not substantial enough to make the issue of mistake in the original zoning of the subject property fairly debatable.

However, the court denied the relief sought by the appellants because it found that there was sufficient evidence of change in the neighborhood to justify the Board’s decision to reclassify the subject property. On appeal, the appellants present two questions: (1) was the evidence before the Board substantial enough to make the issue of error in the original zoning or change in the neighborhood fairly debatable; and (2) did the reclassification of the subject property constitute illegal “spot zoning.” At the hearing before the Board, Mr. Tyler testified that he and his wife had operated for twenty years, as a non-conforming use, a grocery store located about one-quarter mile south of the property. Due to the expiration of the lease at this location and their inability or the undesirability of acquiring it as their own property, the Tylers sought a nearby relocation site since they had built up good will in the community. Although there is a shopping center directly across Waterloo Road, Mr. Tyler testified that the subject property was the only available spot that he could find to relocate his grocery store.

The Tylers’ contract to buy the land was contingent upon granting of the commercial zoning. On innumerable occasions, this Court has held that “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 a substantial change in conditions.” France v. Shapiro, 248 Md. 335, 342 , 236 A. 2d 726, 730 , citing Greenblatt v. Toney Schloss, 235 Md. 9 , 200 A. 2d 70 , citing Shadynook Imp. Assn. v. Molloy, 232 Md. 265 , 192 A. 2d 502 and cases there cited. We have further