Spaid v. Board of County Commissioners

Barnes, J., delivered the opinion of the Court. The question presented to us in this appeal in a zoning case is whether the Circuit Court for Prince George’s County (Mathias, J.) erred in affirming the refusal of the Board of County Commissioners of Prince George’s County, sitting as the District Council for the Maryland-Washington Regional District in Prince George’s County (District Council) to rezone the two parcels of land of the appellants involved in this case from the R-R (Rural Residential) zone to the 1-2 (Heavy Industrial) zone because that refusal was arbitrary, unreasonable and capricious and denied the appellants as owners of the property due process of law. We have concluded that the lower court did err in affirming the District Council’s action. There are two tracts of land involved in the present case.

They are both located on the Old Baltimore Washington Turnpike in close proximity to each other, but are separated by a small intervening parcel of land. They are in the same block and one of the appellants appears to have an interest in both properties. Both cases were heard together before the District Council and the cases were ³⁷² consolidated and heard together before the lower court on appeal to that court. One property is involved in Application No. A-6812, filed on July 14,1966, which sought a reclassification from the R-R zone to the 1-2 zone for 1.0325 acres.

The applicant, Glen L. Spaid, one of the appellants, owned this 1.0325 parcel. The property is bounded on the east by the right-of-way of the Old Baltimore and Washington Turnpike, 80 feet wide, and has a frontage on that road of approximately 220 feet. On the north, the property line of approximately 216 feet adjoins the land of the Inter-City Industrial Center, Inc. and the westerly line of approximately 229 feet also adjoins the land of Inter-City Industrial Center, Inc. The southerly line of approximately 219 feet adjoins the land of James L. Bohrer, on which there is a single-family dwelling, a garage and a stable. Farther to the southwest is the Pressure Science, Inc. building.

On the property involved in Application No. 6812 is a one-story single-family dwelling, a shingle garage and a frame stable. The other property is involved in Application No. 6813. This application was filed on July 14, 1966 (the same filing date as Application No. A-6812), by its owner, Orndorff & Spaid, Inc., a Maryland Corporation, which sought a zoning reclassification from the R-R zone to the 1-2 zone for 1.479 acres. This property is a rectangular property.

For its easterly boundary, it has a frontage of approximately 401 feet on the Old Baltimore and Washington Turnpike. For its northerly boundary, it has a frontage of approximately 145 feet on the right-of-way of A mm end ale Road, 70 feet wide. It is bounded on the west by a narrow strip of land, approximately 5 feet in width zoned R-R, to the west of which is land zoned 1-2, for a distance of approximately 450 feet, and on the south by land zoned R-R. The land involved in Application No. A-6812 lies some 312 feet to the south of the land involved in Application No. A-6813. In Application No. A-6813 the property is a one-story, stucco and frame single-family dwelling and a garage. ³⁷³ With the exception of a buffer strip the entire area lying roughly between the tracks of the Baltimore and Ohio Railroad Company and the Old Baltimore and Washington Turnpike had been rezoned to the 1-2 zone.

The “buffer strip” measured 150 feet in depth from the westerly side of the Turnpike to the west and if extended south from a point somewhat north of Ammendale Road to Odell Road, also called by the intriguing name of Swain-poodle Road, approximately 1400 feet south of the property involved in Application No. A-6812. The Amended Report of the Technical Staff of the Maryland-National Capital .Park and Planning Commission (Planning Commission), released May 24, 1968, considered both applications together. The Technical Staff recommended the denial of both applications and in the discussion in its report stated: “These two parcels of land are located within the area covered by the Fairland-Beltsville Master Plan, adopted Jan. 24, 1988, which proposes R-55 zoning for the subject properties and those in close proximity along both sides of Old Baltimore Pike. It is the intent of this report to include the proposals and text of the Adopted Plan as part of this report. “The proposals of the Plan and the ultimate recommendations of this report reflect the continued belief that industrial development should not encroach along this section of Old Baltimore Pike.

It is believed that this encroachment would jeopardize existing and proposed residential areas for more intensive use. Previous zoning decisions have established a one lot set back (approximately 150 ft.) for industrial uses along Old Baltimore Pike as a buffer. “The industrial requests would, if granted, inject industrial frontage on Old Baltimore Pike. Although there is one such enterprise, Pressure Science, Inc., located a short distance to the ³⁷⁴ southwest of subject petition A-6812, it is set far off the main thoroughfare. Industrially-zoned land is quite extensive in the area west of the subject petitions to the B & O Railroad.

The industrial complex to the west has adequate industrial sites available, some with direct access to the railroad, to serve the needs of the area and county without jeopardizing residential areas of the county.” The Report assigned three reasons for the recommended denial: “1. The requested reclassifications are not in accordance with the Fairland-Beltsville Master Plan, adopted January 24,1968. “2. Industrial zoning and development along this section of Old Baltimore Pike would jeopardize adjacent and nearby residential land for a more intensive use. “3. There is adequate industrial land, in the form of an industrial complex with good highway and railroad access, both existing and proposed to the west of the subject parcels to serve the industrial needs of the area.” The Planning Commission on June 26, 1968, also recommended denial of the two applications giving the identical three reasons contained in the Report of the Technical Staff.

At the hearing before the District Council the applicants offered the testimony of two well-qualified experts, James F. Sheehan, a planning consultant for 22 years, and E. L. Dieudonne, Jr., a real estate broker and appraiser for 30 years, and a frequent expert witness in zoning cases. Mr. Sheehan testified in regard to the subject properties and the properties in the general area. He stated that practically everything in the corridor between the Baltimore Boulevard and the Old Baltimore-Washington Turn ³⁷⁵ pike “is an industrial use. There is practically no single family residential use, the whole thing looks like in the-future it certainly will go at least industrial.” He pointed, out that there will be substantial residential traffic on Ammendale Road—an industrial road—and on a new proposed I-C road, so that the property involved in A-6813 at the corner of the Turnpike and Ammendale Road is-“very undesirable use for the R-55 category,” that is for “residential category.” It was his opinion that the granting of the two applications to extend the 1-2 zone to the Turnpike would not “adversely affect any of the residential property to the east, or to the southeast.” In his opinion, it was most undesirable to have the most undesirable uses—those permitted in the 1-2 zone—backed up to-a residential zone.

In his opinion no residences would ever be built facing the Turnpike and to attempt to use the 150 foot strip as a buffer was “not the proper thing.” “I think here we could use the road as the buffer, everything to the east would be residential and everything to the west would be industrial.” He further stated that “you will find in any master plan in the whole metropolitan area of Washington that an arterial highway is used as a separation between zones.” He further testified that in his opinion no one “could possibly build a residential home in that area at all.” In his opinion the 80 foot road—the Turnpike would provide a more reasonable buffer between the area between the commercial properties and’ the residential to the east and that “this type of buffer is commonly used in many master plans.” Commissioner Baggett, during Mr. Sheehan’s direct examination, volunteered that the “buffer zone” was not. established so that residential homes could be built on it. He stated: “This buffer zone was set up as a buffer zone to protect the people on the east side from any intrusion whatsoever from the industrial.” Counsel for the applicants then asked Commissioner Baggett: ³⁷⁶ “Q. Are you saying that it was set up as a buffer strip to protect the people on the other side of the road by using the residential as a buffer strip.” To which question the Commissioner replied: “By using that property. It was in a non-building, commercial zone. That is what they were willing to give to get their zoning, they do it at every zoning, they give you a hundred feet, they give you a zoning to protect the other people’s rights.

These other people are entitled—if they were entitled to it ten or twelve years ago they are entitled to it now.” Mr. Dieudonne testified that the closest modern house to the subject properties “is about a half mile to the south, there are no houses to the north.” In his opinion, the proposed uses would have “no adverse effect on neighboring uses, there are no adjacent residential uses, and properties adjoining to the northwest and to the south are already being used industrially, and neighboring uses are dominated, as we have already seen, by industrial use. So I can’t see how the zoning could have any different effect, other than to upgrade some of the older industrial properties found around there.” He then stated: “I realize, * * * that there are many parcels of land along here which have conformed to this setback. But today, gentlemen, we are talking about two particular pieces of property, one of which lies entirely within the buffer strip, the other one roughly one-half within the buffer strip. “It seems to me that if you had those parcels such as Mr. Ewing’s and those along to the south they could well afford the buffer strip. But as a practical matter, this one particular one is completely within it, and seemed to preclude its use.” ³⁷⁷ Commissioner Baggett then stated: “We set the whole thing up to preclude the uses, that is what your point is that you have to make to us, how we can take that out.” Mr. Dieudonne then testified that he had “looked over the plan, not only the Fairland-Beltsville plan but all other master plans in Prince George’s County, it became very clear that those arterial roads have one zone on one side and one zone on the other side.

But I have yet to see a buffer zone buffering property on one side by property on the other side.” He further stated that if the subject properties were zoned R-55 and it was attempted to build a house there, it was his opinion that it would not be other than “an economic casualty.” Commissioner Baggett then stated: “I do not think there is any question in our mind that that is why we set it up, to cause an economic casualty that started to determine something that was set aside by buffer strip for protection of property on the east side.” Counsel for the applicants then stated: “I think he is talking about R-55 residential homes.” To which Commissioner Baggett replied: “We don’t care, that was the only category we do set up it. That was the lowest. We put it R-55, and we said it was going to have to delete this from this other piece of zoning which was granted.” Counsel for the Applicants then stated: “Even if it could not be used as R-55 ?” To which the Commissioner replied: “We did not want it to be used. Nowadays we ³⁷⁸ make it a lot smaller than the law calls for to build on so you cannot use it.” When asked whether the subject properties could, in "his opinion, be used for R-55 zoning, Mr. Dieudonne replied that they could not be so used because: “I don’t think you could get a loan on that, Mr. Francois.

I am on the VA staff and the FHA staff, and I believe that there would be enough adverse influence brought about by an industrial corridor of this size plus widening of that road to preclude financing of VA or FHA. “Now, in this type neighborhood and this area I believe you have to build a lower priced house. A lower priced house would be served today 100 per cent or better by Government financing.” When asked by Vice Chairman Francois if it were possible for a person who had the money to build a house ■on the subject properties, Mr. Dieudonne replied: “If you had all cash and wanted to build a house on it you could build a house on it, in my opinion. In my opinion as an expert, which is what I was asked, I believe it would be an economic casualty. And Mr. Baggett agrees.” On cross-examination, it appeared that the Pressure Science Laboratory had agreed to a 150 foot setback and that other property owners having large tracts of land Tiad voluntarily setback their buildings beyond the 150 foot buffer.

Apparently two-thirds of the industrial corridor, however, had no setback of 150 feet, the buffer extending from “a little to the north of Ammendale Road and to the south of Ammendale Road to Odell Road.” Mr. Dieudonne was also of the opinion that the master plan was in error in regard to the proposed R-55 recommended classification of the subject properties. James Redmon, an employee of the Planning Commission, testified that the Planning Commission had recom ³⁷⁹ mended disapproval of the applications for the three reasons already set forth, and that the strip of R-55 zoning to the west of the Turnpike was to “provide a buffer strip.” He stated that the purpose of the buffer strip was, '“[t]o protect the residential properties along the east side of the borderline.” Two property owners appeared in opposition to granting the applications but stated no reasons for their opposition. One introduced a letter from the Beltsville-Vansville District Citizens’ Association, Inc., signed by its president, addressed to the District Council, which stated: “We oppose the requested 1-2 zoning above as it would be detrimental to the surrounding residential neighborhood. We agree with the recommendation of R-55 for this area.” Counsel for the protestants brought out that there was no objection to industrial rezoning that conformed to the 150 foot setback.

In his closing statement to the District Council, counsel for the applicants argued that a denial of rezoning would in effect deny the applicants the use of their property; that the expert testimony indicated that the Turnpike was itself the proper buffer; and that it was improper for the 150 foot strip to be used as a buffer. He then stated, that in any event, if the District Council saw fit to deny on the basis of the buffer concept, that it consider Application No. Á-6812 to grant the requested rezoning for the portion of the land involved in that application lying to the west of the 150 foot line. On December 20, 1968, the District Council passed two resolutions in regard to the respective applications. In regard to Application No. A-6812, the application was “approved for 1-2 for .4731 ± acre (20,610-t square feet), being that portion of the property which lies west of the 150-foot buffer strip, and approved for R-55 for .5584 ± acre.” In regard to Application No. A-6813, the application was “disapproved for 1-2, but approved for R-55 for ³⁸⁰ 1.479 ± acres, in accordance with the recommendation of the Park and Planning Commission.” The applicants filed timely appeals to the lower court from these actions by the District Council.

The two cases were consolidated by the lower court and heard together. The lower court was of the opinion that the actions of the District Council were not arbitrary, unreasonable or capricious, but were fairly debatable, and the court should not substitute its judgment in regard to where to draw the zoning line for that of the District Council. It signed an order February 12, 1970, affirming the actions of the District Council and dismissing the Petitions for Review. A timely appeal was taken from this order to this Court by the applicants.

Before considering the principal question involved, the appellee, District Council, suggests that the appeal should be dismissed as to Application No. A-6812 because the District Council “gave petitioners exactly what they requested” and further that because of this, the applicant in Application No. A-6813 cannot dispute the continuance of the buffer strip so that the appeal in regard to Application No. A-6813 should also be dismissed. We do not agree with this contention. Counsel for the applicants made it entirely clear in his argument to the District Council that the requested reclassification for R-R to 1-2 in both applications should be granted and to fail to do this would unlawfully deprive the applicants of the use of their respective properties. He did state, as we have indicated, that if the District Council decided to reject his position in this regard, in any event, it should grant the requested 1-2 zoning for the portion of the property lying outside and west of the 150 foot buffer strip.

We do not interpret this action of counsel as in any way abandoning his primary position, but merely as a proper attempt to obtain for his client part of the requested relief even if the District Council should, in his opinion, act improperly in regard to the rest of the relief sought. In our opinion, there was no abandonment by counsel for the applicants of his primary position and request for ³⁸¹ reclassification of all of the subject