Storch v. Zoning Board of Howard County

Barnes, J., delivered the opinion of the Court. The questions presented to us by this appeal revolve around the validity of amendments to the text of the Howard County Zoning Regulations ordered by the ap ⁴⁷⁸ pellee, the Zoning Board of Howard County (Zoning Board), on October 11, 1971. The Circuit Court for Howard County (Macgill, C. J.) sustained the validity of the amendments by its order of March 10, 1972, from which the appellant, Bourough Storch, an aggrieved landowner and builder, took a timely appeal. Ridgely Jones, one of the members of the Zoning Board, in accordance with Section 33.01 of the Howard County Zoning Regulations, filed a petition with the Zoning Board on August 27, 1971, to delete the words “and two” from the following Sections: 2.01, R-90 Residential, one and two family detached; 2.02, R-40 Residential, one and two family detached; 2.03, R-20 Residential, one and two family detached; 2.04, R-16 Residential and 4.011, uses permitted in the R-90 districts, one and two family detached dwellings.

The effect of the proposed amendments was to confine the permitted use for dwellings in the residential districts mentioned (R-90, R-40 and R-20) to one family detached dwellings rather than the then existing one and two family detached dwellings. The requirements of the Zoning Regulations in regard to notice and public hearing before the Zoning Board of the petition were duly met. The Zoning Board held the hearing on September 28, 1971, at which the Zoning Regulations, the General Plans and the Report of the Howard County Planning Board of September 23, 1971, were introduced into evidence. The “Conclusions” in the Planning Board’s Report were as follows: “1.

The Planning Board cannot determine any reason to delete two-family detached dwellings from Section 4.011 of the Zoning Regulations. “2. The Planning Board sees no detrimental effect of two-family detached dwellings located in single-family detached areas. “3. If the intent of the petitioner is to dis ⁴⁷⁹ courage a large concentration of multifamily dwellings in an otherwise single-family residential area then it would be better if the proposed Regulations were worded to allow two-family dwellings in R-90 through R-16 Districts, only when those dwellings are ‘owner occupied’. Thereby, disallowing both units to be rented by an absentee owner.

This may be accomplished by amending Section 37.28, which is the definition of a two-family dwelling. “4. The Planning Board also suggests that an alternative approach might be that a new Section 30.13 be added to the Zoning Regulations to provide for two-family dwellings in the R-90 through R-16 Districts, by approval of the Board of Appeals. “Therefore, in view of the above findings and conclusions the Planning Board recommends that the Zoning Board adopt one of the two alternative solutions mentioned in Items 3 and 4.” In addition to the Planning Board’s Report and the documentary evidence mentioned, three residents and property owners testified in favor of the proposed amendments, i.e., Douglas May, Philip Paris and Herschell Doss. Mr. May is President of the Pine Orchard Improvement Association. He was alerted to the provision permitting two family detached dwellings in certain residential zones so far as density was concerned by a decision of the Zoning Board earlier in 1971 to reject a builder’s application to rezone the builder’s land from half-acre lots to quarter-acre lots, but then have the same density on the half-acre lots by the erection of two family detached houses as one would have on quarter-acre lots with one family detached houses.

Theretofore, there had been relatively few applications for the two family dwellings so that there had been little difficulty with density; ⁴⁸⁰ but he had been advised that recently 14 or 17 permits had been issued, with 20 applications pending, a total of 37, which in turn would put the density at 74 houses or the same as if the quarter-acre lot application had been granted rather than denied. In his opinion, this two family dwelling provision was incongruous and provided for an undesirable density in a small area, doubling traffic with a resulting adverse effect. Mr. Paris testified substantially to the same effect as did Mr. May. He was of the opinion that unless the proposed amendments were adopted, “other communities within this County could be seriously affected, as we are by traific problems, by sewerage problems, by water problems and quite possibly, although I have no way of knowing for sure, by reduction in value of their homes.” He stated that he was “objecting to them [two family detached dwellings] because of what happened to us right now. ...

I was raised in East Baltimore and I moved to this County to get away from that sort of thing.” Mr. Doss testified that, in his opinion, to “double the density on the R-90 through R-16 Districts would be disastrous.” He had calculated that if the maximum number of permits for two family detached dwellings were granted, it would “add a population potential to this County of 398,000 people. I think it adversely affects my property value.” The 398,000 figure was somewhat shaken on cross-examination; but the Zoning Board let it stay in the record “for what it’s worth.” Like the other two witnesses, Mr. Doss had little objection to a few, scattered two family dwellings, but was alarmed by a “concentration of them” in the County during the last two months. He considered a concentration of approximately 20 acres as a major concentration. The appellant, Bourough Storch, produced the testimony of his engineer, Ronald E. Bailey, who was familiar with Mr. Storch’s development.

He was of the opinion that the existing Zoning Regulations in regard to two family detached dwellings would have no adverse effect ⁴⁸¹ on the County’s facilities and were in the best interest of the County. All of the relevant factors were taken into consideration with the adoption of the General Plan in 1960 and provided a desirable flexibility in residential development. The Howard County Department of Public Works, in a memorandum of August 30, 1971, indicated that the “Present occurrence of two-family homes in these areas are not significant and have not had an adverse effect upon the water and sewer facilities.” On October 11, 1971, the Zoning Board unanimously granted the application to amend the text of the Zoning Regulations as already set forth and added two additional text amendments, as follows: “19.33 The Board may approve the conversion of any single family dwelling unit to a two family detached dwelling unit in any Zoning District. “19.34 The Board may approve an individual site for a two family dwelling unit in the R-90, R-40, R-20 Zoning Districts.” The Zoning Board made the following findings: “1. That under the present regulations it is possible to develop large concentrations of multifamily dwellings in otherwise single-family residential areas. “2.

That the development of large concentrations of multi-family dwellings in single-family residential areas is not in accordance with the general plan of development of Howard County. “3. That the Zoning Board feels the deletion of the use of a two family detached dwelling would not allow a person to have elderly parents or children living with them in a separate attached unit, and further a two family detached dwelling may provide the purchaser of the property the possibility of buying the house since he could defray some of the expenses from the rent received on the additional unit. ⁴⁸² “4. That the Zoning Board feels that to absolutely restrict two family detached dwellings in all districts would not be in the public interest.” The appellant duly filed an appeal from the decision of the Zoning Board to the Circuit Court for Howard County and Chief Judge Macgill, on March 10, 1972, filed an opinion and an order sustaining the Zoning Board’s action. In that opinion Judge Macgill aptly stated: “This Court concludes, in reviewing the transcript of the testimony before the Board, that the action of the Board in adopting the amendments to the zoning regulations was, at least fairly debatable and within the sound discretion of that body.

The negative report of the Planning Board was not, in itself, sufficient to invalidate the Board’s action. Mandel v. Board of County Commissioners, supra, 219. To use the words of Lipsitz v. Parr, 164 Md. 222 , 232 ‘In reaching this conclusion, the court has taken into consideration all the testimony that is on the record and proper to be admitted. It does not ignore that something may be said in support of a different view.

There are few questions which do not admit of argument, but something more than admissible controversy is required.’ ” The appellant raised four questions in his brief and at argument, as follows: “ (1) Is the evidence before the Zoning Board sufficient to make the deletion fairly debatable? “(2) Where the action of the Zoning Board in deleting a Regulation was clearly devoid of supporting evidence, should the Court have reversed their action? “(3) Did the Zoning Board of Howard County comply with the provisions of the Zon ⁴⁸³ ing Regulations of Howard County in enacting a new Zoning Regulation in the entitled case? “(4) When adopting, deleting, modifying or changing a Zoning Regulation, is the Zoning Board required to be in accordance with the Comprehensive Master Plan?” (1) and (2) Questions 1 and 2 are closely related and we will consider them together. The County Council of Howard County, on March 12, 1969, adopted Council Bill No. 3 which repealed Sections 343, 344 and 347 of the Code of Public Local Laws of Howard County (1965 Ed.), being Article 14 of the Code of Public Local Laws of Maryland, title “Zoning districts; designation; procedure, hearings, notice” and enacted new Sections 16.200 through 16.209, inclusive, of the Howard County Code. This change established a legislative agency of the County Council consisting of the members of the County Council to be the zoning authority of Howard County and provided for the designation, establishment, adoption, modification, supplementation, enforcement and repeal of zoning districts, boundaries and regulations; provided for the procedure of designation, establishment, adoption, amendment, modification, supplementation and repeal thereof and for appeals from decisions of the Zoning Board. Section 16.201 provided that the Zoning Board “shall consist of the members of the County Council.” After provisions for the establishment of Zoning Districts and Zoning Regulations and provisions for posting and publication of notices and for hearings, Sections 16.205 and 16.206 set out the procedure for amendments, repeal or changes in the Zoning Regulations and changes in district boundaries as well as the conduct of hearings.

A petition for amendment may be filed by any party owning an interest in land or any state or county official; and various requirements for preparation of an official record, including testimony and exhibits, with findings ⁴⁸⁴ of fact and conclusions of law by the Zoning Board, are established. Of particular importance in the present case are the provisions of Section 16.207 in regard to judicial review. After providing for an appeal from a final decision of the Zoning Board within 30 days to the Circuit Court for Howard County by any person, officer, department, board or bureau of the County or State “jointly or severally aggrieved by any such decision and order” and a party to the proceeding below, Section 16.207 provides, in relevant part: “The court may affirm the decision of the Zoning Board or remand the case for further proceedings, or it may reverse or modify the decision if the substantial rights of the appellants may have been prejudiced because the Zoning Board’s findings, inferences, conclusions, or decisions are: “ (1) In violation of constitution or charter provisions; or “(2) Beyond the statutory authority or jurisdiction of the Board; or “(3) Made upon unlawful procedure; or “(4) Fraudulent; or “(5) So grossly erroneous as to imply bad faith; or “(6) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or “ (7)