Stratakis v. Beauchamp

Levine, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Baltimore County (Proctor, J.) which reversed the granting of a rezoning application and special exception sought by appellants. They are the owners of a 2.63-acre parcel of land located on the northwest corner of Cromwell Bridge Road and Cowpens Avenue in the Ninth Election District of Baltimore County, contiguous to the northbound “on” ramp of the Baltimore Beltway. It is separated from the beltway by a portion of state-owned flood plain.

The property is presently in the D.R. 3.5 zone (density residential, 3.5 dwelling units per acre). The application seeks reclassification to the D.R. 16 zone (density residential, 16 dwelling units per acre), and is accompanied by a request for a special exception for office-building use. We shall demonstrate at the outset perhaps why, among the arguments advanced on appeal, no claim is made of a denial of procedural due process. The application was first studied by the planning board staff which recommended its approval.

The planning board, itself, recommended denial, whereupon it was heard by ⁶⁴⁶ the zoning commissioner who denied the applications. The zoning commissioner’s decision was appealed to the County Board of Appeals, which decided that thé county council had erred in assigning the D.R. 3.5 classification as part of a recently-adopted comprehensive zoning map, and granted the application and special exception. On appeal to the circuit court, that decision was reversed. We hope this will be the final chapter in the current zoning history of this parcel.

As we have already suggested, the subject property acquired its present classification (D.R. 3.5) when the county council adopted a comprehensive zoning map for a large segment of Baltimore County on March 24, 1971. This was four months before appellants filed their zoning application. Prior to the comprehensive rezoning, the subject parcel had been in what was then known as the R-20 classification, which was a single-family residential zone allowing two units per acre. In 1970, while it was in that classification, the previous owners of the property had applied for reclassification to the R-A zone (apparently a form of apartment zoning, although the record is unclear in this respect) with a special exception for office-building use.

That application reached the stage of being denied by the zoning commissioner on January 12, 1971, prior to the comprehensive rezoning, and was then abandoned in favor of the subject application. In the processing of that first application, the matter was referred to the planning staff, the director of which was George E. Gavrelis, later to become a major witness for appellants in this case. The staff recommended approval of the zoning application and the petition for special exception. Its reasons were contained in a memorandum from Mr. Gavrelis to the zoning commissioner dated September 4,1970.

There, he said: “a. the topography of the tract made it extremely difficult to develop it for single family residential purposes. ⁶⁴⁷ “b. the shape of the tract similarly made such development difficult. “c. the location of this property between relocated Cowpens Avenue, the Beltway on-ramp, a widened Cromwell Bridge Road, and the new Loch Raven Senior High School suggested that single family residential development here would not be tenable.” (emphasis added). By this time, the planning board had become involved in the production of the forthcoming comprehensive rezoning map. In that frame of reference, it had already approved the maps which proposed the D.R. 3.5 density; thus it had rejected any form of commercial zoning for the subject property. We shall see that the same dichotomy between the board and staff prevailed when this zoning case was considered at the planning level.

On July 27, 1971, four months after the property had been comprehensively rezoned, the subject application was filed by appellants, who were then contract purchasers, but are now owners of the property. The planning staff recommended approval stating: “The Planning staff is recommending that D.R. 16 zoning with a special exception for offices be granted. “The location of the property next to the Beltway entrance ramp makes it undesirable for residential use. The topography appears to make it difficult to develop in residential use.” The planning board recommended denial with this comment: “Since the Beltway acts as a physical barrier between the low-density development and the industrial uses on the west, it is felt that D.R. 16 zoning would impinge upon the low-density development.” In rejecting the application, the zoning commissioner said: “It is obvious . . . that the . . . County ⁶⁴⁸ Council in its adoption of the Comprehensive Zoning Map intended to maintain the Beltway as a buffer between the commercial and industrial zoning to the west and the strictly residential area to the east.

Further, it is obvious that it was the . . . Council’s intention to maintain the large area to the east of the Beltway as a strictly residential area with no commercial or quasi commercial uses, e.g., an office building. “Without reviewing the evidence further in detail but based on all the evidence presented at the hearing, in the judgment of the Zoning Commissioner, the Comprehensive Zoning Map as adopted by the . . . County Council on March 24, 1971, is presumed to be correct, and the burden of proof is upon the Petitioner to show error in this map concerning the subject property. The Petitioner has failed to do so.” The thrust of the board of appeals decision granting the application was that the planning staff recommendation, which it found persuasive, had not been made available to the county council when it acted on the comprehensive rezoning; and had the staff views then been known to the council, the latter “[might] have acted differently.” The circuit court reversed that decision on the ground that the action of the board of appeals constituted illegal “spot zoning.” We shall affirm the judgment entered below since we think the result is compelled by a number of our prior decisions.

We think, perhaps, that there are more apposite reasons than that cited by Judge Proctor, and we shall outline them here. Before we do so, however, a word is in order concerning the property itself. The parcel is all that remains from a larger holding, most of which was purchased for, and is now developed as, the new Loch Raven Senior High School. It is north of, or, as we prefer to say, “outside” the beltway; and is situated between relocated Cowpens Avenue, the belt ⁶⁴⁹ way “on” ramp and a widened Cromwell Bridge Road.

It is affected by a topographical problem in that it is at grade only at a point close to Cromwell Bridge Road; it then slopes down, in a northerly direction, on a 12% grade to a level of 18 feet below the bed of Cowpens Avenue. To the northwest of the property, separated by another segment of state-owned flood plain, is the Lutheran High School. Across the street, on the northeast corner of Cromwell Bridge Road and Cowpens Avenue, is the Loch Raven Senior High School. Beyond this immediate area, and north of the beltway, there are residential developments called Brook Meadows, Chatterleigh and Hunt Club Farms.

This segment of the county is characterized mainly by single-family development in a density of one and two units per acre. It is likewise apparent from the record that the subject property, which, as we have previously noted, had been in the R-20 zone (two residential units per acre), was singled out for special treatment by the planning board and county council because of the physical characteristics mentioned earlier. Indeed, it appears that the council took a bus trip to visit the subject property. In consequence, the property was assigned a density of 3.5 units per acre, and thus became one of the few parcels in this particular area, outside the beltway, to be so treated.

The reasons for reclassification alleged by appellants in their application are: “that the comprehensive zoning map is in error, in that, the property has no reasonable use under the existing zoning.” They have consistently adhered to the same position throughout the entire proceedings, and do so here. In their presentation to the board of appeals, they produced four expert witnesses: Mr. Gavrelis, a traffic specialist, an engineer-planner and a real estate appraiser. The testimony of the traffic expert is not material to this case and we need not dwell upon it here. Nor is it necessary to summarize Mr. Gavrelis’s views, since they are reflected in the two planning staff memoranda from which we quoted earlier.

He did explain, ⁶⁵⁰ however, the differences in terminology and substance between the new comprehensive rezoning map and its predecessor. He pointed out, for example, that the current equivalent of the R-20 zone previously applicable to the subject property, is D.R. 2 (two residential units to the acre) as compared to the D.R. 3.5 now in effect. More importantly, he explained that under the new comprehensive map, in the D.R. 3.5 zone the single-family restriction is removed’ and development is measured in terms of density, i.e. number of residential units per acre. The principal purpose, of course, is to promote greater flexibility in development; and to allow property owners to adjust or compensate for what might otherwise have been insurmountable hurdles under the “old” zoning map.

Mr. Gavrelis further explained the functioning of the new plan, as applied to the subject property, by demonstrating that appellants could include as part of their available acreage, in addition to the actual 2.63 acres, thirty feet of the width of both Cowpens Avenue and Cromwell Bridge Road. Further, since there is no private dwelling within a distance of 300 feet, they are permitted to build apartments or townhouses—some ten or fifteen in number, depending upon the calculations to be ultimately made—without any constraints upon lot sizes or widths. When asked to compare the prior classification of R-20 with the current D.R. 3.5, Mr. Gavrelis summed it up aptly: “The new zoning, the present zoning regulations offer ever so much more flexibility and possibilities of use than they did. It is like apples and bananas.” It is evident from the testimony of the engineer-planner that his studies of the subject property did not take into account the flexibility outlined by Mr. Gavrelis, since he addressed himself to the property solely in terms of whether it could be developed for single-family homes.

Also, he labored under the notion that appellants would be limited to 3.5 units per acre. Apart from resting his testimony on what was essentially an incorrect ⁶⁵¹ premise, he merely made the general statement that: “It would not be feasible to develop this as 3.5.” (emphasis added). He conceded that he had not made comparable studies of the property based on utilization for townhouses or apartments to determine whether such development would be feasible or profitable. He concluded his testimony by basing his opinion that the county council had erred—in placing the property in D.R. 3.5—upon the reason that: “This is an ideal location to have an office building.” The appraisal expert opined that the property was “not suitable” for development in the 3.5 category for apartment or townhouse use, but when asked to give his reasons for that opinion, lapsed into the “single-family” syndrome, saying: “It is very difficult [because of the topography] to develop in a single-family engineering-wise.” [sic].

He added: “The location of this property, located in Cow-pens Avenue, the Beltway on-ramping, the widening of Cromwell Bridge Road, and the new Loch Raven Senior High School, certainly suggest to me that single-family development here would not be tenable and would not be proper.” (emphasis added). Other statements also reflecting the generalizations employed in his testimony are: “When you build apartments, 10 to 15 units, this is a very very difficult project to finance, because the break-even point in apartments are usually about 100. That, then, allows some other additions to the apartments, such as recreational areas, swimming pools, and so on, and if you