The Chatham Corp. v. Beltram

Hammond, J., delivered the opinion of the Court. Prescott, C. J., dissents. In another of a series of efforts to have a large tract of land owned by it in Ploward County rezoned to a higher residential density, the appellant asks us to reverse the action of Chief Judge Macgill by which he decreed that the action of the County Commissioners in granting, in large part, the requested rezoning was arbitrary and capricious and hence invalid in that it represented a mere change of mind from contrary action of the Commissioners a few months before, without change in conditions or in the character of the neighborhood in the interval. The appellant does not in its brief make a direct or frontal attack on Judge Macgill’s holding, rather it claims prejudicial error in his rulings on procedural and peripheral phases of the matter, such as his ruling that the appellee, a protestant before the Commissioners, had standing to bring the suit challenging the Commissioners’ action, his allowing the amended bill of complaint to be filed a day after the day last set in his order for the filing of an amended bill, his basic assumption that the change or error rule applied instead of the floating zone rule and, finally, his holding that there had been presented no evidence of change to support the Commissioners’ action.

On December 3, 1964, the Chatham Corporation acquired some ninety-nine acres of land in Howard County, 1400 feet north of U. S. Route 40 and 200 feet west of St. John’s Lane, ¹⁴² and eight days later applied for an amendment of the zoning map to reclassify the property from R-20 (one and two family detached dwellings on a lot of at least 20,000 square feet) to R-12 (one family semi-detached dwellings on a lot of 20,000 square feet unless both public water and public sewer are provided, when the lot can be only 12,000 square feet). A hearing was held on January 28, 1965. The testimony showed that the property which was largely surrounded by residential developments of R-20 lots was to be used to extend an adjacent development, also of R-20 lots, known as Section One of Chatham, which had been started in July 1964. To the south were twelve acres owned by a Roman Catholic Church on which was being built a complex of buildings, including a parochial school.

To the southeast was an area zoned for a shopping center and an area zoned for garden apartments. A tract of six acres of the ninety-nine acres was to be dedicated, with land of other owners, for a park. The six acres were to remain R-20, and another section in the northwestern part of the ninety-nine acres was to be developed in actuality as R-20 because of the road pattern of that area. The president and owner of the Chatham Corporation said that twelve houses had been built and sold in Section One of the development, that an agreement had been signed with the Metropolitan Commission and a deposit of $120,000 made to insure the construction of sewerage facilities in the area and similar arrangements were being made for water lines which already were installed in the existing part of the Chatham development.

There was to be no actual development until sewerage and water in fact were installed. If the R-12 zoning were granted, the Chatham Corporation intended to have an average lot of between 13,000 and 14,000 square feet which would allow some 220 lots in all, while the present zoning would permit only 165 to 170 lots and it would be “economically less advantageous” to develop the ninety-nine acres as R-20 than as R-12. A real estate expert testified that two acres along the north side of Route 40 had been rezoned for a shopping center and garden apartments, respectively, and that twelve acres had been sold to St. Paul’s Roman Catholic Church for a church and a church school since the zoning map had been adopted in 1961, ¹⁴³ and that water and sewerage would be soon available. These he felt were changes in the character of the neighborhood which would justify the requested rezoning.

In his opinion the land was suitable for any residential use—R-12, R-20, R-90. The Planning Commission’s report said that the requested R-12 zoning would not be in accord with the general zoning plan of Howard County but recommended approval of the request in light of the rezoning of the area to be used as a shopping center and the area to be used for garden apartments and the imminent availability of sewerage facilities and public water supply. On January 18, 1965, the Commissioners issued their opinion and order finding that the land was suitable for any residential development from R-12 to R-90 and noting that the imminence of sewerage facilities made the developer feel it more desirable to develop the tract into small lots, while the residents of nearby developments felt this would be detrimental to their homes on larger lots. From the evidence, said the Commissioners, the applicant had not shown a change in the character of the neighborhood which would require or justify the requested rezoning.

The application was denied. The Chatham Corporation promptly filed a bill for a declaratory decree, setting forth its purchase of the land on December 3, 1964, its application to reclassify the tract from R-20 to R-12, the approval of the reclassification by the Planning Commission, the denial by the County Commissioners, and alleging that the denial was arbitrary, discriminatory and illegal because the evidence showed that Chatham would be deprived of any reasonable use of the land, that since the request was for a change from one residential use to another the Commissioners erroneously required a showing of either original error or subsequent change in the character of the neighborhood and erroneously applied that test in denying the requested change and, finally, that the evidence clearly showed a change in the neighborhood, and praying that the zoning regulations of Howard County as they applied to the land were invalid and void. On May 10, 1965, Judge Macgill dismissed the bill, holding that the petition for reclassification from R-20 to R-12 was not analogous to an application for a special exception and that the error or change rule did apply in determining whether there ¹⁴⁴ should be a reclassification to a higher residential density, that the evidence fell short of establishing that the R-20 zoning would deprive the owner, of any reasonable use of its land, and that: “This Court finds itself unable to say, on the evidence, that the action of the Board of Commissioners was other than fairly debatable. It may well be that an affirmative action would have been justified by the evidence but that is merely another way of saying the same thing.

Cf. Missouri Realty, Inc. v. Ramer, 216 Md. 442 . The bill of complaint will be dismissed.” No appeal was taken from this affirmance by Judge Macgill of the Commissioners but Chatham was not yet through. On June 14, a few days after the thirty-day period for appeal had passed, it filed another application for reclassification with the Commissioners “to reclassify that parcel of land of approximately 99 acres * * * shown on a plat attached hereto * * * from R-20 (residential) to R-16 (residential) and R-12 (residential)”; 61.35 acres were to be R-12 and 29.254 acres on the western part of the tract adjacent to the houses on R-20 lots in the developments of Valley Mede, Brinkleigh and Howard Heights were to be R-16 (no doubt in an effort to mollify and pacify the protesting homeowners in those developments).

Approximately eight and a half acres were to remain R-20 (apparently in the same area that was to have remained R-20 in the first application) for use as a park and for actual development as R-20 because of the road patterns there. The Planning Commission again noted that the requested R-16 and R-12 zoning would not be in accord with the general plan of Howard County but again recommended approval of the changes asked for from lower to higher residential density in light of the adjacent acres rezoned for shopping center and garden apartment uses and the imminent availability of sewerage and water. Sec. 33.05 of the Howard County zoning regulations provides that if a petition for rezoning is denied, the Commissioners shall take no further action' or another petition “for the same or substantially the same proposal on the same premises” for eighteen months with a proviso that a subsequent petition for the same of substantially'the'same proposal on the same prem ¹⁴⁵ ises may be filed after six months from the date of the hearing last held “if accompanied by an affidavit setting forth new and different grounds, which the petitioner believes would be sufficient for the approval of the proposal contained in the petition” and the Commissioners, if satisfied that the “new and different grounds or conditions exist” or would bear on the consideration of the proposal and justify another hearing, may order one. No affidavit was submitted with the second application (whether because the making of the affidavit would have been an admission that the proposal was the same or substantially the same or because the affidavit that there were new or different grounds or conditions which would justify a different result could not truthfully be made, does not appear) but the Commissioners, after a preliminary hearing, ruled that “the proposal is not substantially the same” and ordered a hearing.

The president and an owner of Chatham testified to the location and extent of the areas proposed to be developed R-16 and R-12 and again said there would be no development until both sewerage and water were actually installed, which would be very soon. A zoning expert who testifies frequently in rezoning cases said the requested change was “a reasonable and proper request for this Chatham tract of land” and that in his opinion “the R-12 and R-16, graduating out * * * in relation to these two high density areas, in relation to the sewer which you are installing now and the water line, make this a logical place for this slight increase in density.” On August 26, 1965, the Commissioners’ opinion and order came down. It noted that the expert testimony was that the rezoning would be in conformity with good planning and would not have an adverse effect on surrounding properties, although they said the protestants produced evidence that the changes would be detrimental to the adjoining properties, that the Planning Commission thought that approval “would not be detrimental to the physical development of the general area” and would be a logical zoning step, and held that the Commissioners “being conscious and aware of the change, and constantly changing conditions in the general area of the subject property, and, in consideration of the advice and recommendations submitted by the Planning Commission of Howard County * * * [were] ¹⁴⁶ now of the opinion” that the 61.355 acres bordering on the areas zoned for the shopping center and garden apartments should be reclassified, as requested, to R-12 and that the 10.5 acres close to Valley Mede, Brinkleigh and Howard Heights should remain R-20 (perhaps in further mollification and pacification of the residents of those developments), and 18.754 acres (of the 29.254 acres requested) should be rezoned R-16, as applied for. Peter Beltram, the appellee, alone of many earlier protestants remained to fight on, a David still seeking to slay the corporate Goliath.

He filed a bill in the Circuit Court to nullify the Commissioners’ order of reclassification. A demurrer to the bill on the ground that the complainant had alleged no special damage entitling him to sue was sustained on December 15, 1965, “with leave to the said complainant to file his amended bill within fifteen days from the date hereof.” Counsel prepared the amended bill, alleging that Mr. Beltram owned a home close to the property rezoned which would be cheapened and depreciated in value a minimum of three hundred dollars because of the rezoning, and mailed it on December 29 about 4:30 p.m. in Baltimore in an envelope properly addressed to the Clerk of the Circuit Court and with proper postage, in the belief that, as is customarily the case as Judge Macgill took judicial notice, it would arrive the next day, December 30, and be filed in time. Through the fault of the post office, it did not arrive until December 31, 1965, when it was filed by the clerk. At the trial the defense of the Commissioners’ actions was conducted largely by Chatham which had intervened.

At the suggestion of Judge Macgill, it was stipulated by the County, by Chatham and by Beltram that the case would be tried and determined on the record before the Commissioners, including all exhibits (plats, general plans, the zoning regulations and so forth) in both the first and second applications, as well as the record of the first proceedings in court. Then counsel for Chatham said: “[W]e would like, however, to raise one point, in accordance with the case of Dubay v. Crane, 240 Md. 180 , at page 185” (which held that by reason of the distance of their residences from the property involved, would-be appellants from the action of a zoning body had no standing to sue). ¹⁴⁷ Counsel for Beltram then proceeded to begin to argue the case and when Judge Macgill discovered that Beltram, although a protestant of record, had not testified before the Commissioners that his property would be depreciated, he made it clear to counsel that there would have to be testimony on this point and granted a request that Beltram be allowed to