Trustees of McDonogh Educational Fund & Institute v. Baltimore County

Prescott, J., delivered the opinion of the Court. The plaintiffs below appeal from a decree that dismissed their bill of complaint, which alleged that the action of the appellee, Baltimore County, Maryland, [at the time of the action complained of the former county commissioners constituted the county council until the newly elected members of the county council took office, Section 1106 of the Charter of Baltimore County] in classifying property owned by the other appellee, McDonogh Construction Company (Construction Company), under a new comprehensive zoning map for the Third Election District of Baltimore County, was arbitrary and illegal; and sought to have said zoning classification declared invalid and to enjoin the use of the property for the purposes permitted by a B-M Business, Major or an R-20 Residential classification. Although the issues are few and their scope rather narrow, the record extract is quite voluminous, consisting of some 1,067 pages of testimony. It will, therefore, be necessary to summarize the same considerably in order to keep this opinion within reasonable bounds.

Since 1950, the Construction Company has been the owner of an 83-acre tract of land, lying at the northwest corner formed by the intersection of McDonogh and Reisterstown Roads in the said third election district. With the adoption of the first zoning maps for Baltimore County on January 2, 1945, a portion of the property in question (approximately 150 feet on Reisterstown Road) was zoned “E” commercial, ⁵⁵⁶ the only commercial classification which existed under those regulations, and the balance was zoned “A” Cottage Residential. The latter residential zone was the only zone under the original zoning regulations which was limited to cottage or detached house construction, and in that zone no lot could be less than 5,000 square feet in area. On March 30, 1955, the County Commissioners of Baltimore County repealed the regulations which had been in effect since January 2, 1945, and enacted a completely new set of regulations which established new zoning classifications and further provided that new comprehensive zoning maps would be adopted for each of the Election Districts of Baltimore County.

The new regulations also provided that during the interim, the then existing zoning maps would continue to be the official zoning maps for the county until such time as the new maps were adopted. In addition, the new regulations provided that all land which was shown as “E” Commercial on the then existing maps would automatically go into the “B-L,” Business, Local zone, which was one of three commercial zones provided for by the new regulations, and which was the most restricted of the three commercial zones so adopted. The new regulations further provided that all land which was zoned on existing zoning maps as “A” Residential would automatically become R-6 (residential lots of not less than 6,000 square feet area), pending the adoption of a new comprehensive zoning map for the particular district in which the land was located. The four corners of the intersection of Reisterstown and McDonogh Roads (comprising about 4y2 acres according to Respondents’ Exhibit I) had been zoned “E” Commercial (Craddock’s Lane being more or less of an extension of Mc-Donogh Road running in an easterly direction from the Reisterstown Road), when the original zoning map for the area was adopted in 1945.

However, a restaurant and cocktail lounge known as the Ten Mile House, located on the west side of Reisterstown Road and completely surrounded by the subject property, remained as a nonconforming use, as it had been in existence for many years prior to the adoption of zoning in Baltimore County. The same situation existed with ⁵⁵⁷ respect to an old stone building located on the east side of Reisterstown Road, directly opposite the Ten Mile House which had been used over the years as an antique shop. Of the four corners of the intersection, the northwest corner (on the subject property) was the only one which had been used commercially, being occupied by a roadside fruit and produce market. The subject property lies roughly one-half of the distance between Naylor’s Lane in Pikesville and Painter’s Mill Road —the boundary between the third and fourth election districts—which covers about three and one-half miles.

On the west side of Reisterstown Road between these points, there is 3,150 feet of R-10 zoning (10,000 sq. ft. per residence, with exceptions) ; 800 feet of R-20 zoning (20,000 sq. ft. per residence, with exceptions); 3,400 feet of R-40 zoning (40,000 sq. ft. per residence), 800 feet of which is the Woodholme Golf Course; 2,500 feet of B-L zoning (Business, Local); 2,900 feet of B-M zoning (Business, Major), which is the subject property; and 4,300 feet of M-R zoning (Manufacturing, Restricted). Thus, it is seen that about 57% of the frontage on the west side is zoned for business and manufacturing purposes, and some 23% is zoned for the same or higher density than permitted in R-20 Residential classification. On the east side of Reisterstown Road, about 60% of the frontage is zoned for business or residential uses of a higher density than that permitted in R-40 classification. In the ten years between 1930 and 1940, the population of the third district had remained static, showing an increase of only 741 persons.

In the ten-year span between 1940 and 1950, the population increase of the entire district was only 3,922 persons. However, in the seven-year period between 1950 and 1957 the population of this district more than doubled, showing an increase of 11,671 persons or at the rate of 105.4%, which was the second highest percentage of increase for any district in Baltimore County for that period. The highest percentage of increase was in the second district, 117.4%, the boundary of this district being y2 mile from the subject property and this district being part of the primary trade area of the proposed shopping center. The years be ⁵⁵⁸ tween 1945 and January, 1957, saw eleven tracts of land reclassified to manufacturing uses, four tracts reclassified for apartments, one tract reclassified for group homes, special exceptions granted on 19 tracts and 22 tracts reclassified for commercial uses—all by reclassifications on the Third District Map.

On April 18, 1956, the Baltimore County Planning Board delivered a master plan or land use plan to the zoning commissioner for his use in preparing and recommending to the Board of County Commissioners a comprehensive zoning map for the third election district. This master plan or land use plan contained information as to existing and planned parks, existing and planned highways and roads, existing and planned schools, and recommended zoning or land uses for the area.. At the time the master plan was transmitted to the zoning commissioner, a large acetate overlay, which covered the entire map or plan, had contained on the area covering the Suburban Club property (located on the east side of Reisterstown Road, approximately two miles south of the subject property in Pikesville) a symbol which indicated that the Suburban Club property was “to be reserved for a major business zone.” On May 8, 1956, prior to the hearing before the zoning commissioner on July 16, 1956, the Office of Planning transmitted a recommendation that approximately fifty acres of the Suburban Club site be added to the zoning map as Business, Local for use as a major or regional shopping center. This was accomplished by means of a letter of transmittal and a small acetate overlay, which delineated the boundaries of the business zone on the Suburban Club property.

After receipt of the zoning recommendations of the planning, board, which recommended that the subject property be zoned R-40, the zoning commissioner conducted an investigation and duly advertised a public hearing on the recommended map for July 16, 1956. At the hearing of July 16, 1956, the zoning commissioner announced that he would receive written petitions setting forth the proposals or objections of anyone interested in any particular property shown on the third district map within ten ⁵⁵⁹ days following the hearing. Prior to this time, it was proposed that the subject property be zoned R-40 in its entirety, completely eliminating the pre-existing commercially zoned and used property at the corner. There was testimony to the effect that R-40 zone was considered to be a reservoir zone out of which might come various uses of properties.

On July 16, 1956, the Construction Company submitted a petition to the zoning commissioner requesting that its property be zoned for a major shopping center and the construction of cottages on R-10 (10,000 sq. ft.) lots. After the zoning commissioner’s hearing of July 16, 1956, and prior to the submission of his final report to the county council on November 21, 1956, the zoning commissioner learned that the membership of the Suburban Club, most of whom were nearby residents opposed to the zoning, refused to agree to a sale of the club property for use as a shopping center, even if so zoned. When the zoning commissioner learned that this property was unavailable as a possible future business site, he testified that he made a survey of the entire third district and checked with the Department of Public Works in regard to the subject property. He finally decided to recommend to the county council that the Construction Company’s property be classified as B-M and R-20, because, in his opinion, the business classification “would be less objectionable [there] than any other place”—it was practically undeveloped as the “development hadn’t moved out that far.” The zoning commissioner accordingly sent his report and proposed new comprehensive plat for the third election district to the county council, which, after public notice and public hearing thereon, adopted the same with the Construction Company’s property classified as indicated above.

Whereupon, the appellants instituted suit, claiming that the action of the council was arbitrary, capricious, discriminatory and illegal. The principal contentions of the appellants are that the action of the legislative body in classifying 42 acres of the Construction Company’s property as B-M and the 41 acre tract as R-20 (we shall subsequently see that in reality there were only 32 acres zoned R-20) on the new comprehensive map ⁵⁶⁰ for the third election district was arbitrary and capricious; that these classifications constituted illegal spot zoning; and that the requirements of Section 532(a) of the 1955 Code for Baltimore County relating to the reduction of “congestion in the roads, streets and alleys” were not complied with. They acknowledge that whether the adoption of a new land use map constitutes zoning or rezoning, a heavy burden of overcoming the strong presumption of validity of the legislative action in making the classification rests upon those attacking it; but argue (before our decision in McBee v. Baltimore County, 221 Md. 312 , 157 A. 2d 258 ) that the action of Baltimore County in adopting new comprehensive land use maps for the several districts of Baltimore County constitutes rezoning rather than zoning, and, if this be so, then the proponents of the rezoning must, in order to sustain the rezoning, overcome the presumption of correctness in the original zoning by showing either a change in the neighborhood or a mistake in the original zoning. 1 In Hewitt v. Baltimore County, 220 Md. 48, 57 , 151 A. 2d 144 [a case which involved the new comprehensive map for the eighth district], we stated: “In Huff v. Board of Zoning Appeals, supra, 214 Md. at p. 52, we said that ‘[t]he County Commissioners determined in 1954 [Ordinance passed in 1955] to rezone the whole of Baltimore County.’ In Fuller v. County Commissioners, supra, [ 204 Md. 168 ] we did not draw a distinction between zoning and rezoning. In the present case, although the action of the County Commissioners would appear to be (as stated in the Huff case) rezoning, rather than zoning, we think that the same result would be reached in either aspect of the case.” In St. Mark’s, Etc., Church v. Doub, 219 Md. 387, 397 , 149 A. 2d 779 , we assumed, without deciding, that the “change or ⁵⁶¹ mistake” rule applied to comprehensive rezoning.

However, in the McBee case, supra, [a case involving the ninth district] the questions of the presumption accorded a new comprehensive zoning and the applicability of the “change or mistake” rule to such zoning were flatly answered. We held that Baltimore County, in legislating a new zoning for the whole county, was exercising a plenary power delegated by the General Assembly; and when a new comprehensive plan or map, designed to cover a substantial area, was adopted, it was entitled to the same presumption of correctness as an original zoning, and the so-called “change or mistake” rule applicable to piecemeal rezoning cases was not controlling. The appellants seem to concede that the map here involved is “comprehensive.” Indeed, it seems they must. There can be little doubt that it. covers a substantial area; that it was given careful consideration and adopted after a long and extensive study; and that it was designed to control and direct the use of land and buildings according to present and planned future conditions, so as to accomplish, as far as possible, the most appropriate uses of land consistent with the public interest and the safeguarding of the interests of the individual property owners.

Huff v. Board of Zoning Appeals, supra, 214 Md. 48, 59 , 133 A. 2d 83 . Cf. Hewitt v. Baltimore County, supra; McBee v. Baltimore County, supra; 8 McQuillin, Municipal Corporations (3rd Ed. Rev.), Section 25.79. We must, therefore, examine the classifications of the 42 acre parcel and the 41 acre tract with their presumptions of validity, and see if the appellants have clearly made out a case of invalid spot zoning relative to either parcel, or that the council was arbitrary or capricious in making the classifications, subjects which, to a certain extent, intertwine.

They argue that the subject property and the properties of the appellants lie in what they term a “greenbelt” ranging from one to four miles in width, extending from Randallstown to Towson; that the Baltimore County planning authorities recommended that the subject property be zoned R-40; that the shopping needs of the residents are and will continue to be adequately served by the present facilities; that the population ⁵⁶² of the third district is not now, nor will it be in the future, sufficient to support a regional shopping center; that all of the area surrounding the subject property is zoned R-40; that the zoning complained of will permit a breakdown of the area to an ultimate density of population in excess of the sewer capacity of the Master Plan for the area; and that the amount of commercial zoning provided for between McDonogh Road and Reisterstown was far in excess of any need for commercial development which could ever occur in the area. They, of course, offered evidence in an attempt to sustain these arguments. However, as we have indicated above, the record discloses that a large percentage of the land fronting on Reisterstown Road in the area is zoned for business uses or uses of a higher population density than R-40. The business district of Garrison is close by to the north.

The large acreage owned by the appellant, Trustees of McDonogh Educational Fund and Institute, etc., in the main part, is situated some three-quarters of a mile to the west of the subject property in another election district, which has not as yet had its new comprehensive plan adopted. This means the property is at present zoned R-6. It is true that the planning board (or its staff) originally recommended a low density classification for the subject property. However, upon further deliberation after being confronted with the unavailability of the Suburban Club property, the board saw “merit in the future possibility of a major commercial development in this area (the vicinity of Reisterstown and McDonogh Roads),” and made certain recommendations to the county council if such a commercial development were authorized.

The recommendations of the planning board and its reasons therefor are, of course, entitled to be weighed and considered in determining the question of whether the action of the county council was arbitrary or capricious ; but its suggestions to the zoning commissioner amounted to no more than recommendations to him, Fuller v. County Comm., 214 Md. 168, 171 , 133 A. 2d 397 , and his final report to the county council, in turn, constituted his recommendations to them for their approval or disapproval. St. ⁵⁶³ Mark’s, Etc., Church v. Doub, supra, 219 Md. at p. 392 ; Fuller v. County Comm., supra. It was the responsibility of the county council to make the final determination as to the manner in which the boundaries, districts, etc., should be established. We turn now to the claim that the population of the third district is not now, nor will it be in the future, sufficient to support a regional shopping center.

In the comprehensive zoning of an entire county, when it is done, as here, by successive comprehensive maps of different districts, each district is not considered as an individual and independent entity in regard to its needs and what its population, alone, will support; the zoning authorities are at liberty, and it is their duty, to consider the overall situation of the surrounding areas. There was testimony to the effect that the subject property was located geographically in about the center of the second, third and fourth districts whose combined populations in 1957 constituted about 57,000 people; that a population of some 60,000 people, within a ten-minute driving radius, was necessary to support a major shopping center; that the population of these districts by 1964 should be 85,000 persons, and by 1967 probably would increase to 97,000 people; that possibly this population would be within the ten-minute driving radius; that in an area approximately ten miles square, in which the subject property was located, there was not a single supermarket; and that “this neighborhood, in the next ten years, is going to yield a tremendous or very large expansion of population,” and the subject property is “an excellent location for a regional shopping center” because of accessibility, population, purchasing power and quality. As of January 16, 1957, there already existed a sixteen inch water main in the Reisterstown Road, immediately adjacent to the property of the McDonogh Construction Company, and the Gwynns Falls Interceptor (sanitary sewer) had been extended as far as Mt. Wilson, which was approximately a mile down the ravine from the subject property and easily accessible.

Plans were in existence to increase the water main to 36 inches. The property of the Construction Company could be sewered, as of January 16, 1957, by extending a sub-inter ⁵⁶⁴ ceptor from Mt. Wilson to the subject property. Moreover, as of January 16, 1957, Baltimore County was under a definite commitment to the State Department of Health to extend the Gwynns Falls Interceptor to Reisterstown.

In addition, the extension of the sewer line to Reisterstown was included in the county’s six-year capital improvement program as of that date and contracts were let for its construction on March 18, 1957. The sewer line interceptor was designed to take care of between