Turner v. Hammond

McWilliams, J., delivered the opinion of the Court. Captain John Smith sailed up the Wicomico River in 1608. When he came to what is now Salisbury he found a small community of Nanticoke Indians. They drifted away to the north in the face of later incursions of the white settlers.

A century or so later their displacement seems to have been accomplished. In the summer of 1732 the Assembly passed an act “for the erecting a Town at the Head of Wiccomoco River ... in a Fork thereof” and empowering five commissioners to buy, for that purpose, a tract of 15 acres lying “most convenient to the Water.” Our present concern is another 15 acre tract (the property) about a mile farther north but “convenient” to the very same “Water.” 1 ⁴³ Differences of opinion about the use of the property have engendered a commotion the Nanticokes would likely have thought passing strange if, indeed, it could have been within their powers of comprehension. We have filed with this opinion a part of the official map of Salisbury, reference to which is essential if the facts and circumstances of this case are to be understood. North has been indicated; the scale is 1" = 1000'; the hachured area between Union and Hickory Avenues represents the property.

It will be noticed that the corporate boundary line of the City of Salisbury, the easterly shore of Johnson’s Pond, and the southwestern boundary of the property are coincident. The area enclosed by Union Avenue, Emerson Avenue, Handy Street and the shore line is for the most part unimproved. In the area enclosed by North Division Street, Hickory Avenue, the property, and Union Avenue are single family dwellings, some as old as 60 years. St. Peter’s Episcopal Church owns both the property and the abutting Parsons Cemetery.

It is conceded that the zoning classification of the property is Residential B. 2 34567Apartment houses are permitted in ⁴⁴ residential districts provided a special use exception is granted by the Board of Zoning Appeals (Board). The criteria to be applied by the Board are set forth in Section 54: “Buildings and uses, as special exceptions, limited as to location, and especially in the locations described below in this section, are permitted by the terms of this ordinance, if the board of zoning appeals finds, that in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property permitted by this ordinance and provided such exception is approved by the board: 12. Apartment houses in residential districts as follows: a. A group of apartment houses b.

A housing project of a group of apartment houses to be constructed as a unit according to a comprehensive well planned design, with adequate provisions for access of light and air to the apartments and to neighboring ⁴⁵ properties provided there is substantial compliance with the population density regulations of the district, and further provided that the aggregate area of the open yard spaces is substantially equivalent to the minimum aggregate area required for these buildings in this district and on the further condition that the buildings shall collectively and individually comply with front and rear yard regulations and that there shall be not less than thirty feet between buildings, and the buildings not less than thirty feet from adjacent property lines.” (Emphasis added.) The appellant (Turner) proposes to build on the property 197 garden apartment units in 12 groups of buildings, 67 in all, each two and one-half stories high. The plans call for 49 single bedroom units, 100 two bedroom units and 48 three bedroom units. On a parcel 120 feet by 450 feet along the southeastern boundary beginning at Union Avenue and extending 100 feet beyond Brooklyn Avenue there will be six single family dwellings. This, it is said, will provide a buffer zone between the apartment project and the existing dwellings.

To this end Turner obtained from the church an option to purchase the property; subsequently he applied for the special use exception required by the ordinance. The Board, after a hearing, adopted the resolution set forth below, verbatim. It is at once obvious that the Board used a prepared form. "Upon a motion by Verdin Cantrell seconded by Walter Phillips and duly carried, the Board _denied_ the request for a Special Use Exception in the within case and as its reason for so doing states as follows: "'We find from a preponderance of the evidence that the proposed use of this property for an apartment project consisting of 197 units ⁴⁶ 1. will er-will-net substantially affect adversely the uses of adjacent and neighboring property; 2. will er-wili-Het substantially affect adversely persons residing, studying, working, or other-lands or wise occupying / buildings adjoining or in the vicinity of the project area; 3. will-er will not be compatible with the character and use of buildings adjoining or in the vicinity of the project; 4. will er-will-net affect adversely the safe and efficient movement of traffic in and through the area by the use of existing street patterns; 5. has-er has not been so designed to minimize adverse affects on adjacent properties and the surrounding neighborhood; 6. that-publie-utilities-eaH-er-eaH-ne-fe-eeenemieally-fee-extended-te-fche-s-ihe-ef-the-Brejeet-j 6 ?. that development in the neighborhood since the not zone plan and ordinance were adopted has / been such as to promote a change toward the proposed type of development.

"Thus by virtue of the requirements of Section 53 and 54 of the Ordinance No. 789 of the City of Salisbury, Maryland, the above findings ’require that the Special Use Exception be _denied_. /s/ Michael J. Hynes /s/ Oris W. Horsey Sr. /s/ William H. Bull /s/ Verdin S. Cantrell /s/ W. L. Phillips " ⁴⁷ On 7 February 1973 the Circuit Court for Wicomico County, Pollitt, J-, affirmed the decision of the Board. From that order Turner has appealed. We shall reverse. The hearing before the Board on 9 March 1972 appears to have been attended almost exclusively by opponents.

Their reactions, whether favorable or unfavorable, were both vehement and vocal. There was received in evidence, before the testimony, a letter from the Wicomico County Fire Marshal, endorsed by the Deputy Fire Chief of the Salisbury Fire Department, stating that their joint inspection of the property enabled them to report that “1. The area in question would have adequate access to the site and within the site for fire fighting purposes. 2. There will be installed adequate water mains and fire hydrants for fire fighting equipment. 3.

The proposed type of construction would lend little if any degree of hazard to other apartments or properties.” Turner, the first witness, described the project in general terms. Brick veneer would be used in the construction of the apartment buildings and each of the six single family dwellings would cost from $22,000 to $25,000. The apartment buildings, he said, would cover about 11.5 percent of the ground, the project would be conventionally financed, insured by FHA, and there would be no rent subsidies of any kind. John M. Hilliard, an architect, testified he prepared the plans submitted to the Board.

He said there were “close to 400” parking spaces, although the plans called for only 264. Cross-examination developed some uncertainty in respect of statistics but we think, in the circumstances, it had little, if any', significance. What follows is an excerpt from the record: “Mr. Creamer [Director of the Planning Office]: May we interrupt long enough to pass a pad around for these people . . . ⁴⁸ “Mr. Hynes [Chairman of the Board]: Oh, yeah. We are going to pass a pad around for all those people that are present and we’d like you to put next to your name whether you are for or against the variance this evening. [Emphasis added.] “Mr. Creamer: People’s address. “Mr. Hynes: Oh yes.

Put your address down too. That’s very important. We’ll disregard a name that hasn’t got a location next to it. Have you got a pencil and pad there. [Emphasis added.] “Mr. Creamer: Merrill [Merrill J. Burhans, Jr., Supervising Planner] has it. “Mr. Hynes: Merrill, why don’t you start up in the box there.

Want to call your next witness, Mr. Fox.” In the transcript of' the record there are six pages of signatures, a total of 204 according to a note on page one, all registering opposition. The addresses given suggest the signers reside anywhere from several hundred yards to a mile or two from the property. Indeed one has trouble understanding how some of the signers can be affected one way or another by the project Carter Bertizon, a builder, testified that he expected to build the structures, that the cost would be about $2,500,000, that he would use local labor and that construction would be finished in two years. Victor Stephens, a Salisbury realtor, was the next witness.

He recited in considerable detail his investigation of the effect of apartment projects, similar to the proposed project, on the value of existing properties in the vicinity of such projects. He .gave it as his “definite opinion that in all honesty a project of this sort should not be expected in any way to lower the value or harm the value of nearby residential property.” Harold Fulton has been Assistant Superintendent of the Wicomico County Schools since 1959. He said all of the elementary schools “operate at near capacity.” If there is an increase in the number of children “we have to make some ⁴⁹ adjustments to take care of them”; it is the responsibility of the school system, he added, “in some way, to make provisions for the children.” Questioned about the traffic problem he replied, “if there is a problem, sir, this [the project] surely would not diminish the problem.” Shifts in population require changes in school district boundary lines “almost every year” but, he said, “the children who live the closest to the school are the least affected.” He laid it down quite firmly that the school system would take whatever steps might be necessary to accommodate whatever children came to live on the property. Phillip C. Cooper is Salisbury’s City Engineer and Director of Public Works.

In respect of water he said it was “perfectly feasible and possible to extend adequate size mains to serve this development and in fact, improve the service in the area.” He explained in some detail how the improvement would come about. In respect of sewer service he said it would be “feasible and possible” to provide adequate service to the area. The project, he added, would generate sufficient revenues to foot the bills. That “the area of North Division Street has traffic problems” is common knowledge; he went on to say, however, that “anything that happens in the northwest section of the city would to some degree affect the traffic problems. ...

We have conditions in North Division that would be affected adversely by any major increase in new homes in this area but we do feel that there are some corrective measures which can be taken to minimize the inconvenience. I think a competent traffic person would not say that these additional homes would create an impossible situation. It would aggravate an already difficult situation unless improvements are made.” (Emphasis added.) He thought about $30,000 spent on street improvements would '‘substantially help the movement of traffic in the area.” Asked about the availability of water for fighting fires he said the “system is reasonably adequate all over town.” He thought there might be problems on the dead-end streets (London and Brooklyn Avenues) but, of course, those problems would be solved if the service is to be improved as a result of the project. ⁵⁰ Asked if he was aware of the fact that the residents of Brooklyn, London and Boston Avenues, having “few off-street parking facilities,” were obliged to use the street for parking, Cooper replied that most of them do “have an off-street entrance.” Moreover, he said, “there are alleys . . . and garages available for parking.” The last witness to testify on behalf of Turner was Dr. Walter Worthington Ewell, a consulting engineer whose expertise in the field of highway and traffic engineering was not challenged. In Dundalk Holding Co. v. Horn, 266 Md. 280, 291 , 292 A. 2d 77 (1972), we said he was “well-qualified.” He said he and his associates had made an extensive study of traffic in the area; his testimony and the exhibits he submitted seem to support his statement.

He said that if traffic to the project from Union Avenue and from Union Avenue to the project could be prohibited, except in respect of emergency vehicles, to which Turner is quite agreeable, the increase in traffic on London and Brooklyn Avenues would be from 30 to 50 vehicles per hour. He characterized this as negligible. He gave it as his opinion that Division Street, at London and Brooklyn Avenues, is capable of absorbing whatever increase in traffic the project might generate. William B. Briddell was the first witness produced by the appellees.

His house is on Emerson Avenue about 500 yards northeast of the property. He produced a list of 22 houses built within “the past year.” Half of them are north of the State Hospital, at least a mile away. Not more than two or three of the others are closer than one-third of a mile. His only complaint, really, had to do with traffic on Union Avenue.

The next witness, Gorman Hammond, has lived on Union Avenue opposite the elementary school for 25 years. He spoke of the “tremendous increase” in traffic on Union Avenue. He can park his car in his own driveway. He would rather not live near apartment houses but, he said, he could not afford to buy another house having “space and living conditions” equal to his old house.

He agreed there would be little, if any, effect on Union Avenue traffic if residents of ⁵¹ the project were denied access to it. His opposition continues, unabated, however. Robert Cannon has lived on Riverside Drive for about ten years. His house is a mile and a half to the south of the property.

About six years ago (1964) the Oak Hill Townhouse project was built in the area between his house and the river. He thought it consists of 90 units. He recalled that a variance had to be obtained so as to allow a density greater than that allowed by the zoning classification. In the summertime, he said, there seems to be “two, three or four apartments that have hi-fi’s going” and “ball games [are] going” on in the “back yard which backs up to [him].” He was of the opinion that “the value of . . . [his] property has decreased in value as a result of the apartments being built there, because of the increase of density, living conditions and the brick walls.” He did not say how much his property had decreased in value.

He did speak of a house on the other side of Riverside Drive which Stephens testified was bought in 1966 for $22,000 and sold in 1970 for $34,000. Cannon said he “understood” the owner paid $33,500 for it and sold it five years later for “$35,000 to $36,000.” He conceded that all he knew about inflation was “what [he] read in the newspapers.” He continues to live in the Riverside Drive house. Why Robert Martin was called to testify for the appellees the record does not reveal. He lives on Emerson Avenue a little beyond Briddell.

His testimony amounts to this, and only this — he is unhappy because his water pressure is low. Alvin Hubbard has lived on Brooklyn Avenue between Boston Avenue and North Division Street for 20 years. There is an alley in the rear of his property running to Boston Avenue which he said is available to him but which is presently impassable by automobile because of fences and flower gardens put there over the years by himself and his neighbors. He is opposed to the project because he fears he may not be able to park his automobile in front of his house.

While he could not “give a true guess” as to whether the project would depreciate his property he said it would cost an unspecified amount to open up the alley. The aerial photo ⁵² in the transcript suggests it would need to be opened for a distance of but 50 to 60 feet, the cost of which could hardly be prohibitive. Rita Meise lives on Livingston Street. She discussed in some detail the traffic on Union Avenue and the difficulties caused by the school buses.

She is opposed to the project because in the first place she doesn’t “see a need for it” and in the second place she thinks “the area can live without it.” The next witness, Emil Hubeny, lives in the small block bounded by North Division Street, Union Avenue, North Salisbury Boulevard and Amber Street'. He said every morning when he leaves for work he has “to wait 5 or 10 minutes to get out.” “The noise now from the Boulevard is almost unbearable” and, he declared, at night the trucks “hit their air brakes” trying to stop for Naylor Street. He said the project would “devaluate” his property but he was not asked to say how much the devaluation would be nor did he suggest any amount. As a volunteer fireman he expressed' doubt about “getting that equipment down these narrow streets in the area.” The president of the North Salisbury Elementary School Parent-Teacher Association, Dean Wells, was the next witness to appear.

He lives in Pine Knoll Terrace which is four miles north of the property and three miles north of the city line. His children are bused to the school. He was allowed to read into evidence the following letter: “Gentlemen: At the regular' meeting of the North Salisbury School Parent and