Wright v. McCubbin

Hammond, C. J., delivered the opinion of the Court. The appeal is by protestants below who seek to overturn a decision of Judge Turnbull sitting in the Circuit Court for Baltimore County granting a rezoning from residential use to commercial use that the Deputy Zoning Commissioner and the Board of Appeals had refused to grant on findings that there had been no substantial change in the character of the neighborhood and the site was inappropriate for the intended purpose. The land involved is on the east side of Reisterstown Road opposite the Owings Mills Elementary School, and on it presently stand three frame dwellings, the owners of which have contracted to sell their properties to a supermarket chain for use as the site of a small shopping center. The appellants are neighboring property owners whose children, in most instances, attend the school.

They adduced testimony before the Board as to the serious and potentially dangerous traffic problems that existed (and would be worsened if the zoning were granted), not only on Reisterstown Road generally but at and near the school because of its location on a hill, the shortness of its driveways, the type of its pupils and other factors. The applicants offered contrary expert evidence. On the question of change — no claim of original error is made — the applicants produced evidence, which is not challenged, that contiguous land to the north and to the ¹³ south and to the rear of the land here involved had been rezoned for hundreds, if not more than a thousand, apartments, and that many had been built and were being lived in. One of these rezonings involved land on Straw Hat Road some 600 feet off Reisterstown Road, some 44 acres of which were rezoned to R-A (garden apartments), and 3.5 acres to B-L (business local).

The land zoned B-L (which has not been utilized) was “within this apartment complex * * * and the intent of this zoning was to develop this strictly for services, beauty parlors, etc.” He knew this, said the applicants’ witness, because “I represented the applicant [in that case].” Essentially, if not entirely, the changes relied on to support the requested rezoning for a commercial service area were intensifications of adjacent or surrounding residential uses. The cases have held that this of itself is not enough. County Commissioners v. Fairwinds, 230 Md. 569 ; Wells v. Pierpont, 253 Md. 554 ; Miller v. Abrahams, 257 Md. 126 ; Chapman v. Montgomery County Council, 259 Md. 641 , 271 A. 2d 156 (1970); Hardesty v. Dunphy, 259 Md. 718 , 271 A. 2d 152 (1970) ; Cabin John Limited Partnership v. Montgomery County Council, 259 Md. 661 , 271 A. 2d 174 (1970) ; Harley v. Aluisi, 259 Md. 275 , 269 A. 2d 575 (1970). Even if there had been some significant evidence of substantial change in the character of the neighborhood it is established that change which would support a rezoning does not compel it absent probative evidence that no reasonable use can be made of the property in its current zoning classification.

Furnace Branch Land Co. v. Board of County Commissioners of Anne Arundel County, 232 Md. 536 ; Skipjack Cove Marina v. County Commissioners, 252 Md. 440, 453 ; Cabin John Limited Partnership v. Montgomery County Council, supra. There was no such evidence Mere and no