Agneslane, Inc. v. Lucas

• Decision Date: 12 October 1967
• Docket Number: No. 545,545
• Citation: 247 Md. 612,233 A.2d 757
• Parties: AGNESLANE, INC. v. Marshall L. LUCAS et al.
• Court: Maryland Court of Appeals

Page 612

247 Md. 612

233 A.2d 757

AGNESLANE, INC. v. Marshall L. LUCAS et al.

No. 545.

Court of Appeals of Maryland.

Oct. 12, 1967.

Donald N. Rothman, Baltimore (Lewis A. Kann, Gordon, Feinblatt & Rothman, William B. Davidson and Stuart R. Wilcox, Baltimore, on the brief), for appellant.

Thomas P. Neuberger, Baltimore, for appellees.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, McWILLIAMS, and FINAN, JJ., and ROBERT E. CLAPP, Jr., Special Judge.

FINAN, Judge.

In March of 1965, Agneslane, Inc. petitioned the Baltimore County Zoning Commissioner for reclassification of a fifty-four acre tract of unimproved land from R-6 (one or two-family residential use) to R-A (residential use apartments). In May, the deputy commissioner held a hearing and the following month he granted the reclassification. This decision was appealed to the County Board of Appeals which reversed the deputy commissioner and in a two-to-one decision denied the requested reclassification. Agneslane then appealed to the Circuit Court for Baltimore County at which time the appellees, Marshall L. Lucas, et al., entered appearances as intervenors, pursuant to Rule B9 of the Maryland Rules of Procedure. That court, on September 26, 1966, filed a memorandum opinion affirming the action of the Board of Appeals in denying the reclassification.

Appellant raises the same points here as it did in the court below. It contends that evidence before the Board of Appeals conclusively established the existence of original mistake in the comprehensive zoning map, adopted by the County Council in 1962, and substantial change in the neighborhood since that time. Although the Board's denial concededly does not amount to confiscation ¹ appellant would nevertheless have us hold that when such evidence of change or mistake is so conclusive that the issue is not fairly debatable, and a reclassification is shown to be in the public interest, the Board's refusal to grant the requested classification is both arbitrary and capricious and that this Court must reverse such a denial. For reasons which will be discussed at length, we hold that, considering the record as a whole the issue of original error or change was fairly debatable, there was sufficient evidence presented before the Board to support its conclusion, and therefore the court below correctly refused to reverse the Board's ruling.

In order to fully understand the evidence presented on the issue of mistake or change, it will be necessary to describe in some detail the area within which the subject property is located. The tract lies in the First Election District of Baltimore County, between the communities of Woodlawn and Westview, and is roughly rectangular in shape. The north side abuts on the right of way of the proposed interstate highway 70-N; the west side borders on Clarke Boulevard (also known as Woodlawn Drive); the south side borders the Johnnycake Junior High School; and the entire eastern line borders an existing R-6 zoned development known as Catonsville Manor. It should also be noted that the land south of Catonsville Manor, known as the Reiblich property, is undeveloped and zoned R-6, and that a petition for reclassification of this property to R-A was denied at the same time the Board denied the instant application. South of the junior high school, across Johnnycake Road is located another R-6 development, Westview Park. Across from the western side of the subject property, on the opposite side of Clarke Boulevard, still another undeveloped tract of R-6 land lies, and it extends all the way to the Baltimore Beltway. Out of this last tract, the County purchased a 3-acre site at the corner of Clarke Boulevard and Johnnycake Road and in 1965 it constructed a fire station there. Directly north of the property, across from the I-70-N right of way lies the huge Social Security Office complex, extending from I-70-N north to Security Boulevard. This highway runs east toward Baltimore and west about one-half mile to intersect the Baltimore Beltway. Between Carke Boulevard and the Beltway, on both sides of Security Boulevard, is a 500-acre tract zoned industrial and designated as the Meadows Industrial Park.

In order for the appellant to be successful on this appeal it must show that the record compiled at the hearing before the Board of Appeals, considered as a whole, presented such evidence of error in the original zoning, or substantial change in the character of the neighborhood of the subject property since the adoption of the comprehensive zoning map, as to so firmly establish the fact of change or mistake that its existence was not fairly debatable. The Court is of the opinion that the appellant failed to do this.

Appellant contends that although the two primary roads now bordering the land, Clarke Boulevard and I-70-N, may have been indicated on the 1962 zoning map, their exact locations were not certain and did not become certain until shortly before construction began sometime after 1962. Therefore the effect of these roads on the subject property was not considered by the County Council when it approved the map, and the subsequent reorientation of the tract toward the industrial and institutional uses north of 70-N constituted a material change. However, the evidence presented before the deputy zoning commissioner, including testimony from appellant's own witness, established that the county had precisely planned the route of the roads and that their locations were anything but uncertain. In fact, the original 1957 deed for the junior high school land from the owner of the reversionary interest in the subject tract, Ragan M. Doub, to the County Board of Education, made a call to the center line of the proposed Clarke Boulevard. It is highly unlikely that the County would have accepted the call had the exact location of the street been uncertain.

It is true that Mr. Charles Steinbock, Jr., a member of the Board of Appeals in 1962, testified that the exact locations of the two roads were not determined until after approval of the map. However, this testimony, together with the other evidence before the zoning commissioner, did no more than create a fairly debatable question of change, which may not be reviewed.

Arguably, the fact that I-70-N may not have been completely planned by 1962 is of little importance to the subject tract. That highway is, of course, a limited access highway. To enter it from the subject property, one must go north on Clarke Boulevard, then west on Security Boulevard, then south on the Beltway to the I-70-N interchange, total distance of more than a mile and a half. In fact, the greatest influence the highway might have on the property is to effectively insulate it from the industrial park and Social Security to the north. Appellant argues that, even though these two complexes were on the map in 1962, the expansion of Social Security in purchasing 53 additional acres for another office complex, and the rapid growth of the Meadows Industrial Park, both constitute an intensification of use which amounts to a change. This Court in Meginniss v. Trustees of the Sheppard and Enoch Pratt Hospital, 246 Md. 704, 229 A.2d 417 (1967) gave recognition to the intensification of institutional uses in a residential neighborhood as an element of change; however, Meginniss is readily distinguishable from the instant case, as there was no insulating line of demarcation between the institutional uses and the residential neighborhood as afforded in the case at bar. ²

The new firehouse does not amount to a change in the neighborhood. If such public safety services were confined to areas of higher intensity uses, large residential sectors would be virtually unprotected. Further, as Mr. Campbell V. Helfrich, an expert real estate appraiser, testified, the proximity of the firehouse to the residential homes has produced...