Ark Readi-Mix Concrete Corp. v. Smith

• Decision Date: 07 October 1968
• Docket Number: No. 280,READI-MIX,280
• Citation: 246 A.2d 220,251 Md. 1
• Parties: ARKCONCRETE CORPORATION v. Merle SMITH et al.
• Court: Maryland Court of Appeals

Page 1

251 Md. 1

246 A.2d 220

ARK READI-MIX CONCRETE CORPORATION v. Merle SMITH et al.

No. 280.

Court of Appeals of Maryland.

Oct. 7, 1968.

Joseph K. Pokorny, Towson (Samuel Kimmel and Kimmel & Pokorny, Towson, on the brief) for appellant.

M. Michael Maslan, Baltimore (Jerome W. Taylor, Towson, on the brief) for appellees.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SMITH, JJ.

MARBURY, Judge.

This is an appeal by one of the defendants, Ark Readi-Mix Concrete Corporation (Ark) from an order of the Circuit Court for Baltimore County, dated July 20, 1967. The chancellor, Judge John E. Raine, Jr., ordered that the Northeastern Planning Area Comprehensive Land Use Map (map) adopted by the Baltimore County Council on August 1, 1966, be declared null and void with respect to that portion concerning Ark's property and that the Council instruct the Planning and Zoning Department and its director to change that part of the map concerning Ark's property from M. L. (Manufacturing, Light) to the previous zoning of R. 6 (Residence, One and Two-Family).

The property involved consists of a two and one-half acre tract, part of which has been operated as a sand and gravel plant under a non-conforming use since 1952. Also, for many years prior to 1945 when the original zoning was established, the property had been used for sand and gravel operations. On July 31, 1963, Ark filed a petition with the Zoning Commissioner of Baltimore County to have the property zoned from R. 6 to M. L. After the Zoning Commissioner denied this request, the case came before the Baltimore County Board of Appeals on April 15, 1965, and May 18, 1965. This Board, after hearing extensive testimony, overruled the Zoning Commissioner and granted the M. L. zoning. Protestants, who are the appellees in this case, appealed the Board of Appeals' decision to the Circuit Court for Baltimore County on November 8, 1965. The case was heard by Judge Walter M. Jenifer, who affirmed the Board's decision in a comprehensive and lucid opinion dated July 28, 1966.

Meanwhile, the Zoning Commissioner of Baltimore County and the Planning Board had been reviewing and updating planning maps for the county. The map concerned with the area in question is the Northeastern Planning Map. This map, which covered the 14th and portions of the 9th, 11th and 15th Election Districts, was offered for public hearings but there was no discussion covering the change in zoning from R. 6 to M. L. with reference to Ark's property. After these hearings, the map was then proposed to the Baltimore County Council for its consideration and adoption on August 1, 1966. However, on July 28, 1966, Judge Jenifer issued copies of his opinion and order to the Zoning Commissioner and the Planning Board of Baltimore County. His findings were reported to the County Council by George Gavrelis, the Director of Planning and Zoning of Baltimore County, on August 1, 1966. Mr. Gavrelis advised the County Council that although he personally did not approve of M. L. zoning in the particular area, in order to protect the map so that this would not beget other changes and bowing to the opinion of others, he recommended that the County Council change the land in question from R. 6 to M. L. The Council, having previously visited the area, and after deliberations, adopted the map, which included the property here involved in the M. L. zone.

On August 26, 1966, the protestants appealed Judge Jenifer's decision to this Court, and four days later they filed a bill of complaint in the Circuit Court for Baltimore County asking that the Council and the Department of Planning and Zoning be enjoined from adopting the portion of the map showing M. L. zoning granted to Ark. An amended bill making Ark a party to the suit was filed on January 12, 1967. After the case was heard on April 24, 1967, Judge Raine declared that the map was null and void with respect to Ark's property. Appellees dismissed their appeal from Judge Jenifer's opinion and order granting the piecemeal rezoning as being moot, since Judge Raine's order requiring the map amendment removed the property involved from the M. L. classification and restored its R. 6 zoning. Ark has appealed from Judge Raine's order.

Zoning is a legislative function, and when reviewing the acts of the zoning authorities, the duty of the courts is to decide whether such action was arbitrary, discriminatory or illegal. Trustees of McDonogh Educational Fund & Institute v. Baltimore County, 221 Md. 550, 158 A.2d 637; Mont. County Council v. Scrimgeour, 211 Md. 306, 127 A.2d 528; Kroen v. Board of Zoning Appeals, 209 Md. 420. 121 A.2d 181. A court cannot substitute its judgment for that of the zoning authorities if their decision is supported by substantial evidence and the issue before them is fairly debatable. Bosley v. Hospital, 246 Md. 197, 227 A.2d 746; Missouri Realty, Inc. v. Ramer, 216 Md. 442, 140 A.2d 655; Offutt v. Bd. of Zoning Appeals, 204 Md. 551, 105 A.2d 219. When a comprehensive map designed to cover a substantial area is adopted, it is entitled to the same presumption of correctness as an original zoning. Mandel v. Bd. of County Com'rs, 238 Md. 208, 208 A.2d 710; Town of Somerset v. County Council, 229 Md. 42, 181 A.2d 671;...