Bishop v. Board of County Com'rs of Prince George's County

• Decision Date: 31 January 1963
• Docket Number: No. 88,88
• Citation: 187 A.2d 851,230 Md. 494
• Parties: Forrest L. BISHOP et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY et al.
• Court: Maryland Court of Appeals

Page 494

230 Md. 494

187 A.2d 851

Forrest L. BISHOP et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY et al.

No. 88.

Court of Appeals of Maryland.

Jan. 31, 1963.

Marion E. West, Suitland (West & Venables, Suitland, on the brief), for appellants.

Robert B. Mathias, Upper Marlboro (Russell W. Shipley, Lionell M. Lockhart and Joseph S. Casula, Upper Marlboro, on the brief), for Board of County Com'rs.

Carlyle J. Lancaster, Hyattsville (Welsh & Lancaster, Hyattsville, on the brief), for Suburban Homes, Inc.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY, and SYBERT, JJ.

BRUNE, Chief Judge.

This is an appeal from an order of the Circuit Court for Prince George's County affirming the action of that county's Board of County Commissioners, sitting as a District Council, which rezoned the property in question owned by the appellee, Suburban Homes, Inc. (Suburban) from an R-R classification to an R-18 (Multiple Family, Low Density Residential) classification.

The subject property in Prince George's County contains 57.34 acres located on the southwest side of, and fronting on, Riverdale Road about 2200 feet northwest of the intersection of that road with Defense Highway, otherwise known as State Route 450. The property, an irregular shaped tract, has a Riverdale Road frontage of about 1513 feet and extends back from that Road a depth of about 1450 feet where it adjoins single dwelling property which fronts on Finn's Lane. The tract is virtually surrounded by R-R or R-55 property (including the housing developments of Greenbriar, Lanham Dale, Kidmore Park, Martin's Woods and Lanham Woods) except for the extreme southeast corner which adjoins or almost adjoins the northwest corner of a C-1 (commercial) tract fronting on Defense Highway. Across Riverdale Road from the subject property Suburban was engaged in building a 2,000 home housing development known as Carrollton, with 1200 homes having already been completed. The subject property was undeveloped and heavily wooded along the outer edge, but the interior had once been used as a gravel pit.

On August 20, 1960, the appellee, Suburban, filed application for rezoning the property from R-R (Rural, Residential) to R-18. This application became No. A-3809. On the same date the president and principal stockholder of Suburban also filed a rezoning application for a 17.21 acre tract located on the northern side of Riverdale Road, adjoining Carrollton, located 600 feet northwest of the intersection of Riverdale Road and Defense Highway, and distant from the subject property by 300 feet at the points where the two tracts were nearest each other. The Maryland-National Capital Park and Planning Commission filed reports recommending denial of both applications, stating with regard to the subject property of A-3809 that the request was 'not in accordance with the proposals contained in the * * * Master Plan adopted by the Commission for this area' and that a multi-family development of the property would 'not secure a harmonious and desirable adjustment to the surrounding and proposed land use pattern.' The Commission concluded that the creation of a spot of relatively high density zoning on the subject property would serve no purpose that could be considered in the interest of public welfare and safety.

Hearings were held by the Board on both applications on December 21, 1960, and many residents of the area, including the appellant, Bishop, who lived northeast of the property at the intersection of Riverdale Road and Geoffrey Avenue, appeared as protestants, claiming that neighborhood conditions had not changed to such an extent as would call for rezoning of this particular tract, that the property was needed for a school, and that multi-family dwellings at this spot would lead to extreme traffic congestion in the area. Testimony in favor of the change was to the effect that the apartments to be built would not adversely affect the surrounding homes, that the terrain of this property was in places too steep for the building of single family dwellings and was best suited for multifamily apartments, and that such apartments were needed in view of the development of the area.

On the date of the hearing the Board approved application A-3810, but took A-3809 under advisement and subsequently granted it, without further hearing, on March 14, 1961. Bishop and others then filed a petition for review and the Circuit Court reversed the Board's decision on July 13, 1961, holding that there was 'insufficient evidence in the case of a basic mistake in the original zoning or of a substantial change in the character of the neighborhood to form a basis for reasonable debate on either point.' The trial judge did not believe that the testimony concerning the terrain was sufficient to justify a conclusion of error in the original zoning. On July 17, 1961, appellee Suburban filed a petition in the Circuit Court for a new trial or for a rehearing on the basis that at the time of the Circuit Court review the Master Zoning Map did not show the rezoning of the 17.21 acre tract to a C-1 classification. The Court remanded the matter to the Board for further proceedings and directed that at such proceedings 'testimony and additional evidence shall be confined to the zoning change alleged in the Petition * * * and its effect on the property in question.'

In proceedings held on October 18, 1961, the Board heard testimony that the C-1 rezoning action under application A-3810 had a direct and relevant bearing on the subject property, that it evidenced a change in the neighborhood makeup which would be partially stabilized by rezoning the subject property in the R-18 classification, that the granting of petition A-3810 extended the commercial classification to within 300 feet of the subject property and that the rezoning of the subject property would tend to check the spread of the slowly increasing commercial classification which was to be expected to follow and would thereby protect the single family areas behind the subject property. The Planning Engineer for the County Regional Office of the Maryland-National Capital Park and Planning Commission introduced into evidence the report of the Commission which still recommended rejection of the application on the basis that the rezoning of the 17.21 acre tract was not a new factor which could form a basis for a change in the Board's decision. On January 16, 1962, the Board determined that the additional evidence did 'not justify any modification, alteration or reversal of [its] previous decision,' which had rezoned the subject property. This action was affirmed by the Circuit Court on the basis that the testimony regarding the effect of the rezoning of the 17.21 acre tract provided 'some valid basis on which the District Council could reach the conclusion which it did' and that therefore 'the matter was reasonably debatable.'

At the first hearing on review the Circuit Court found that there was no evidence of an error in original zoning which would justify the change. We think that this conclusion was correct and we shall confine our consideration of the case to the second question--was there a sufficient change in the neighborhood to make the question of rezoning fairly debatable and so to support the action of the Board? We state the question in this way because the trial judge expressed the view--and we agree with him--that the weight of the evidence was against the rezoning. The case is on the borderline as to whether there was or was not enough evidence of changed conditions to bring the case within the area of fair debatability.

One question of law which was raised in the trial court has not been urged on appeal. We therefore do not decide it. Comptroller of Treasury v. Aerial Products, Inc., 210 Md. 627, 644-45, 124 A.2d 805; Mullan v. Mullan, 222 Md. 503, 506, 161 A.2d 693; Baxter v. State, 223 Md. 495, 502, 165 A.2d 469; Hyde v. State, 228 Mc. 209, 218, 179 A.2d 421. Cf. Maryland Rule 846 f. That question was the validity or invalidity of the Acts of 1957, Ch. 712, § 1113(d) amending the Code of Public Local Laws of Prince George's County (1953 Ed), authorizing the Circuit Court on review of action of the Board (the District Council) in zoning matters to reverse or modify such action if it is '[a] against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency.' ¹ The trial court held this provision unconstitutional. The appellants do not challenge this holding and we, therefore, do not pass upon it.

This case presents some rather unusual facts. First, the principal element of change relied upon by the proponents of the rezoning here in issue was brought about through the action of substantially the same interests--the reclassification of about 17 acres on the other side of the Riverdale Road for commercial use (C-1),...