Board of County Com'rs of Prince George's County v. Levitt & Sons, Inc., 344

• Decision Date: 02 June 1964
• Docket Number: No. 344,344
• Parties: BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY v. LEVITT & SONS, INC.
• Court: Maryland Court of Appeals

Page 151

235 Md. 151

200 A.2d 670

BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY v. LEVITT & SONS, INC.

No. 344.

Court of Appeals of Maryland.

June 2, 1964.

Robert B. Mathias, Upper Marlboro (Lionell M. Lockhart, Joseph S. Casula and Harry L. Durity, Upper Marlboro, on the brief), for appellant.

James Magruder Rea, Bladensburg (Alfred C. Scuderi, Washington, D. C., on the brief), for appellee.

Before HENDERSON, PRESCOTT, HORNEY, SYBERT and THOMAS J. KEATING, Jr., Specially Assigned, JJ.

PRESCOTT, Justice.

The appellee, Levitt & Sons, Inc., applied to the Board of County Commissioners of Prince George's County, sitting as the District Council, for the reclassification of a small tract of land containing a little less than an acre, at the intersection of Belair Drive and Crain Highway from a R-R Zone (one-family detached residential) to a C-1 Zone (local commercial). In accordance with law (Section 78: [a] of Ch. 780, Act of 1959), the application was sent to the Maryland National Capital Park & Planning Commission (Commission) for approval, disapproval, or suggestions. The Commission recommended that the application be denied. The Planning Board of Prince George's County recommended approval of the Commission's action. A hearing was held before the District Council on February 15, 1963, and, after said hearing, the Council denied the application. The appellee herein appealed to the Circuit Court, and the court reversed the action of the District Council. This appeal followed.

The appellant has posed several questions, but in the view we take of the case, it may be determined by answering the following one, which was the only one argued before, and decided by, the trial judge: Were the 'administrative findings, inferences, conclusions, or decisions' of the District Council supported by 'competent, material and substantial evidence in view of the entire record as submitted,' and if so, were they 'against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency?'

The appellant seeks to attack the constitutionality of Section 79(i)(5) and (6); however, this question was not raised or argued in the court below, hence, for the purposes of this appeal, we must consider them as valid enactments of law. Maryland Rule 885; Gonzales v. Ghinger, 218 Md. 132, 145 A.2d 769. Cf. Kirby v. State, 222 Md. 421, 160 A.2d 786.

The appellee is a very large land developer. In 1959, it came to Maryland and purchased a tract of land containing over 2000 acres. Since that time, it has purchased a large additional acreage: some 800 acres. It has built many dwellings thereon, and also quite a number of business establishments on land rezoned for such purposes. The business establishments, for the main part, are centered in one location containing some 35 acres.

The subject property contains about 9/10 of an acre, and is located at the intersection of Belair Drive and Crain Highway. Belair Drive is a thoroughfare leading to and from the subdivision built by appellee. Crain Highway at this point is a four-lane dual highway, separated by a median strip, and is a main arterial highway from Baltimore City south. Apparently, Belair Drive does not continue on the other side of the Crain Highway from the subject property.

Application was made by the appellee for a C-1 reclassification with the idea of following this up by a request for a special exception to permit a gasoline filling station, as there are no provisions for special exceptions for this purpose under the existing classification. Of course if the C-1 reclassification be granted, appellee will be at liberty to utilize the property for any of the various businesses permitted in that classification.

The trial court summarized all of the testimony on behalf of the applicant, as follows:

'(1) Carl E. Dusinberre, a real estate representative for Socony-Mobil Oil Co., testified that he had ascertained the results of a recent traffic count made by the State Roads Commission and that he had kept the property under observation for six months. He made a study of traffic flow at the intersection and the location was desirable for a service station.

'(2) Patrick Shields, an employee of applicant corporation, in the Department of Community Relations, made studies of the location, including traffic flow and visibility from various places, which indicated the desirability of granting the application.

'(3) A. P. Devito, Director of Technical Planning for applicant, an architect, who had previously testified in cases involving land use, considered the zoning of the particular property. He stated that being located at the intersection of two heavily travelled highways, one of which is an arterial interstate route and the other a major means of egress to a community of 2000 present homes with a future potential of 8000, there is a need for commercial zoning and R-R is not a proper classification for the property.

'(4) Robert A. Hagan, Director of Community Relations for applicant, stated that the location of the property was 2.35 miles from their existing shopping center and more than that to the Archer property, another area of commercial zoning, and estimated that 2/3 of the homes in the development were nearer to this property.

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'A letter from the Secretary of the Belair Citizens Association stated his organization urged favorable consideration of the application without stating any reason.'

Supplementing the above summarization by the trial court slightly, we state that appellee's witnesses developed the fact that the intersection is heavily travelled by persons in automobiles, and the residents of Belair who intended to go to Washington by the John Hanson Highway would have to go just south of its intersection with route 301 if they desired to purchase gasoline in that locality.

We now examine the evidence on the other side of the picture. The comprehensive zoning map which includes the subject property was adopted in 1960. Although appellee offered considerable testimony relative to a proposed filling station, (which would require a special exception), the District Council ruled that no request for a special exception was before it; hence it was considering the application in accordance with what it was--an application for rezoning to C-1.

The Technical Staff Report was before the Council, and it discusses the application and the recommendations contained in the report rather thoroughly. It discloses that the subject property is surrounded by a residentially zoned area, and it is a part of the fast developing single-family subdivision of Belair. Some two miles to the south on the Crain Highway is land zoned for commericial uses, including a large Holiday Motel and gasoline filling stations; and land to the north about the same distance (at the intersection of route 450 with the Crain Highway) is zoned commercial, where two filling stations are located. The record does not disclose commercially zoned properties between these two areas. At a distance of 2.35 miles to the northwest on route 450 is the 35 acre parcel of Belair zoned C-1 which contains a shopping center and a filling station (at the argument, it was stated without denial that there were some nine filling stations located near the subject property within a radius of about 2 1/2 miles.) Outside the development of Belair, the lands have remained predominantly agricultural in nature. The report stated that the 'changes which have occurred since November, 1961, [the date of a previous staff report] have in no way altered the general character of the area. The zoning changes which have occurred [none was shown to have taken place between the areas on the Crain Highway zoned commercial, mentioned above] are of insufficient magnitude and in several instances have served only to remove an existing commercial use from a non-conforming status.'

The report recognized that whenever extensive residential development occurs in an area that is predominantly agriculturally oriented, it creates a need for related commercial facilities to serve the people. Supposedly these facilities are to serve the people of the neighborhood, but, when placed on arterial highways, the location encourages use by persons outside the community. Planning experience in other locations in the nation indicates that when an area is developed under one ownership, as in the case of Belair, the developer can exercise architectural and site planning controls beyond those required by the Zoning Regulations, but, when the Staff is considering an application for reclassification, it cannot assume what controls will be exercised; therefore it must consider such requests by observing similar facilities in similar locations, and the effect which such facilities have had upon the surrounding areas. Generally, this has been unfavorable when the facilities are scattered throughout the area in piece-meal fashion, and usually has been detrimental to the community and its future developmental potential. (The Staff report also considered and reported on three other requests by the same owner for reclassifications to C-1 of small parcels located at different spots in the subdivision.) Consequently, the Staff recommended that the application be denied 'in favor of encouraging the developer to consider grouping these [the locally needed] facilities in a service area complex,' pointing out that such an area could include such facilities as gasoline service stations, professional offices and other local service-oriented establishments, with small harm to the adjacent residential areas. The Staff suggested that if the present commercial center in Belair had been properly located, it was logical to assume that the proper location for such...