Boyce v. Sembly

• Decision Date: 07 March 1975
• Docket Number: No. 153,153
• Citation: 25 Md.App. 43,334 A.2d 137
• Parties: William W. BOYCE et al. v. Bertha SEMBLY et al.
• Court: Court of Special Appeals of Maryland

Page 43

25 Md.App. 43

334 A.2d 137

William W. BOYCE et al. v. Bertha SEMBLY et al.

No. 153.

Court of Special Appeals of Maryland.

March 7, 1975.

Ernest C. Trimble, Baltimore, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief, for appellants.

Anne Kay Kramer, Stevenson, for appellees.

Argued before THOMPSON, DAVIDSON and LOWE, JJ.

DAVIDSON, Judge.

This case presents the narrow question of whether the County Council of Baltimore County (Council) committed basic and actual 'mistake' or 'error' as those interchangeable terms are used in zoning law, when on 24 March 1971 it adopted a comprehensive zoning map on which the subject property, consisting of 5.84 acres, was classified as D.R.-5.5 (Density Residential, 5.5 dwelling units per acre).

Most of the facts are not in dispute. The subject property, located in a community known as Lutherville, lies in an area bounded by Seminary Avenue on the north, the Harrisburg Expressway on the west, and the Baltimore Beltway on the south. (See location map attached hereto.) It is roughly triangular in shape and fronts on the west side of Railroad Avenue approximately 480 feet south of its intersection with Seminary Avenue.

On the west side of Railroad Avenue, approximately 250 feet north of the subject property, there is a relatively small parcel of land, located at the corner of the southwest quardrant of the intersection of Railroad Avenue and Seminary Avenue, which was reclassified to the B.L. zone (Business, Local) by a local map amendment adopted subsequent to 1955, on which a Citgo service station has long been and still is in operation. In the northwest quadrant of the intersection there is also a comparatively small parcel of land zoned B.L. upon a portion of which a refinishing shop, called The Wood Butcher, was developed around 1960. A furniture store known as Leers, containing about 15,000 square feet, is presently under construction on the remaining portion of that B.L. zoned land. At the corner of the southeast quadrant of the intersection there exists still another relatively small parcel of land which was classified in the B.L. zone in 1955, upon a portion of which a small grocery store has been located for many years. Subsequent to 1955 a relatively small parcel of land adjoining this B.L. zoned tract on the south was reclassified from the then R.-10 zone (Residence, one or two family, lot area 10,000 square feet) to the B.L. zone. An office building has been developed on this B.L. zoned tract. Adjoining this B.L. zoned parcel on its south is a tract of land zoned D.R.-3.5 (Density Residential, 3.5 dwelling units per acre), a portion of which confronts the northern portion of the subject property. ¹

Moving south along the east side of Railroad Avenue and confronting the southern portion of the subject property there is a parcel of land which, subsequent to 1955, was reclassified by a local map amendment from the then R.-10 zone to the D.R.-16 zone (Density Residential, 16 dwelling units per acre). An apartment complex, known as the Cardiff of Charles Apartments, consisting of 160 units, has been developed on a portion of that tract. Lying between this D.R.-16 parcel and the Beltway, on the east side of the railroad right-of-way, there is a relatively large tract of land which, subsequent to 1955, was reclassified by a local map amendment from the then R.-10 zone to the B.R. zone (Business, Roadside). 'Warehouse office storage'-type buildings have been developed on this parcel. The record further shows that the Lutherville Supply & Equipment Company, which sells heavy machinery, earth-movers and cranes, is also located on the land east of the subject property and across the railroad track. It is unclear, however, whether this business enterprise is located on the D.R.-16 zoned land or the B.R. zoned land.

The subject property, which is fairly level, has a low elevation lying approximately 15 to 20 feet below the roadbed of the Northern Central Railway, which adjoins Railroad Avenue on the east. It is bisected by the Roland Run Stream which traverses the subject property from north to south. That portion of the subject property lying to the west of Roland Run Stream is further bisected by a tributary of the Roland Run Stream which passes through that portion of the subject property from west to east. Parallel to Roland Run and its tributaries there are 10-foot-wide easements of utilities and sewers.

For 60 years a building materials and lumber supply yard, located on the southeastern sector of the subject property, has been in operation. This nonconforming use is still being carried on, with annual sales in 1971 of $1.5 million. At present, there are five frame buildings located on the southeastern portion of the subject property, all of which are 50 to 60 years old and in a 'bad state of repair.' Their utility for operation as a modern-day lumberyard is substantially impaired because none of them is designed to accommodate forklift trucks, necessitating the piling of lumber by hand. At one time a residence and a shed had been located on the southwestern portion of the subject property, but those buildings have been razed. Currently, that portion of the tract has no development upon it.

At present, access to the subject property is limited to Railroad Avenue, which runs along a small portion of the northeastern sector of the subject property and then deadends. That street has a 20-foot right-of-way and a paved width of 15 feet. The Northern Central Railway right-of-way which adjoins Railroad Avenue on the east, as well as a portion of the southeastern sector of the subject property, contains one railroad track over which two to four freight trains travel daily. School Lane appears to provide access to the northwestern section of the subject property. The 20-foot-wide pavement of that road ends, however, 60 feet from the northern boundary of the subject property.

The subject property was classified in the R.-6 zone (Residence, one or two family, lot area 6,000 square feet), which was the then equivalent of the D.R.-5.5 zone, by the comprehensive zoning map which preceded that of 1971. On 10 September 1970 the Zoning Commissioner (Commissioner) of Baltimore County granted an application requesting reclassification of the subject property to the B.R. zone. An appeal was taken to the Board of Appeals (Board). While that appeal was pending, the Council was considering the adoption of a new comprehensive zoning map. The Log of Issues and Recommendations to the Council, Relative to the Central Sector, used at the public hearing preceding adoption of the 1971 comprehensive zoning map, indicates that the existing zoning of the subject property was R.-6; that the Planning Board recommended that the subject property be designated D.R.-5.5; that the property owner was requesting a B.R. zoning classification in a local map amendment case then pending; and that a proposed Council resolution recommended D.R.-16 zoning for the subject tract. On 24 March 1971 the Council adopted a comprehensive zoning map on which the subject property was classified in the D.R.-5.5 zone.

Within three weeks of the adoption of the comprehensive zoning map ² the owner of the property and the contract purchaser of the tract (hereinafter called applicants) petitioned the Commissioner for a reclassification of the subject property to the B.R. zone, alleging that there was error in the comprehensive zoning map with respect to the subject property. After a hearing the Commissioner concluded that the comprehensive zoning map was in error in classifying the subject property in the D.R.-5.5 zone. On 8 February 1972 he granted the requested reclassification to the B.R. zone. An appeal was taken to the Board and, on 6 September 1972, the action of the Commissioner was reversed in part and affirmed in part by the Board which believed that the applicants had 'met the burden of proof in showing error in original zoning on that portion of the petitioned tract southeastwardly of the stream, but not on that portion northwestwardly of the stream.' Accordingly, the Board granted reclassification of the 2.3 acres of the subject property, which lie on the southeast side of the center line of Roland Run to the B.R. zone, and retained the remaining 3.54 acres of the subject property, which lie on the northwest side of the center line of Roland Run, in the D.R.-5.5 zone.

The protestants, neighboring property owners, filed an appeal in the Circuit Court for Baltimore County from that portion of the order which reclassified the southeastern portion of the tract to the B.R. zone. On 29 January 1974 Judge Lester Barrett found that '(t)he testimony of the Protestants in this case supported the correctness of the County Council's comprehensive zoning of March 1971' and that 'the testimony produced by the Petitioner-Appellee is not sufficient to overcome the presumption of correctness which attaches with the adoption of the comprehensive zoning map by the County Council.' An order was entered reversing that portion of the Board's order which had reclassified the 2.3 ± acres lying on the southeastern portion of the subject property to the B.R. zone. It is from this order that the applicants appeal.

The applicants initially contend that the trial court applied an improper standard in determining whether the action of the Board should be reversed. They point out that while the trial court found the evidence adduced by the protestants supported the correctness of the 1971 comprehensive zoning and that the evidence adduced by the applicants was insufficient to overcome the presumption of correctness which attaches to a comprehensive rezoning, it did not determine whether the action of the Board was arbitrary and discriminatory or 'fairly debatable.' The applicants conclude that under these circumstances the trial court impermissibly weighed the evidence and...