Cardon Investments v. Town of New Market

• Decision Date: 05 October 1983
• Docket Number: No. 1704,1704
• Citation: Cardon Investments v. Town of New Market, 466 A.2d 504, 55 Md.App. 573 (Md. App. 1983)
• Parties: CARDON INVESTMENTS v. TOWN OF NEW MARKET et al.
• Court: Court of Special Appeals of Maryland

Page 573

55 Md.App. 573

466 A.2d 504

CARDON INVESTMENTS v.TOWN OF NEW MARKET et al.

No. 1704.

Court of Special Appeals of Maryland.

Oct. 5, 1983.

John C. Murphy, Baltimore, with whom was Harry T. DeMoll, Frederick, on brief, for appellant.

Peyton Paul Phillips, Frederick, for appellees, Town of New Market et al.

Judith A. Armold, Asst. Atty. Gen., with whom was Stephen H. Sachs, Atty. Gen., on brief, for appellee, Maryland Dept. of State Planning.

Argued before LOWE, BISHOP and ADKINS, JJ.

BISHOP, Judge.

Cardon Investments appeals a Frederick County Circuit Court order that overturned a rezoning of its land.The appellees are the Town of New Market(being approximately 350 persons residing in and about the Town of New Market) and the Department of State Planning(Department), intervenor in opposition to the rezoning.

Facts

The subject property consists of 6.125 acres of vacant land located on the south side of Maryland Route 144 at its intersection with Maryland Route 75, immediately north of the Interstate 70 interchange.It is bordered on the east by vacant agricultural land, and on the north, west and south by State Roads Commission rights-of-way for Maryland Route 144, Maryland Route 75 and Interstate 70, respectively.The subject property is just outside the limits of the Town of New Market.

The case before us began its legal journey on October 9, 1981, when appellant filed its application for rezoning, to permit the site to be used for a truck stop.For the purposes of this appeal, it is necessary that we look to some history of the subject property and rezoning in Frederick County.

1959--The Board of County Commissioners adopted its first comprehensive zoning ordinance, which placed the subject property in zoning classification A-1, agricultural.

1971--At the request of the then property owner, Humble Oil Company, the property was re-zoned from A-1, agricultural, to B-2, community business zone.The B-2 classification permitted an "automobile service station"; however, the County Code defined only an automotive service station as "[t]hat portion of property where flammable or combustible liquids are stored and dispensed from fixed equipment into the fuel tanks of motor vehicles ...".(Frederick County Code, section 40-1).

1972--Frederick County adopted a comprehensive land use plan with a "highway service commercial" classification, described as:

"Highway Service Commercial (Purposes): To provide for vehicular transient services at major highway intersections.

Areas Classified:

1.Intersections of major highways such as expressways, freeways and major arterial roads.

2.Intersections of highways between employment and residential areas.

Uses Permitted:

Service stations, lodging and accommodations, restaurants, truck stop, rest and picnic areas, specialized tourist-oriented retail commercial and convenience goods."(Emphasis supplied.)

When appellant filed for rezoning of its land in 1981, the staff report of the Planning Department of Frederick County commented "VI.Relationship to the 1972 Comprehensive Plan.

The published 1972 adopted Comprehensive Plan designates this site for Highway Service use.In addition, District and Regional Commercial Centers are designated in the 1972 Plan for this northeast quadrant of the I-70/Rt. 75 interchange.

The staff would note that the 1972 Plan filed in the Frederick County Courthouse includes an adopted Comprehensive Plan map ... calling for the extension of High Density Residential use south of Rt. 144, east of Rt. 75, on the western portion of the subject site.The remainder of this tract is shown as Rural Reserve.In the staff's opinion, this reflects a mapping error since the staff does not believe this area was intended to be designated Rural Reserve due to the intensity of uses planned around this site and the designation of Highway Service in the published Plan map."

1977--Frederick County adopted OrdinanceNo. 77-1-78"to repeal and re-enact with amendments, Chapter 40, Title 'Zoning' of the Frederick County Code."

This ordinance designated May 11, 1959, instead of the date of the passage of the ordinance for determining any changes or mistakes required to be shown for purposes of rezoning.The ordinance also created the G.C. (General Commercial) and the H.S. (Highway Service) classifications.

1981--Appellant applied for a Zoning Certificate Building Permit to construct a truck stop.Because a "truck stop" was not explicitly referred to in the Frederick County Zoning Regulations, appellant sought and obtained an opinion by the Zoning Administrator providing that a truck stop was a permitted use in the G.C. classification.The Town of New Market appealed this interpretation to the Board of Appeals, which affirmed the Zoning Administrator.The Town then appealed to the Circuit Court.

While the above appeal was pending before the Circuit Court, the Board of County Commissioners enacted a zoning text amendment that defined truck stops and restricted them to the H.S. and light industrial classifications.The issue raised by the Town in the pending appeal became moot.

Appellant then applied for rezoning of the subject property from the General Commercial classification to the Highway Service classification, to permit the property to be used for a truck stop.

1982--The Board of County Commissioners passed Ordinance 82-2-246, which rezoned the property H.S.The Board agreed to rezone the site because:

1.The site was designated as H.S. on the 1972 comprehensive plan; and

2.Substantial change in the character of the neighborhood warranted reclassification of the property (the Commissioners adopted the staff report, which measured the change since 1959).

The Commissioners also found that there was no mistake in the 1977 zoning of the property in the G.C. classification.

The Town of New Market then appealed to the Circuit Court for Frederick County.At this time, the Department of State Planning(Department), which had not appeared before the Commissioners, filed a timely intervention and appeal from the reclassification ordinance, in accordance with Article 88C, section 2(r) of the Maryland Code.An order of the Circuit Court for Frederick County dated May 4, 1982, designated the Department as a party.

On July 26, 1982, the circuit court reversed the action of the Commissioners, thereby denying the reclassification.This appeal is from the court's order of August 10, 1982, implementing that decision.

At the beginning of its oral opinion the circuit court pointed out that its function was to determine whether "the decision of the County Commissioners is erroneous as a matter of law," not to substitute its judgment for that of the County Commissioners.The court observed that it could not make findings of fact, but could "conclude that there was not sufficient evidence before the Commissioners to make the findings that they did make."

When a local legislative body enacts a zoning ordinance pursuant to powers granted by the Legislature, there is a presumption of validity, which applies with greater force to original zoning than to rezoning.Where, however, "there is no room for reasonable debate, or a record barren of supporting facts ... the Court can declare the legislative action" invalid.Wakefield v. Kraft, 202 Md. 136, 141-42, 96 A.2d 27(1953).

This same standard is set out in Howard County v. Dorsey, 292 Md. 351, 355-56, 438 A.2d 1339(1982);Boyce v. Sembly, 25 Md.App. 43, 49-50, 334 A.2d 137(1975);Rockville v. Henley, 268 Md. 469, 472-73, 302 A.2d 45(1973).See generally: 6 R. Rohan, Zoning and Land Use Controls, § 39.02(1983).

In the case sub judice the circuit court set out the authority of the County Commissioners, which "is limited to circumstances where there is sufficient evidence for them to conclude that the zoning was mistakenly applied in the original zoning or that there had been substantial changes in the character of the neighborhood to warrant the decision to make the change."

The circuit court, in its oral opinion, found that the record before it did not contain sufficient evidence of mistake or change in the neighborhood to justify the rezoning.Specifically, with regard to the change consideration date, it stated that:

1.In 1971 the Board of County Commissioners rezoned the property from an agricultural category to a commercial category.The property continued in that classification until the time of the current attempt to rezone.This caused "a truncating ... of the circumstances or the necessity to view and consider changes prior to that date."

2.The fact that the 1972 plan classified the property H.S. is irrelevant to the Board of County Commissioners' determination to rezone in this case.

3.Textual changes in the 1977 ordinance created "refinements of the zoning classification", which in turn required designating on the map those areas where the textual changes applied.There was, accordingly, "a conscious determination to find the sites ... appropriate for this highway service classification", but the subject property was not one of them.

4.As a result, the time for "a consideration of the change in the character of the neighborhood" was 1977.

With respect to evidence of mistake or change, the court stated:

5.The Commissioners made an express finding that there was no mistake in the general commercial zoning of the property in 1977.

6.The changes set out by the Commissioners going back to the date that the court deemed appropriate would not call for a classification, e.g.,--the nature, scope and location of the highway improvements had long been considered; their completion in 1974 is of "no telling consequences" in terms of the 1971 decision to place the property "in the commercial category ...".

7.The availability of adequate sewer facilities is not significant, though the system, of course, should "be able to take care of the property."

8.The number of extensions of...