Eckes v. Board of Zoning Appeals of Baltimore County

• Decision Date: 16 March 1956
• Docket Number: No. 125,125
• Citation: 209 Md. 432,121 A.2d 249
• Parties: Emory A. ECKES, etc. v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY and Edwin O. Lynch et al.
• Court: Maryland Court of Appeals

Page 432

209 Md. 432

121 A.2d 249

Emory A. ECKES, etc. v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY and Edwin O. Lynch et al.

No. 125.

Court of Appeals of Maryland.

March 16, 1956.

Kenneth C. Proctor, Towson, for appellants.

Allen E. Buzzell, Towson (George M. Berry, Towson, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from an order of the Circuit Court for Baltimore County affirming the action of the Zoning Commissioner and the Board of Zoning Appeals (the Board).

Edwin O. Lynch, Elizabeth H. Lynch, his wife, and Florence C. O. Lynch, are the owners of a parcel of land containing ten and three-quarters acres located at the northwest corner of the right angle intersection of Wise Avenue and Lynch Road near Dundalk in Baltimore County. This land extends westerly along the north side of Wise Avenue, from its intersection with Lynch Road, a distance of 715 feet, and northerly along Lynch Road from that intersection, a distance of 675 feet. They filed an application with the Zoning Commissioner for a reclassification of that area from 'A' Residential to 'E' Commercial for the erection of a shopping center.

The Zoning Commissioner, after hearing, passed an order granting the requested reclassification 'subject to the provision of at least two and a half square feet of off-street parking area for each square foot of land covered by commercial buildings.' Some of the residents of the community, who had protested the re-zoning before the Zoning Commissioner, appealed to the Board. After a hearing before the Board, where none of the protestants testified, a combined opinion and order was passed on November 30, 1954, affirming the action of the Zoning Commissioner. Upon appeal the matter was taken before the Circuit Court for Baltimore County where the trial judge by order affirmed the action of the Board. From that order appellants appeal.

Prior to January 2, 1945, the effective date of the Zoning Laws and Regulations of Baltimore County, the tract of land here sought to be re-zoned was cultivated as farm land, the remaining part of a sixty-five acre farm formerly operated by the husband of Florence C. O. Lynch and the father of Edwin O. Lynch. At that time there were no commercial establishments of any kind in the area. This land, including the four corners at the intersection of Wise Avenue and Lynch Road, then under cultivation as farm land, was originally zoned 'A' Residential as was all farm land in that vicinity. On the north side of Wise Avenue from Lynch Road to Merritt Avenue, a distance of approximately three-quarters of a mile, there were no commercial establishments. The land there was cultivated as farm land, as was the south side of Wise Avenue except for a few residences near Lynch Road.

Since the adoption of the zoning regulations the other three corners at the intersection of Lynch Road and Wise Avenue have been reclassified as commercial and special permits issued for the erection of filling stations thereon. These filling stations have been built. From Lynch Road to Church Road in a westerly direction running along the north side of Wise Avenue there are two other establishments, a garage and used car agency, begun since January 2, 1945. Adjoining these is a vacant lot which has been zoned commercial but no commercial establishments have been erected thereon. Between Lynch Road and Church Road on the south side of Wise Avenue is a Sweet Shop adjacent to the filling station on the corner of Lynch Road. On the north side of Wise Avenue between Church Road and Merritt Avenue the entire block is zoned commercial. An office building is located on the southwest corner of Wise Avenue and Church Road. Merritt Avenue crosses Wise Avenue about three-quarters of a mile west of Lynch Road and the tract in question. West of Merritt Avenue is a large area which has also been zoned commercial. That tract had not been developed for commercial use at the time of the hearing before the Board. The remaining land in this area is zoned residential and residences have been constructed thereon or are in the course of construction.

In the residential zone on the east side of Lynch Road, just north of the filling station on the corner of Wise Avenue, is a tract of approximately twenty acres owned by the Catholic church on which there has been erected a school and parish house. On Church Road, which is about a half mile west of Lynch Road, just north of Wise Avenue, is a tract of land owned by the Patapsco Methodist Church. The erection of church buildings is contemplated there at a cost of approximately $800,000. In the residential area there has been a substantial increase in the construction of residences which are mostly group row houses. Homes have been erected or are in the process of being erected on the west side of Lynch Road within several hundred feet of the ten and three-quarter acre tract here sought to be re-zoned. The appellees have reserved out of this tract three lots on the west side of Lynch Road adjoining the tract.

It is settled by a long line of cases in this State that, where a legislative body under the powers granted by the Legislature has enacted a zoning ordinance, the review by the court is restricted and narrow in scope. Such an ordinance is presumed to be valid in the exercise of the police power. A successful attack must affirmatively and clearly show that the ordinance is arbitrary, capricious, discriminatory, or illegal. This presumption of reasonableness and constitutionality applies to re-zoning as well as to original zoning, although not with as great force. In order for the re-zoning to be valid it must appear that either there was a mistake in the original zoning, or that the character of the neighborhood has changed to such an extent as to justify such re-zoning. Where the legislative body has re-zoned, the courts will not substitute their judgment for that of the legislative body if the question decided was fairly debatable. Unless it is shown that the re-zoning by the Board was arbitrary, capricious, discriminatory, or illegal, and not fairly debatable, the action of the Board must be affirmed. We here cannot disregard the rule that in an appeal from the Board, the court will not substitute its judgment as to the wisdom of the action taken by the Board in zoning and re-zoning. The only question before the court is whether or not such action was arbitrary and discriminatory or fairly debatable. The court will only reverse where there are no grounds for reasonable debate or where there are no supporting facts in the record to justify the legislative action of the Board. Northwest Merchants Terminal v. O'Rourke, 191 Md. 171, 60 A.2d 743; Kracke v. Weinberg, 197 Md. 339, 79 A.2d 387; Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27; Zang & Sons, Builders, Inc., v. Taylor, 203 Md. 628, 102 A.2d 723; American Oil Co. v. Miller, 204 Md. 32, 102 A.2d 727; Offutt v. Board of Zoning Appeals, 204 Md. 551, 105 A.2d 219. No one in this case challenges the original zoning as 'A' Residential, as all the farm land in this area was originally so zoned. The question before this Court is whether there were any supporting facts to justify the action of the re-zoning. If so, and there is room for reasonable debate as to the justification for re-zoning and the action of the Board was not arbitrary, capricious, and discriminatory, we are without power to deny such re-zoning.

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