England v. Mayor and Council of Rockville, 64

• Decision Date: 09 November 1962
• Docket Number: No. 64,64
• Citation: 230 Md. 43,185 A.2d 378
• Parties: Harrison L. ENGLAND et ux. v. The MAYOR AND COUNCIL OF ROCKVILLE.
• Court: Maryland Court of Appeals

Page 43

230 Md. 43

185 A.2d 378

Harrison L. ENGLAND et ux. v. The MAYOR AND COUNCIL OF ROCKVILLE.

No. 64.

Court of Appeals of Maryland.

Nov. 9, 1962.

James R. Miller, Jr., Rockville, for appellants.

William A. Linthicum, Jr., Rockville, for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, MARBURY and SYBERT, JJ.

HENDERSON, Judge.

The appellants filed a bill of complaint against the Mayor and Council of Rockville, alleging that the denial of their zoning application deprived them of any reasonable use of their property and hence was arbitrary and confiscatory. It is conceded that the issue was properly presented by a bill in equity for declaratory decree. Richmark Realty Co. Inc., v. Whittlif et al., 226 Md. 273, 280, 173 A.2d 196, and cases cited. Apparently, the Rockville ordinance did not provide any remedy by way of appeal, so that a contention based on the necessity of resorting to a statutory remedy could not be raised in the instant case. As to the right to proceed in equity where no appeal is provided, see Congressional School of Aeronautics, Inc. v. State Roads Commission, 218 Md. 236, 243, 146 A.2d 558. It is also conceded that if the appellants can meet the heavy burden placed upon them to prove by clear and convincing evidence that they are deprived of all reasonable use of the property by the existing classification they are entitled to prevail. See Frankel v. Mayor and City Council of Baltimore, 223 Md. 97, 103, 162 A.2d 447, and cases cited.

The property in question, two vacant lots, is located on Stonestreet Avenue in a section that has been zoned residential since 1949, when it was incorporated into the City. The application seeks reclassification to Light Industrial, a classification recommended for the area by the Planning Commission in 1957, and again in 1960. In the latest report, it stated that 'there is no other logical use than that for industrial purposes'. Directly across the street is a large tract used since 1959 by the Montgomery County Board of Education for warehousing, open storage of materials, school buses and trucks, and machine shops. Stonestreet Avenue has recently become a heavily travelled industrial road, and the whole area, with the exception of two well-kept dwellings, is undeveloped, substandard, or industrial. Adjacent to the property in question is a substandard and dilapidated dwelling described as a 'shack'. On the three lots to the north there are dilapidated buildings, at least one of which is boarded up and vacant. Nearby is the main line of the Baltimore and Ohio Railroad, paralleling Stonestreet Avenue. There are numerous other industrial uses in the next block, in addition to that upon the Board of Education property across the street.

The appellants produced an expert witness who testified that it would not be economically feasible to develop the subject property for residential use, that in fact it would be 'utter folly', and in his opinion financing could not be obtained for residential construction. There was no testimony to the contrary. The appellee points to an alleged admission by one of the appellants, that residential dwellings could be built on the two lots for rental purposes. However, his statement 'I suppose you could', was qualified by the explanation that, based on his experience with renting other houses in the neighborhood, 'you [would] hardly get enough out of it for the taxes'. The only other testimony came from protestants who simply maintained before the Council that to approve the...