Helfrich v. Mongelli

• Decision Date: 18 January 1968
• Docket Number: No. 26,26
• Citation: 248 Md. 498,237 A.2d 454
• Parties: Campbell V. HELFRICH et al. v. Peter J. MONGELLI et al.
• Court: Maryland Court of Appeals

Page 498

248 Md. 498

237 A.2d 454

Campbell V. HELFRICH et al. v. Peter J. MONGELLI et al.

No. 26.

Court of Appeals of Maryland.

Jan. 18, 1968.

W. Lee Thomas, Towson (Royston, Mueller, Thomas & McLean, Towson, on the brief), for appellants.

A. Owen Hennegan, Jr., Towson, for appellees.

Before HAMMOND, C.J., and HORNEY, MARBURY, McWILLIAMS and FINAN, JJ.

FINAN, Judge.

The subject property in this zoning appeal consists of less than one acre, fronting on the north side of Frederick Road at Overhill Road, in the First Election District of Baltimore County. In April of 1959 appellees purchased the subject property along with a larger tract adjacent on the north. Subsequent to the purchase, hearings were held by the County Planning Board and the County Council prior to adoption of a comprehensive zoning map for the First Election District. During this time appellees requested and received R-A (Residence, apartments) classification for the larger tract. As to the small corner property appellees made no such request and it was classified R-6 (One and two-family residential). After the comprehensive map took effect in 1960, appellees sold the R-A zoned land and it was later developed into garden-type apartments.

In 1965 appellees petitioned for reclassification of the subject property from R-6 to R-A, with a special exception for the construction of a two story professional office building, which was to be architecturally in conformity with the adjacent apartment units. The application was granted by the deputy zoning commissioner, and the County Board of Appeals affirmed this decision finding evidence of both original error and substantial change. Protestants appealed to the Baltimore County Circuit Court, which rejected petitioners' arguments of confiscation and original error, but found that the evidence before the Board was sufficient to establish a fairly debatable issue of substantial change in the neighborhood. Accordingly, it affirmed the Board of Appeals.

As is customary with zoning appeals, the Court must now engage in the somewhat arduous task of creating a verbal reproduction of the 'neighborhood,' within which the subject parcel is situated. At the outset, it must be noted that at the time the comprehensive map was adopted in 1960, several nonconforming uses existed on both sides of the subject property, both north and south of Frederick Road, and to a large degree they are still in use.

Directly east of the property is a small grocery store, then several residences, including the residence-offices of an accounting and law practice, then an insurance agency, and a restaurant-tavern known as the Ridgeway Inn, and behind the Inn, a nursing home. Opposite the property is an attractive and well kept animal hospital attached to the veterinarian's home.

Going west from the property, on the northwest corner of Frederick and Overhill Roads, is a cottage in state of disrepair, and west of that a large residence and an outbuilding used for light manufacturing. On the south side of Frederick Road are located several detached residences and furthere west the Five Oaks Swimming Pool, which at the time of the map adoption in 1960 was a nonconforming public pool, but subsequently became a private club. West of the pool is a restaurant, the Candle Light Lodge.

With one exception, and of the aforementioned uses lie on land zoned R-6 or R-10. The nursing home is situated on R-A land, however, it is a permitted special exception. The Ridgeway Inn, Candle Light Lodge, insurance office, manufacturing building and grocery store were all existing nonconforming uses, although testimony revealed that the insurance office has closed down. The professional offices-dwelling is a permitted use in a residential zone, and the animal hospital is a permitted special exception to an R-10 zone. The only additions to the described uses existing in 1960 were a 1963 special exception and variance for the improvement of the nursing home and a 1960 special exception to enclose an existing porch on Ridgeway Inn.

The issues before the court below were threefold: (1) Was there a mistake in the original zoning of the subject tract when the comprehensive zoning map was adopted by the Baltimore County Council on April 5, 1960? (2) Has there been a change in the neighborhood sufficient to justify a zoning reclassification from R-6 to R-A? (3) Does the existing R-6 zoning classification so deprive the appellees of the use of their property as to amount to confiscation?

We have no difficulty in agreeing with the lower court's findings on the first issue that there was no mistake in the Comprehensive Zoning Map of 1960, and on the third issue to the effect that the existing classification does not amount to confiscation of the subject property. However, on the second issue of change in the character of the neighborhood, we think the lower court was in error and should be reversed.

We will first discuss issues one and three involving original error and confiscation, both of which the lower court correctly answered in the negative.

Error

Judge Menchine, in his opinion in the court below, stated:

'This Court finds that there is not a scintilla of evidence to support the conclusion of the Board that the R6 zoning applied to the subject tract was the product of a legislative error. The testimony makes it quite clear that R6 classification was applied to the subject tract and to extensive frontage on both sides of Frederick Road; that the classification included a number of non-conforming commercial uses, with an intent and purpose to maintain residential status in the area free from threat of further commercial exploitation. It is clear that this intentional legislative course had achieved its purpose, in that all development occurred within the constraints imposed by the comprehensive zoning and all attempts to change zoning in the area have been unsuccessful.' ¹

We agree with the lower court's finding that there was no error in the Comprehensive Zoning Map of 1960.

Confiscation

The appellees purchased the subject property for the purchase price of $11,000 in 1960. Appellees' own witness testified that the property, if sold for development for residential purposes under the R-6 classification, should reasonably be expected to bring from $7,500 to $9,000. Other witnesses quoted estimates under R-6 classification from $16,000 to.$19,000. These values are a far cry from confiscation.

The rear of the subject property is inflicted with a substantial flood plain which creates a drainage problem. At the hearing before the Board of Appeals, appellees produced a registered engineer who testified as an expert that before the property could be subdivided into three lots, the county would require extensive drainage improvements. Together with other expenses such as dedication of a roadway and construction of gutter and curbs, and appellees would thus be forced to expend an estimated $10,500 in engineering costs for less than one acre of residential land. For this reason, appellees contend that the Board would have been guilty of confiscation had it prevented the reclassification to R-A.

Undoubtedly, the appellees would enjoy a greater economic gain from the sale or use of the property under an R-A classification; however, this Court has repeatedly held that the fact that rezoning may result in the realization of greater profits from use of the land or that hardship may follow from the retention of the existing classification is not sufficient justification for rezoning. See Agneslane, Inc. v. Lucas, 247 Md. 612, 614, 233 A.2d 757 (1967); Board of County Commissioners v. Kay, 240 Md. 690, 695, 215 A.2d 206, 208 (1965); Board of County Comm. of Prince George's County v. Edmonds, 240 Md. 680, 689, 215 A.2d 209 (1965); Baltimore City v. Borinsky, 239 Md. 611, 622, 212 A.2d 508, 514 (1965); Reiskin v. Montgomery County Council, 229 Md. 142, 146, 182 A.2d 34 (1963).

Change

The lower court found sufficient evidence of change in the neighborhood in which the subject property is located to make the question of change of character of the neighborhood 'fairly debatable' ² and thus did not disturb the Board's reclassification from R-6 to R-A. We think that finding should be reversed. The lower court indicated that the following changes had occurred in the neighborhood since the adoption of the Comprehensive Zoning Map of 1960: (1) the widening of Frederick Road; (2) changes in the already nonconforming Ridgeway Inn; (3) the development of the Baltimore campus of the University of Maryland; (4)...