Himmelheber v. Charnock

• Decision Date: 08 July 1970
• Docket Number: No. 435,435
• Citation: 267 A.2d 179,258 Md. 636
• Parties: Henry H. HIMMELHEBER v. Ella L. CHARNOCK et al.
• Court: Maryland Court of Appeals

Page 636

258 Md. 636

267 A.2d 179

Henry H. HIMMELHEBER v. Ella L. CHARNOCK et al.

No. 435.

Court of Appeals of Maryland.

July 8, 1970.

Robert C. Verderaime, Baltimore (Verderaime & DuBois, Baltimore, on the brief), for appellant.

Fred E. Waldrop, Towson, for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

BARNES, Judge.

The two principal questions involved in this zoning appeal are whether or not the Circuit Court for Baltimore County (Raine, J.) erred in its order of December 23, 1969, affirming the order of July 22, 1969, of the County Board of Appeals of Baltimore County (Board), granting a zoning reclassification of the subject property from R-10 and R-20 (residential) to B.L. (business-local) upon the petition of Ella L. Charnock (Harold Roll, et al., contract purchaser) because (1) there was no legally sufficient evidence before the Board to support its findings of substantial change in the character of the neighborhood and (2) the uncontradicted evidence before the Board established that the proposed reclassification 'could have an almost disastrous effect' on local traffic conditions in peak periods.

The subject property consists of approximately 4.7 acres of land situated in the Second Election District, Baltimore County, on the south side of Liberty Road approximately 265 feet east of its intersection with Marriottsville Road. The tract is rectangular in shape, having a frontage on Liberty Road of about 270 feet and having a depth ranging between 742 feet and 786 feet. Immediately to the west of the subject property is a newly developed Esso Service Center, being on the southeast corner of Liberty Road and Marriottsville Road. Across Marriottsville Road from the Esso station, on the southwest corner of the intersection, is a Flying 'A' gas station. To the east of the subject property is a Baltimore Gas and Electric Company large tower transmission line right-of-way and the Beth El Cemetery. Directly across from the subject property, on the north side of Liberty Road, is a fully developed shopping center.

In October 1968 Ella L. Charnock (Harold Roll, et al., contract purchaser) filed a petition for reclassification of the subject property from the then existing R-10 and R-20 zones to a B.L. zone in order to develop a small neighborhood shopping center on the front of this tract and a convalescent home on the rear portion. After a hearing on the petition was held on November 14, 1968, the Deputy Zoning Commissioner for Baltimore County passed on order granting the reclassification sought for the subject property. From that order, dated December 19, 1968, Henry F. Himmelheber, a neighborhood resident and appellant in this case, took an appeal to the Board.

On May 28, 1969, the Board conducted its own full hearing on the petition for reclassification of the subject property. Testimony and other evidence presented on behalf of the petitioner-appellee showed that adequate utilities would exist for the proposed development of the tract. Henry LeBrun, real estate appraiser and broker, testified for the petitioner-appellee that numerous changes had occurred in the area since the adoption of the master plan (Western District map) in 1962. He pointed out that the character of the general area, and particularly that of the subject property, had changed from quiet and rural to dense residential and commercial development. In particular, Mr. LeBrun testified to the recent development of the residential communities of Kings Park, Hearnwood, Forest Hills, Pikeswood and Wildwood in the general area. Approximately 2,000 feet east of the subject property, Mr. LeBrun showed three properties which had been reclassified to R.A. (residential-apartment) in 1966 and 1967, permitting the erection of a total of 2,300 apartment units. In the immediate vicinity of the subject property, he testified that in 1965 the Esso Service Center abutting the subject property was built and in 1964 the property directly across Liberty Road, where the shopping center now exists, was reclassified B.L.

The appellant, Mr. Himmelheber, did not deny the existence of these changes in the area, but rather contested the magnitude of their impact on the character of the immediate neighborhood of the subject property. The main thrust of his testimony and that of his expert witness, Eugene Clifford, Director of Traffic Engineering for Baltimore County, was that the proposed use of the subject property would create additional traffic congestion on Liberty Road. Mr. Clifford testified that Liberty Road was only two lanes in the vicinity of the property and that upon his calculations he believed that '(d)uring the peak period this (the proposeed use of the subject property) could have an almost disastrous effect as far as capacity is concerned.' However, on cross-examination he testified that such a neighborhood shopping center and convalescent home as proposed would primarily serve residents in the area and 'would not draw traffic from a great distance away.' Joseph D. Thompson, a traffic expert and witness for the petitioner-appellee...