Howard County, Md. v. Dorsey

• Decision Date: 06 January 1982
• Docket Number: No. 73,73
• Citation: 292 Md. 351,438 A.2d 1339
• Parties: HOWARD COUNTY, MARYLAND et al. v. William P. DORSEY.
• Court: Maryland Court of Appeals

Page 351

292 Md. 351

438 A.2d 1339

HOWARD COUNTY, MARYLAND et al. v. William P. DORSEY.

No. 73.

Court of Appeals of Maryland.

Jan. 6, 1982.

Carol B. O'Keeffe, Asst. County Sol., Ellicott City (Timothy E. Welsh, Co., Sol., Ellicott City, on the brief), for appellants.

Rebecca Bryant and Bernard F. Goldberg, Ellicott City, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DAVIDSON, Judge.

This case presents the question whether the County Council of Howard County (Council) ¹ committed basic and actual "mistake" or "error" as those interchangeable terms are used in zoning law, when it adopted a comprehensive zoning map amendment.

The subject property, owned by William P. Dorsey (owner), is located within an area of land bounded on the north by Snowden River Parkway, on the east by Oakland Mills Road, and on the southwest by the Baltimore and Ohio railroad tracks. The railroad tracks run through the northern portion of an area known as Guilford.

The subject property, consisting of 4.76 acres, is bounded on the north by Berger Road and on the east by Oakland Mills Road. It is presently zoned R-12 (Residential-Single 12,000 square foot minimum lot size). A single-family dwelling located at the northeast corner of the subject property and fronting on the south side of Berger Road is the only development existing on the subject property. On the west it is bounded by approximately six acres of land, zoned R-12, upon which approximately four or five dwellings are developed, one of which is used as commercial office space. Confronting the western portion of the subject property on the north and across Berger Road is a parcel of land, consisting of approximately three acres, that is zoned R-12 and is improved by a single-family dwelling. The approximately 15 acres of residentially zoned land of which the subject property is a part are surrounded by land zoned NT (New Town), most of which is developed or being developed for industrial use.

The subject property was classified in the R-20 zone (Residential-Single 20,000 square foot minimum lot size) by the comprehensive zoning map which preceded that of 1977. On 3 October 1977, the Council adopted a comprehensive zoning map amendment that reclassified the subject property to the R-12 zone.

Within five months of the adoption of the comprehensive zoning map amendment, the owner petitioned the Council for a piecemeal reclassification of the subject property to the M-1 zone (Manufacturing-Light), alleging, in essence, that there was an error in the comprehensive zoning with respect to the subject property. After a hearing, the Council concluded that the comprehensive zoning was not in error in reclassifying the subject property to the R-12 zone. In its opinion, the Council said in pertinent part:

"1. That the Board had considered the subject parcel in the course of its deliberations in formulating the comprehensive zoning map, a part of the Comprehensive Zoning Plan adopted October 3, 1977, held a specific public hearing thereon and at that time the parcel had been reclassified from an R-20 to an R-12 residential classification.

"2. The Board further finds that there was no mistake in placing this parcel in the R-12 zoning classification at that time.

"3. The Board agrees with the finding of the Department of Planning and Zoning of Howard County that the proposed zoning change is not in accordance or in harmony with the land use as shown on the Howard County General Plan adopted December 6, 1971, as amended on August 2, 1976. All as shown on protestants' exhibit # 1, filed in the case."

Accordingly, the Council denied the requested reclassification to the M-1 zone.

On 2 October 1978, the owner appealed to the Circuit Court for Howard County. On 17 September 1979, a decision and order was filed indicating that there was error in the comprehensive zoning, reversing the order of the Council, and ordering the reclassification of the subject property to the M-1 zone. The Council appealed to the Court of Special Appeals which affirmed the decision of the Circuit Court. Howard County, Maryland v. Dorsey, 45 Md.App. 692, 416 A.2d 23 (1980). The Council filed a petition for a writ of certiorari that we granted. We shall reverse the judgment of the Court of Special Appeals.

This Court has repeatedly recognized that there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that "strong evidence" of error is required to overcome that presumption. Pattey v. Board of County Comm'rs for Worcester County, 271 Md. 352, 359, 317 A.2d 142, 146 (1974); Wakefield v. Kraft, 202 Md. 136, 141-42, 96 A.2d 27, 29 (1953). In Trainer v. Lipchin 269 Md. 667, 672-73, 309 A.2d 471, 474 (1973), this Court, quoting from Stratakis v. Beauchamp, 268 Md. 643, 652-53, 304 A.2d 244, 249 (1973), said:

" ' ... Where a legislative body, or a board of county officials, pursuant to authority conferred upon it, has granted a rezoning of property, the question on judicial review is whether or not such action is arbitrary and discriminatory or fairly debatable. We shall follow that test in considering this appeal.

" 'While, in recent years, we have had occasion to enunciate a number of important principles applicable to the law of zoning, perhaps none is more rudimentary than the strong presumption of the correctness of original zoning and of comprehensive rezoning. To sustain a piecemeal change in circumstances such as those present here, strong evidence of mistake in the original zoning or comprehensive rezoning or evidence of substantial change in the character of the neighborhood must be produced. Since, as we have also said, this burden is onerous, the task confronting appellants (appellees), whose application followed the comprehensive rezoning by merely four months, is manifestly a difficult one.' " (Emphasis in original.) (Citations omitted.)

See also Pattey, 271 Md. at 359-60, 317 A.2d at 146. Because under this test "strong evidence" of error is required to make the issue of mistake in comprehensive zoning fairly debatable, it is only if such strong evidence is presented by the applicant that property can be reclassified.

Here the Council found that the evidence adduced by the owner was insufficient to overcome the presumption of correctness which attached to the 1977 comprehensive zoning map amendment that reclassified the subject property to the R-12 zone. It concluded that the owner failed to establish that there was "mistake" or "error" in the comprehensive zoning map amendment of 1977 and, therefore, refused to reclassify the subject property to the M-1 zone. The trial court and the Court of Special Appeals disagreed. They determined that the evidence was sufficient and ordered the subject property to be reclassified to the M-1 zone.

In order to assess the evidence before the Council, it is necessary to understand the inherent nature of the terms "mistake" or "error" as they are used in zoning law. In considering that question, the Court of Special Appeals in Boyce v. Sembly, 25 Md.App. 43, 50-53, 334 A.2d 137, 142-43 (1975), said:

"A perusal of cases, particularly those in which a finding of error was upheld, indicates that the presumption of validity accorded to a comprehensive zoning is overcome and error or mistake is established when there is probative evidence to show that the assumptions or premises relied upon by the Council at the time of the comprehensive rezoning were invalid. Error can be established by showing that at the time of the comprehensive zoning the Council failed to take into account then existing facts, or projects or trends which were reasonably foreseeable of fruition in the future, so that the Council's action was premised initially on a misapprehension. Bonnie View Club v. Glass, 242 Md. 46, 52-53, 217 A.2d 647, 651 (1966); Jobar Corp. v. Rodgers Forge Community Ass'n., 236 Md. 106, 112, 116-118, 121-22, 202 A.2d 612, 615, 617-18, 620-21 (1964); Overton v. County Commissioners, 225 Md. 212, 216-17, 170 A.2d 172, 174-76 (1961); see Rohde v. County Board of Appeals, 234 Md. 259, 267-68, 199 A.2d 216, 218-19 (1964). Error or mistake may also be established by showing that events occurring subsequent to the comprehensive zoning have proven that the Council's initial premises were incorrect. As the Court of Appeals said in Rockville v. Stone, 271 Md. 655, 662, 319 A.2d 536, 541 (1974):

'On the question of original mistake, this Court has held that when the assumption upon which a particular use is predicated proves, with the passage of time, to be erroneous, this is sufficient to authorize a rezoning.'

See Rohde, supra, at 234 Md. 267-68, 199 A.2d 220-21; England v. Rockville, 230 Md. 43, 45-47, 185 A.2d 378, 379-80 (1962); Pressman v. Baltimore, 222 Md. 330, 338-39, 160 A.2d 379, 383 (1960); White v. County Board of Appeals, 219 Md. 136, 144, 148 A.2d 420, 423-24 (1959); cf. Dill v. The Jobar Corp., 242 Md. 16, 20-21, 24, 217 A.2d 564, 567-68 (1966); Marcus v. Montgomery County Council, 235 Md. 535, 540-41, 201 A.2d 777, 780 (1964); Offutt v. Board of Zoning Appeals, 204 Md. 551, 558, 105 A.2d 219, 221-22 (1954); Wakefield v. Kraft, 202 Md. 136, 144-45, 149, 96 A.2d 27, 30 (1953); Hoffman v. City of Baltimore, 197 Md. 294, 307, 79 A.2d 367, 373-74 (1951).

"It is presumed, as part of the presumption of validity accorded comprehensive zoning, that at the time of the adoption of the map the Council had before it and did, in fact, consider all of the relevant facts and circumstances then existing. Thus, in order to establish error based upon a failure to take existing facts or events reasonably foreseeable of fruition into account, it is necessary not only to show (1) the facts that existed at the time of the comprehensive zoning but also (2) which, if any, of those facts were not actually considered by the Council. This evidentiary burden can be...