MacDonald v. Board of County Com'rs for Prince George's County, 427

• Decision Date: 05 May 1965
• Docket Number: No. 427,427
• Citation: 238 Md. 549,210 A.2d 325
• Parties: Charles B. MacDONALD et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY and Isle of Thye Land Company.
• Court: Maryland Court of Appeals

Page 549

238 Md. 549

210 A.2d 325

Charles B. MacDONALD et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY and Isle of Thye Land Company.

No. 427.

Court of Appeals of Maryland.

May 5, 1965.

Dissenting Opinion May 25, 1965.

James Vance, in pro. per.

George E. Burgess, Upper Marlboro, (Meloy & Burgess, Upper Marlboro, on the brief), for appellants.

J. Edward Williams, Acting Asst. Atty. Gen., Roger P. Marquis and Edmund B. Clark, Attys., Dept. of Justice, Washington, D. C., on the brief, amici curiae for the U. S.

Robert B. Mathias, Upper Marlboro (Lionell M. Lockhart, Upper Marlboro, on the brief), for Board of County Com'rs of Prince George's County, Md., part of appellees.

Charles T. Finley, Mt. Rainier (Blair H. Smith, Mt. Rainier, and Herbert Reichelt, Hyattsville, on the brief), for Isle of Thye Land Co., other appellee.

Before HAMMOND, MARBURY, SYBERT, OPPENHEIMER, and BARNES, JJ.

OPPENHEIMER, Judge.

Adjacent property owners appeal from an order of the Circuit Court for Prince George's County affirming a zoning action of the Board of County Commissioners for Prince George's County, sitting as a District Council for the Prince George's portion of the Maryland-Washington Regional District (the Council). The Council had approved applications of the Isle of Thye Land Company, one of the appellees (the Land Company), to reclassify three tracts of land all zoned R-R (Rural Residential). Two tracts of approximately nine and three acres respectively were rezoned to C-2 (General Commercial) and the third, of about 29 acres, to R-H (Multiple Family, High Rise Residential).

The three tracts are part of a larger area of 655 acres owned by the Land Company, called Tantallon on the Potomac, located in the southwestern portion of the County on Swan Creek, which empties into the Potomac. The Woodrow Wilson Bridge and the Capital Beltway are four or five miles to the north. Fort Washington National Park, a 341 acre reservation is adjacent to the area on the south and Mount Vernon is across the Potomac River to the west.

All the area is included in the Washington-Maryland Regional District and was zoned R-R by the Council on November 20, 1957. The rezoning applications here involved were filed on June 14, 1962 and later amended. ¹

The technical staff of the Planning Commission recommended denial of all three applications. Its amended report stated, in part:

'The staff, in its review of this application, concludes that the granting of any zone on this property other than the existing R-R Zone, would be spot zoning. The development which has occurred in the area has been that of single family dwellings on larger than minimum lot size standards, and, the changes which have occurred in this area, the Tantallon community included, are a continuation and solidification of this pattern. * * *'

The Planning Board recommended denial of the R-H rezoning for the reasons given by its technical staff. The Board, however, recommended that the two commercial rezonings (as to the nine and three acre tracts) be approved, stating:

'The Board feels that the subject properties are ideal locations for a marina and restaurant and, further, that such proposed uses would be in keeping with the low-density pattern of development proposed in the Preliminary General Plan for this area.'

At the hearing before the Council, the expert witnesses of the Land Company offered voluminous and plausible testimony as to the attractive nature of the plans for the area which it owns. It claimed but offered no evidence to support a mistake in the Master Zoning Map. It relied, instead, upon claimed substantial changes in the area since the adoption of the comprehensive zoning map. The nature of the alleged changes will be considered hereafter. The Chief Engineer of the Planning Commission elaborated upon the reports of the technical staff, and testified that the changes that had occurred in the area of the Land Company's property were oriented towards law density, single family development. Neighboring and adjacent property owners, including the appellants, presented testimony in opposition to the reclassifications, with letters from other protestants, including Secretary of the Interior Udall. ²

The Council, one of the Commissioners dissenting, approved all three of the Land Company's applications for rezoning. The formal notice of the Council gave no reasons for its decision. The only statement in the nature of reasons is contained in what appears to be a press release on behalf of the Council. This release, apart from some extraneous remarks, contained the following statements:

'Commissioner Brooke, in making his motion, pointed out that the several proposed 20-story apartments would be 3400 feet back from the river, 'in a natural valley which would keep them screened from view from the river and the Virginia shore.'

'He also noted expanded highway development in the general area and that neither the Board of Education nor the National Capital Planning Commission opposed the planned community.

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* * *

'In a second action, the Commissioners unanimously approved changes in zoning requested by the Tantallon developers for two sites in the C-2 classification for which the developers proposed to construct a small boat marina and a restaurant. The commissioners asked legal counsel if a lesser degree of commercial classification could suffice for these facilities, but it was determined that C-2 was the only appropriate designation.'

It was also stated that the Chairman of the Council, who votes only in case of tie, had declared himself in sympathy with the zoning request. Commissioner Glayds Spellman, who dissented, in a separate announcement, said in part:

'The changes which have taken place in the area are not sufficient to warrant rezoning from a low density, single family category. * * *

'No need has been established for high density apartments in the middle of an area of extremely low density, other than that of remunerative return for the applicant. * * *

'No proof of error in the original zoning was presented.

'The Isle of Thye Land Company plans high rise apartments on approximately 29 acres, and accordingly requests a change to R-H zoning. However, the use of this zone category in a low-density setting is totally at variance with the purpose of R-H zoning as set forth in the text of the classification * * *.

* * *

* * *

'We must recognize that the District Council is concerned for the County as a whole and not merely 650 acres of the county. It is certainly not reasonable to assume that because a community is well-planned and well-balanced, it may be set down at any point in the County without doing violence to the surrounding areas. Planning must extend beyond the borders of individual communities and encompass the larger areas of the County in order that communities may complement each other rather than inflict harm upon one another.'

There was a hearing on the Petition for Review of the Council's order before Judge Loveless. In his opinion affirming the order, the Judge pointed out that the Land Company had not contended there had been a mistake in the original zoning, and that the court had no alternative other than to say that no mistake had been shown. Judge Loveless referred to the 14 items relied upon by the Land Company as changes in the area since the original zoning was made and held they were sufficient evidence to justify a reclassification if the Council, in its legislative discretion, so decided. He held, further, that the issues were fairly debatable, and that the Board's action in approving the applications was not arbitrary or capricious. We disagree in respect of the Board's order granting the application to rezone the 29 acres for high-rise apartments.

We have repeatedly held that there is a strong presumption of the correctness of original zoning, and that to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or else of a substantial change in conditions. Greenblatt v. Tony Schloss Properties Corp., 235 Md. 9, 13, 200 A.2d 70 (1964); Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 269-270, 192 A.2d 502 (1963) and cases therein cited. The Land Company contends that here comprehensive rezoning is involved, because of the extent of its entire acreage and the nature of its plans for the development of that acreage. However, as Commissioner Spellman points out in her dissent from the Council's order, it is not the proposed treatment of a particular tract within the broad territory encompassed by the original zoning plan which governs; the impingement of the proposed rezoning upon the general plan is the criterion. See Hewitt v. County Com'rs of Baltimore County, 220 Md. 48, 57-60, 151 A.2d 144 (1959). We hold that, in this case, it is proposed piece-meal rezoning which is involved and that the strong presumption of the correctness of the original comprehensive zoning prevails.

The majority of the Council, in effect, gave no reasons for its order. The alleged changes of conditions in the immediate area adduced by the Land Company to support their application to rezone the 29 acres for high-rise apartments, in our opinion, do not constitute evidence sufficient to make the facts fairly debatable. A number of these changes have taken place, or are contemplated, within the Tantallon tract itself. The building of a golf course, the dredging of Swan Creek, the reservation of a school site within the tract, and the authorization of public utility services for the Tantallon enterprise are as consistent with increased rural residential development as they are with the building of highrise apartments. The characterization by the appellants of these alleged changes as 'bootstrap' arguments, in our opinion, is appropriate. The report of the technical staff of the Planning Commission states that the development which has occurred within the area,...