Mayor and Council of Rockville v. Henley

• Decision Date: 29 March 1973
• Docket Number: No. 198,198
• Citation: Mayor and Council of Rockville v. Henley, 302 A.2d 45, 268 Md. 469 (Md. 1973)
• Parties: MAYOR AND COUNCIL OF ROCKVILLE v. Robert J. HENLEY.
• Court: Maryland Court of Appeals

Page 469

268 Md. 469

302 A.2d 45

MAYOR AND COUNCIL OF ROCKVILLE v. Robert J. HENLEY.

No. 198.

Court of Appeals of Maryland.

March 29, 1973.

Roger W. Titus, City Atty. and Vincent E. Ferretti, Jr., Asst. City Atty., Rockville, for appellant.

Joseph A. Lynott, Jr., Rockville, for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

DIGGES, Judge.

The appellee, Robert J. Henley, is the owner of two lots and the contract purchaser of the three adjoining lots located at the southwest corner of Stonestreet and Frederick Avenues within the corporate limits of the City of Rockville, Maryland. He filed an application with the appellant, the Mayor and Council of Rockville, requesting a rezoning of these lots so as to change their classification from R-60 (single family residential) to I-1 (light industrial). Following a public hearing the appellant, on 23 November 1971, denied this request after concluding that there had been neither a mistake in the comprehensive zoning nor sufficient change in the character of the neighborhood to permit such a reclassification. In addition, appellant rejected the suggestion that the present classification was unconstitutionally confiscatory so as to deprive Henley of all reasonable use of his property. On appeal to the Circuit Court for Montgomery County, Judge Shearin found the issues of change and mistake to be fairly debatable and therefore declined to upset the decision of the appellant on those grounds. However, he did reverse the denial of rezoning after concluding that the present classification was confiscatory. This appeal followed. As to the issues of change and mistake, we will affirm the trial judge's decision since we agree with him that they were fairly debatable. However, we are compelled to reverse his final order as we find error in his conclusion that appellee was denied all reasonable use of his property.

The subjects of this litigation are five lots which, at least since the adoption of the comprehensive zoning plan in 1957, have been classified R-60. They are bounded on the west by the Washington to Chicago main track line of the B. & O. Railroad; on the east by Stonestreet Avenue with residences along its far side zoned R-60; on the north by Frederick Avenue which separates the subject site from two warehouses situated on realty zoned I-2 (industrial), an apartment house built on land zoned I-2, with a residence on the corner zoned R-75 (residential) and on the south by two homes and some vacant lots, all zoned R-60, which are located between appellee's property and a large tract zoned R-60 but used since 1959 by the Montgomery County Board of Education for warehousing, open storage of materials, school buses, and trucks. This 'quasi industrial' use is permitted for a publicly owned or operated facility in a residential zone.

Beyond the immediate vicinity, on the east side of the railroad tracks, is a residential community which extends for several blocks with small well kept homes. This entire expanse is zoned R-60 with the exception of those properties mentioned above, a group of apartments one block east of the subject site, and two small lots sandwiched between residences and situated across Stonestreet Avenue from the School Board, which in 1962 were rezoned from R-60 to I-1 as a result of this Court's decision in England v. Rockville, 230 Md. 43, 185 A.2d 378 (1962). These two lots remained undeveloped at the time of the hearing in this case and, in fact, an application for reclassification to R-75 was then pending. On the west side of the tracks is land zoned for industrial and commercial use. While the area east of the railroad may not qualify for the appellation of Camelot, it has the appearance of a suburban residential neighborhood interspersed with minimal storage facilities and proximate to some commercial and light industrial development.

The law which controls our decision in this case has been discussed by this Court in numerous cases. We have made it abundantly clear that:

'there is a strong presumption of the correctness of original zoning and comprehensive rezoning and that to sustain a piecemeal change therefrom there must be produced strong evidence of mistake in the original zoning or else evidence of a change in conditions resulting in a substantial change in the character of the neighborhood.' Heller v. Prince George's County, 264 Md. 410, 412, 286 A.2d 772, 773 (1972).

And the burden of proving change or mistake which rests on the applicant is quite onerous. In demonstrating change in the neighborhood, the applicant must show:

'(a) what area reasonably constituted the 'neighborhood' of the subject property, (b) the changes which have occurred in that neighborhood since the comprehensive rezoning and (c) that these changes resulted in a change in the character of the neighborhood.' Montgomery v. Bd. of County Comm'rs for Prince George's County, 256 Md. 597, 261 A.2d 447 (1970). See also Clayman v. Prince George's County, 266 Md. 409, 292 A.2d 689 (1972); Heller v. Prince George's County, supra.

But, such proof of change merely permits the legislative body to grant the requested rezoning; it does not compel it to do so. Hardesty v. Dunphy, 259 Md. 718, 271 A.2d 152 (1970); Messenger v. Bd. of County Comm'rs of Prince George's County, 259 Md. 693, 271 A.2d 166 (1970). Finally, we have further stated that where there is sufficient evidence before the legislative body to render the issues of change or mistake 'fairly debatable', a court may not substitute its judgment for that of the legislative agency. Smith v. County Comm'rs of Howard County, 252 Md. 280, 249 A.2d 708 (1969).

Concerning the question of mistake, we agree with Judge Shearin that the evidence before the Mayor and Council was not substantial enough even to make that issue fairly debatable. The only testimony on the question was the bald assertion by appellee's expert witness, Mr. Dieudonne, a qualified realtor and appraiser, who simply responded to the question 'do you think the present zoning is the correct zoning, R-60' by saying 'No, sir, I think that is wrong.' And then, when asked what would be the proper classification, answered, 'I-1, and I think that would stabilize that area and I don't believe there would be an infiltration into the Lincoln Park sector of residential homes.' These naked declarations unsubstantiated by facts, are insufficient to overcome the presumption of correctness which attaches with the adoption of a comprehensive zoning plan. Smith v. County Comm'rs of Howard County, 252 Md. 280, 249 A.2d 708 (1969).

As we turn to the question of whether there is a change in the character of the neighborhood, we preface our discussion with a comment that the record pertaining to this issue leaves much to be desired. But, from what we can ascertain from a confused batch of schedules and plats, frequently unlabeled, undated, and uncoded, most of the changes listed and relied on by appellee are several blocks south of the subject site or on the wrong side of the railroad tracks. There are, however, a few changes in the immediate vicinity. First there is a parcel located at the northwest corner of North Stonestreet and Frederick Avenues, formerly zoned C-2 (general commercial), which was, in the early 1960's, partly rezoned R-75 and partly I-2. However, the I-2 portion of this property is...