McBee v. Baltimore County

• Decision Date: 20 January 1960
• Docket Number: No. 118,118
• Citation: 157 A.2d 258,221 Md. 312
• Parties: Keith W. McBEE et ux., et al. v. BALTIMORE COUNTY, Maryland, and Cornelius V. Roe, et ux.
• Court: Maryland Court of Appeals

Page 312

221 Md. 312

157 A.2d 258

Keith W. McBEE et ux., et al. v. BALTIMORE COUNTY, Maryland, and Cornelius V. Roe, et ux.

No. 118.

Court of Appeals of Maryland.

Jan. 20, 1960.

Harrison L. Winter, Baltimore (Robert L. Karwacki, Baltimore, on the brief), for appellants.

Walter R. Haile, Deputy County Solicitor, Towson (Johnson Bowie, County Solicitor, Towson, on the brief), for Baltimore County, appellee.

Richard W. Case, Baltimore (Roger D. Redden, Smith, Somerville & Case, Baltimore, on the brief), for Cornelius V. Roe, et ux., appellees.

Before HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

This appeal is from a decree passed June 5, 1959, dismissing a bill of complaint filed in 1956, seeking injunctive and declaratory relief against the action of the County Commissioners of Baltimore County in reclassifying from residential (R-6) to business local use (B-L), a portion of a tract of land owned by the appellees, Roe. The appellants make two main contentions, (1) that the action was arbitrary, capricious, discriminatory or illegal, and (2) that a prior decision in 1947, by the circuit court, Judge Murray, affirming a finding of the Board of Zoning Appeals as to traffic hazards, was res judicata.

The Roe property in question, containing about four acres of ground, is located on the east side of Bellona Avenue, in what is known as Ruxton, between its intersections with Malvern Avenue and Ruxton Road. To the east, adjoining the property reclassified, the Roes own other property on which is a substantial residence. Just south of the Roe property and across Bellona Avenue is an Esso gas station. Parallel to Ballona Avenue and to the west thereof is the main line of the Pennsylvania Railroad to Harrisburg. Across the tracks and to the west is the L'Hirondelle Club, with its swimming pool and tennis courts. Immediately to the north of the Roe property, separated by Ruxton Road, is an Amoco gas station; next to it to the north, a building used by a cleaning and dyeing concern; next, the Ruxton Pharmacy, and a blacktop parking area. Facing this area are: the Wilmington Country Store, the Ruxton Hardware Store, a snack shop, a dress shop, and a dentist's office. Immediately to the north, across La Belle Avenue, are: a cleaning establishment, a beauty shop, a bakery store, a liquor store, a grocery store and two small parking areas, one in front of and one to the north of these establishments. Existing parking facilities for the commercial establishments described above are inadequate, there being a deficiency, according to one witness, of from forty to sixty spaces. Ruxton has been a residential community for many years, but there was testimony that the population in the Ruxton area had doubled since 1941 and that many new houses had been built. It was agreed that there are still large tracts of undeveloped land available for future residential development, and that such development will probably bring additional demand for commercial areas somewhere in the vicinity. The contest hinges upon the appropriateness of the Roe tract to fulfill such future needs.

On January 2, 1947, the Zoning Commissioner of Baltimore County granted a petition to reclassify the Roe property from A residential to E commercial under the 1945 Zoning Act. He stated that when the original Act had been passed it had been 'seriously considered to extend the commercial area to include the area' in question, and that the tract was best suited for commercial development, and quite unsuited for residential development. The Board of Zoning Appeals reversed, but gave no reasons for its action. On appeal to the circuit court, the board was affirmed, the court stating that it thought the question of traffic hazard was fairly debatable on the record, and applying the substantial evidence rule.

In 1955 the county promulgated a new comprehensive scheme of zoning regulations. A change in classification of the Roe property in question was recommended, in turn, by the Staff of the Planning Commission, the Commission itself, and the Zoning Commissioner. It is conceded that all of the requisite procedural steps for the adoption of the new land use maps and zoning regulations were taken. All of the officials concerned agree that the Roe property was appropriate for commercial zoning as a normal extension of existing commercial properties which surrounded it on three sides. After various hearings, the County Commissioners adopted the proposal and map on January 10, 1956.

The appellants produced evidence in the trial below, that there had been no marked change in the character of the neighborhood since 1945, and that the volume of traffic on Bellona Avenue had doubled. The Baltimore Beltway had, of course, been constructed some distance to the north, and before the time of trial it had been connected with the Charles Street extension to the east. There was testimony of a proposal to widen Bellona Avenue in 1960, but it was conceded that the work might be postponed because of delay in the so-called Twelve Year Plan and increasing costs. There was also testimony that travel on Bellona Avenue was dangerous, and that additional commercial facilities would increase the danger, but it was further testified that even without improvement of the road, there would be no congestion with a properly designed turn-off or intersection into the parking area serving the proposed commercial development. It...