Messenger v. Board of County Com'rs for Prince George's County

• Decision Date: 18 November 1970
• Docket Number: No. 93,93
• Citation: 271 A.2d 166,259 Md. 693
• Parties: Donald B. W. MESSENGER et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY.
• Court: Maryland Court of Appeals

Page 693

259 Md. 693

271 A.2d 166

Donald B. W. MESSENGER et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY.

No. 93.

Court of Appeals of Maryland.

Nov. 18, 1970.

Donald B. W. Messenger, Upper Marlboro, for appellants.

Albert J. Lochte, Associate County Atty. (Lionell M. Lockhart, County Atty., and Harry L. Durity, Deputy County Atty., Upper Marlboro, on the brief) for appellee.

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

BARNES, Judge.

The appeal in this zoning case from an order of December 24, 1969, of Circuit Court for Prince George's County (McCullough, J.) affirming the action of the Board of County Commissioners for Prince George's County, sitting as a District Council (District Council) in denying the application of Donald B. W. Messenger et al., the appellants, to rezone their property in Upper Marlboro, Prince George's County from the R-R to C-O (Commercial Office Building) zone, presents three principal questions for our consideration. These three questions are whether or not the Circuit Court erred (1) in not finding that the action of the District Council was unreasonable, arbitrary, capricious and discriminatory; (2) in not concluding that the District Council had not set forth the findings of fact and conclusions required by the Prince George's County Zoning Ordinance; and, (3) in finding it proper for the District Council to refuse to consider the conditional aspects of the zoning of the subject property until the applicants had established a prima facie case under the Maryland 'change-mistake' rule.

We have concluded that the Circuit Court did not err in regard to any of these matters and we shall affirm the order of December 24, 1969.

The subject property is located at the northeast corner of the intersection of Main Street and the Old Marlboro Pike (Maryland Route 408) in the Town of Upper Marlboro at a distance of approximately 1,000 feet west of the Prince George's County Court House. It is basically rectangular in shape with a frontage along the center line of Main Street of 134.07 feet as its southern boundary, a frontage along Old Marlboro Pike of 147.97 feet as its western boundary and a frontage along Service Lane (20 feet wide) of 153.52 feet as its northern boundary. To the east the subject property adjoins property improved and used for single-family residential purposes. It contains 0.561 of an acre and has water, sewer, electric and telephone services available and connected to the older styled frame dwelling near the center of the site.

The subject property is zoned R-R (Rural-Residential, single-family use with a minimum lot size of $15,000 square feet) and is surrounded by land either zoned R-R or R-80 (single-family use with a minimum lot size of 8,000 square feet). Across Service Lane to the north there is a lot zoned R-80 improved with a single-family dwelling and used for that purpose. Across Old Marlboro Pike to the west the land is vacant, wooded and zoned R-80. To the south of the subject property, diagonally across the intersection of Main Street, Old Marlboro Pike and Church Street, is a former telephone company building now converted to, and currently used as, a computer center by the County government. Two lots removed from the subject property to the east, there is land zoned C-1 (local commercial) which is currently used by retail businesses.

To the east of Water Street between the School House property to the north and Western Branch to the south and east, the land is generally used for commercial purposes. Some areas are zoned C-O. The land lying west of Water Street for 400 feet between Service Lane on the north and a line approximately 200 feet north of Western Branch on the south is zoned generally R-18 (multiple-family, medium density residential) or C-1 (local commercial). To the south of Church Street, some 500 feet southeasterly from the subject property, there is a parcel of land zoned C-O, by application A-6730. To the east of Water Street a parcel of land has recently been rezoned C-O and acquired by Prince George's County as an additional parking area for the Court House. On June 6, 1969, the District Council, upon Application A-7560, rezoned the 'Junkin Property' on the south side of Main Street, located in part west of the westerly division line some 400 feet west of Water Street, between the R-R and other zoning mentioned above. This rectangular parcel has a frontage of approximately 200 feet on Main Street with a depth of approximately 175 feet. It is approximately 500 feet from the easterly boundary of the subject property across Main Street.

The application involving the subject property (No. A-7845) was in due course reviewed by the Technical Staff of The Maryland-National Capital Park and Planning Commission (Planning Commission). The Technical Staff filed its report on January 17, 1969, recommending approval for C-O rezoning of 0.326 acre of 0.561 acre, 0.235 acre having been deducted for a right-of-way to provide, in part, for a 60 foot right-of-way for Main Street and an 80 foot right-of-way for Old Marlboro Pike. After pointing out that the 1964 General Plan for the area recommended residential development of a density of from 3 to 10 dwelling units per acre, the Technical Staff stated that it had approved C-O zoning requests in the area because of the 'ever-increasing need for commercial office facilities in close proximity to the County Court House (some 900 feet east of the subject property).' In addition to this governmental use, the Report stated that the general residential growth around Upper Marlboro was 'creating a demand for expansion of commercial and professional services' and because of physical limitation of sites for such expansion by School House Pond to the north and Western Branch to the south, the 'area surrounding the subject property is the only physical direction for logical and economic expansion.' The Report further stated that there was sufficient lot area on the subject property to make possible the provision for adequate off-street parking in accordance with the requirements of the Zoning Ordinance.

The Planning Commission, on February 19, 1969, recommended to the District Council that 0.326 acre be rezoned C-O with a reservation of 0.235 acre withheld for right-of-way purposes mentioned in the Report of the Technical Staff, but that this approval be made subject to the following conditions:

'1. That the existing structure be renovated in accordance with the Marlboro Architectural Design Ordinance.

2. That the existing landscape be retained.

3. Site Plan approval by the Prince George's Planning Board.'

The Planning Commission stated the three following reasons for its recommendations:

'1. There is a need for additional C-O Zoning in this area.

2. Commercial-office use would be compatible with the existing structure and with existing zoning and land use.

3. C-O Zoning and use would not have an adverse affect on adjacent properties.'

At the hearing before the District Council on May 7, 1969, the applicants produced a well-qualified real estate broker and appraiser who, after reviewing the zoning in the general area and the need, in his opinion, of additional C-O zoning, stated that he was of the opinion that there had been a substantial change in the zoning and land use and that the proposed C-O use was a logical extension of commercial zoning which would not result in any monetary damage to any adjoining properties. On cross-examination, the expert admitted that certain properties, already in commercial classifications, were not being used and some were for sale.

One of the applicants testified that the applicants were willing to accept any reasonable conditions and that he had spoken to some of the residents of the Upper Marlboro area. He stated that 'the predominant view was in favor of our application,' some, however, taking a neutral position. The persons to whom he spoke were 'businessmen primarily.'

Petitions with lists of residents approving the application were introduced, as were Petitions of residents opposing the application. Several zoning maps and the recommendation of the Planning Commission were put into evidence.

The Town of Upper Marlboro has an ordinance for the protection and preservation of the architectural integrity of the Town. Neither the Town nor the Civic Association objected to the application in the present case.

Several neighboring property owners testified in opposition to the granting of the application. The owner of the residential property located immediately to the north of the subject property across Service Lane offered testimony that the subject property is located in an established residential area which has been such since the town was laid out in the 1600's. The proposed commercial-office use would be incompatible with the use of adjacent property and nearby residential homes. The original zoning for residential use was correct and there has been no change in the character of the neighborhood since 1962 when the comprehensive zoning map was adopted. In the opinion of the witness the use of the subject property for commercial offices would have an adverse effect upon the adjacent and nearby residential properties. The subject property is suitable for use as a residence and several people bid on it the day it was sold who wanted to live in the residence now on the property. A substantial amount of land in downtown Marlboro is already zoned commercial and is for sale. Such land includes the former Masonic Hall lot on Main Street, a vacant lot on Main Street across from the Court House, a vacant lot next to the Parish Hall of Trinity Episcopal Church.

One of the owners of the residential property adjoining the subject property to the east testified that she and her sister were opposed to the granting of the application; that they had purchased their property for a house because there were two attractive...