Mothershead v. Board of County Com'rs of Prince George's County

• Decision Date: 18 November 1965
• Docket Number: No. 411,411
• Citation: 240 Md. 365,214 A.2d 326
• Court: Maryland Court of Appeals
• Parties: Andrew A. MOTHERSHEAD et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY, Maryland, etc., et al.

Page 365

240 Md. 365

214 A.2d 326

Andrew A. MOTHERSHEAD et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY Maryland, etc., et al.

No. 411.

Court of Appeals of Maryland.

Nov. 18, 1965.

Hervey G. Machen, Hyattsville, for appellants.

Harry L. Durity, Upper Marlboro, (Robert B. Mathias an Lionell M. Lockhart, Upper Marlboro, on the brief), for Board of County Com'rs.

Bill L. Yoho, College Park (Robert S. Hoyert and Roy W. Hooten, Hoyert & Yoho, College Park, on the brief), for Stanley H. Maier, Thomas G. Morgan and Arthur F. Lakin, other appellees.

Before PRESCOTT, C. J., HAMMOND, HORNEY, MARBURY, and OPPENHEIMER, JJ., and DULANY FOSTER, and SHIRLEY B. JONES, Special Judges.

FOSTER, Judge.

The appellants, Andrew A. Mothershead and Andrew O. Mothershead, father and contending that their property presently zoned I-1 (light industrial) should be reclassified to I-2 (heavy industrial) so as to permit them to continue to conduct thereon a metal fabricating business, appeal from an order of the Circuit Court for Prince George's County affirming the refusal of the Board of County Commissioners for Prince George's County, sitting as a District Council for the County, to grant the reclassification. They state that the questions presented on this appeal are whether or not the decision of the District Council was fairly debatable and whether or not the zoning ordinance otherwise valid was as applied to their property unreasonable, discriminatory, capricious and arbitrary.

The parcel of land for which the rezoning is sought contains 4.002 acres, being the major portion of a 5.035 acre tract owned by the appellants and located in the City of College Park, Prince George's County, Maryland, with a frontage of 68 feet on the south side of Berwyn Road, an easterly border of 539.83 feet lying contiguous to the main line of the Baltimore and Ohio Railroad, a southerly edge abutting property zoned for light industrial use and a westerly side adjacent to lots (zoned R-55, one-family, detached, residential) improved by single family dwellings. A bird's eye view of the vicinity in which the parcel is situated would reveal in every direction an expanse of residentially zoned property with a major railroad line cutting through the middle, north to south, and a principal highway, Greenbelt Road, (a four lane divided highway) running east to west, just south of center. Nestled along the railroad are numerous plots zoned for commercial use and some zoned for light and heavy industrial, but none of those of the heavy industrial category is south of Greenbelt Road which forms a natural barrier, cutting them off from the subject property. The evolution of this pattern is one common to many rural communities where, before the advent of the automobile, the railroad was the only adequate mode of transportation. Businesses tended to cluster by the railroad tracks and remained there while the residences of the commuters sprawled on either side.

Upon a portion of the subject property for a span of over forty years Andrew A. Mothershead has operated a retail coal and feed business to which he added during this period a building materials department. Early in 1940, the grade crossing at Berwyn Road and the railroad tracks was closed and a new road with an overpass bridging the track was located somewhat to the north. With the elimination of the crossing and the shutting off of the flow of traffic past the store and other commercial enterprises in the neighborhood, the business activity in the area gradually declined. Then, in 1944, Andrew O. Mothershead, the son, came to work with his father and further additions were made to the business, including the sale and delivery of fuel oil. The growth of this latter adjunct induced the installation of two 20,000 gallon oil storage tanks in August, 1948. Moreover, to meet the demands of their customers and competition, they, in violation of the zoning ordinance, expanded their building supply division in 1957 to include the sale of steel beams which were cut to size pursuant to purchase orders, in some instances welded and delivered. Late in the 1950's the steel fabricating operation was incorporated under the name of College Park Fabricators, Inc. By the fall of 1960, the fabricating business had grown to such an extent that it became desirable to erect a shop to house the operation. An application for the building permit was approved, but subsequently rescinded when it was determined that the fabricating of steel fell within the zoning classification of Industrial 2. There followed, in September 1961, a petition by appellants for a zoning map amended as to the 4.002 acres from I-1 to I-2.

An investigation of this petition was undertaken by the Technical Staff of the Maryland National Capital Park and Planning Commission which recommended that the request for I-2 classification be denied. The Planning Board of the Maryland National Capital Park and Planning Commission, thereafter, contrary to their Teachnical Staff's conclusion, suggested that the petition be approved. A public hearing before the Board of County Commissioners of Prince George's County, sitting as a District Council, was then held in January 1962. After receiving all the evidence, the District Council denied the petition. The appellants sought review of the District Council's action in the Circuit Court for Prince George's County, Maryland, which affirmed, through Judge Loveless, the action of the District Council on the grounds that the conclusions from the evidence were fairly debatable and the Court could not substitute its judgment for that of the legislative body. Stanley H. Maier, Thomas G. Morgan, and Arthur F. Larkin were parties to the proceedings by virtue of their Motion for Leave to Intervene made and granted on July 12, 1962.

The subject property, leased to the corporate manufacturer at the time the change in zoning was sought, was I-1 by virtue of the northern portion thereof having been so classified pursuant to the comprehensive zoning map of the county adopted in 1949 and the southern portion pursuant to petition No. A-1787 approved November 21, 1951. However, it should be noted that a part of the northern sector, running through the center of the tract and originally zoned C-2, was placed in the Industrial E zone under petition No. 760, approved June 25, 1946, prior to being included in the I-1 zone established through the 1949 map. The land along Berwyn Road where the store and office are located and running for a distance of about 200 feet toward the rear of the property, or southerly, (not included in the petition for reclassification) is zoned C-2 (general commercial).

The somewhat diffuse attack of the appellants under the initial question posed by them has as its first prong the contention that they did present substantial evidence to the District Council that reclassification was in the public interest and that such evidence is all that is required to sustain their position. They cite Board of County Com'rs of Prince George's County v. Oak Hill Farms, 232 Md. 274, 192 A.2d 761, and quote from the opinion by Judge Hammond to the effect that where the testimony of experts in behalf of the applicants for change, to which no answer was given by the objectors, left no doubt that the public interests (as well as that of the owners of the land) would be best served by the rezoning, the petition should be granted. This placing by the appellants of reliance solely on the strength of their case and the citing of Oak Hill Farms, supra, as authority for justification in so doing cannot carry them successfully forward to a reversal here. Oak Hill Farms, supra, the only authority quoted by appellants for this first proposition, carefully points out that there was 'no' answer by the objectors to the expert testimony, which absence decisively distinguishes it from the case before us where many answers are made. The test is not whether the appellants adduced substantial evidence on behalf of their request for the change, but rather whether or not all the evidence made the issues fairly debatable, there being no denial that appellees did produce evidence in opposition to the rezoning.

Quite contrary to appellant view of the Oak Hill Farms, supra, the Court concluded at p. 283, 192 A.2d at p. 766 that:

'* * * the courts have exercised restraint so as not to substitute their judgments for that of the agency and not to choose between equally permissible inferences or make independent determinations of fact, because to do so would be exercising a non-judicial role.

Rather, they have attempted to decide whether a reasoning mind could reasonably have reached the result the agency reached upon a fair consideration of the fact picture painted by the entire record.

In the cases dealing with consideration of the weight of the evidence, the matter seems to have come down to whether, all that was before the agency considered, its action was clearly erroneous or, to use the phrase which has become standard in Maryland zoning cases, not fairly debatable.'

When commenting on Oak Hill Farms, supra, in MacDonald v. Board of County Com'rs, 238 Md. 549, 210 A.2d 325, the Court said that it affirmed the order of the lower court, in Oak Hill Farms, supra, reversing the Council's action denying the petition because it found that there was no evidence to support the Council's order. The proper question then is whether there was sufficient evidence to support the District Council's decision. We think there was.

After their original thrust, the appellants turn to a broader front and take up the subjects of error in original comprehensive zoning or change in conditions so as to warrant rezoning. However, they very frankly admit that '[t]he record clearly shows by competent evidence of mistake and change the only possible creditable evidence submitted in opposition to the request for rezoning would be contained in...