Offutt v. Board of Zoning Appeals of Baltimore County

• Decision Date: 25 May 1954
• Docket Number: No. 144,144
• Citation: 204 Md. 551,105 A.2d 219
• Parties: OFFUTT et al. v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY et al.
• Court: Maryland Court of Appeals

Page 551

204 Md. 551

105 A.2d 219

OFFUTT et al. v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY et al.

No. 144.

Court of Appeals of Maryland.

May 25, 1954.

James C. L. Anderson, Towson (Frank H. Newell, 3d, and James F. Offutt, Jr., Towson, and Nicholas G. Penniman, III, Baltimore, on the brief), for appellants.

W. Lee Harrison, Towson (Charles W. Held, Jr., and Michael Paul Smith, Towson, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

The Circuit Court for Baltimore County affirmed an order of the Board of Zoning Appeals of Baltimore County reclassifying two tracts of land situated near Owings Mills from an 'A' Residence Zone to an 'F' Light Industrial Zone. Four protesting property owners brought this appeal from the Court's order.

The Zoning Regulations of Baltimore County, which were adopted by the County Commissioners on January 2, 1945, in pursuance of the authority delegated to them by the Baltimore County Zoning Enabling Act, Laws 1941, ch. 247, Laws 1943, ch. 877, divided the county into seven zones. These zones are: 'A' (Cottage) Residence, 'B' (Semi-detached) Residence, 'C' (Apartment) Residence, 'D' (Group) Residence, 'E' Commercial, 'F' Light Industrial, and 'G' Heavy Industrial. Oursler v. Board of Zoning Appeals of Baltimore County, Md., 104 A.2d 568.

The two tracts in question, which have been owned by Dr. and Mrs. James G. Saffell since 1944, are located on the west side of Reisterstown Road, a four-lane highway, about a quarter of a mile south of Owings Mills. Painter's Mill Road divides the two tracts. The tract north of the road contains 26 acres. The tract south of the road contains 19 acres. According to Dr. Saffell, the north tract contains three acres of marshy land, and the south tract contains six acres of marshy land.

Dr. Saffell asserted that the tracts are not adaptable for residential development, not only because they are marshy, but also because a freight line of the Western Maryland Railroad runs along the west side of the tracts at an elevation of 10 or 12 feet above the grade of the tracts. Dr. Saffell further testified that he had farmed his property at a loss ever since he acquired it. When asked why he wanted the tracts rezoned, he said: 'The land itself is too costly to maintain as farm land. I want to sell it to the best advantage.'

Dr. Saffell and his wife contracted to sell the north tract to Gerotor May Corporation, and the south tract to Maryland Cup Company. They then made applications to the Zoning Commissioner of Baltimore County for reclassification of the tracts from residential to light industrial use. The Zoning Commissioner passed two orders, one on November 26, 1952, the other on December 11, 1952, granting reclassification.

The protesting property owners, Thomas W. Offutt, Benjamin Tongue, George B. P. Ward and Garrison Forest School, Inc., appealed from the orders of the Zoning Commissioner to the Board of Zoning Appeals. They made two objections to the reclassification. Their principal objection was that the proposed industrial plants would change the residential and agricultural character of the neighborhood and depreciate the values of their properties. Their further objection was that the plants would cause an increase in traffic on Reisterstown Road with resultant increase in traffic hazards.

The applicants for reclassification presented a petition, signed by about 600 residents of Baltimore County, urging the Zoning Board to grant the applications for rezoning to enable Gerotor May Corporation and Maryland Cup Company to locate on the tracts. The petition declared that the establishment of the two industries 'would be of tremendous advantage to our community, would create employment, would not adversely affect the health, safety, morals or general welfare of our community but would tend to improve same.'

The Board took notice that there are commercial and industrial enterprises along Reisterstown Road at and near Owings Mills. Among these are the Park & Tilford Warehouse, formerly the Owings Mills Distillery, the Baltimore County Supply Company, and the Groff Coal Yard. The Board also took notice that there are commercial enterprises in the village of Garrison, which is about a half mile south of the Saffell farm. The Board further took into consideration the fact that during the nine years since the comprehensive plan of zoning was adopted by the County Commissioners, an electric transformer station had been installed on Dr. Saffell's land along Painter's Mill Road; a natural gas pumping and mixing station had been built on adjacent property to the north; four radio towers had been erected nearby; a large tract of land along the Western Maryland Railroad at Bonita Avenue, known as the Knatz property, had been reclassified from residential to light industrial; and oil storage tanks, an adhesive plant, and a lumber yard had been installed nearby. In view of these changes, the Board found that this locality is not exclusively a residential or agricultural neighborhood; that the two tracts were erroneously classified as 'A' Residence; and that reclassification of the tracts for light industrial use would not be detrimental to the health, safety and general welfare of the community. Accordingly on April 30, 1953, the Board passed an order reclassifying the two tracts from 'A' Residence Zone to 'F' Light Industrial Zone, with the exception of the land adjacent to Reistertown Road for a depth of 250 feet, which remains in 'A' Residence Zone.

On May 28, 1953, the four protestants petitioned the Circuit Court for a writ of certiorari, alleging that the order of the Board was arbitrary and illegal. The protestants complained that while the Board based its decision partly on the petition signed by hundreds of residents of the county urging reclassification, a great majority of the signers lived a number of miles from the tracts in question. The Court issued the writ, and authorized Dr. Saffell and his wife to intervene as parties defendant. The Court found that there was substantial evidence to support the Board's action, and that it was not arbitrary and illegal.

The protestants, appealing here from the Court's order affirming the action of the Board, contended: (1) that there was no mistake in the original zoning, and (2) that there was no evidence of substantial change in the conditions of the neighborhood.

It is universally recognized that zoning is not static. If it could not change with the changing conditions amid the complexities of the modern world, progress would be retarded. A restriction of property use which might be considered reasonable today could be so unreasonable under changed conditions as to amount to confiscation. Zoning officials have the power to alter zone lines from time to time when there are substantial changes in conditions and such alteration has a reasonable relation to the public welfare.

The County Commissioners of Baltimore County have been expressly authorized by the Legislature to vest in the Zoning Commissioner the power to amend, supplement or change from time to time the boundaries of the zoning districts, divisions or zones. Laws 1945, ch. 502, Baltimore County Code, 1948 Ed., sec. 366. The County Commissioners have vested this power in the Zoning Commissioner.

When an application is made for reclassification of a tract of land from one zone to another, there is a presumption that the zones established by the original zoning ordinance were well planned and arranged and were intended to be more or less permanent, subject to change only when there are genuine changes in conditions. Therefore, before a zoning board rezones a property, there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood had changed to such an extent that reclassification ought properly to be made. Kracke v. Weinberg, 197 Md. 339, 347, 79 A.2d 387; Wakefield v. Kraft, Md., 96 A.2d 27; Zang & Sons, Builders, Inc., v. Taylor, Md., 102 A.2d 723, 727.

In the instant case both the Board of Zoning Appeals and the Circuit Court were of the opinion that the County Commissioners had made a mistake in the original zoning of the tracts on January 2, 1945. There could, of course, be room for difference of opinion as to whether the County Commissioners did make a mistake at that time. In any event, there can be no doubt now, after the steady trend in this locality toward industrial use, that there was substantial evidence to support the action of the Board and the Circuit Court.

In the first place, it must be kept in...