Overton v. Board of County Com'rs of Prince George's County, 200

• Decision Date: 03 May 1961
• Docket Number: No. 200,200
• Citation: 225 Md. 212,170 A.2d 172
• Parties: William C. OVERTON, Jr., et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY et al.
• Court: Maryland Court of Appeals

Page 212

225 Md. 212

170 A.2d 172

William C. OVERTON, Jr., et al. v. BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY et al.

No. 200.

Court of Appeals of Maryland.

May 3, 1961.

H. S. Garber and James F. Vance, Oxon Hill (William C. Overton, Jr., Earl W. Williamson and Thomas A. Delaney, Oxon Hill, on the brief), for appellants.

Russell W. Shipley, Upper Marlboro (Robert B. Mathias, Mt. Ranier, and Lionell M. Lockhart, Seat Pleasant, on the brief), for appellee Board of County Com'rs.

Marion E. West, Suitland (West & Venables, Suitland, on the brief), for appellees Helen K. Townshend, Samuel S. Bevard and others.

Before BRUNE, C. J., and HENDERSON, HAMMOND, MARBURY and SYBERT, JJ.

SYBERT, Judge.

This is an appeal from an order of the Circuit Court for Prince George's County affirming an order of the County Commissioners of Prince George's County, acting as the District Council for the Maryland-Washington Regional District of that County, rezoning two contiguous tracts of land in Oxon Hill from R-R (Rural-Residential) to R-18 (Multiple Family, Low Density Residential). This action was recommended by the Planning Board of the Maryland-National Capital Park and Planning Commission, whose duty it is to make recommendations to the District Council on rezoning petitions. The applications for rezoning the two parcels were opposed by the appellants, who are home owners in nearby developments.

The properties in question together constitute a narrow strip of land of 39.15 acres fronting approximately 6,300 feet along Indian Head Highway. The applications (by Townshend, et al. and by Bevard, et al.) were handled together before the District Council and in the trial court and will be referred to as one tract of land hereinafter. The strip varies in width from zero to about 500 feet, with a substantial portion having considerably less than the maximum width. The property runs in a northsouth direction and is bounded on the south by Kerby Hill Road, on the east by Indian Head Highway and a small parcel zoned R-R, and on the west and north by Carey Branch. On the westerly side of the stream, from Kerby Hill Road northward for approximately 4,800 feet, is a subdivision development of cottage type dwellings zoned R-R. The land east of the tract, across the highway, is zoned R-55 (One Family, Detached Residential). South of the tract, on the other side of Kerby Hill Road, is located a small parcel of land zoned C-2 (General Commercial).

The subject property is part of an area which was brought into the Maryland-Washington Regional District by statute in 1957. The District Council, in the comprehensive zoning of the area, placed the property in the R-R zone, denying a petition by the owners at that time to have it zoned C-2. The current application for rezoning, filed in 1959, led to a reconsideration by the Planning Board of this particular parcel, and the Board recommended to the District Council that the property be approved for rezoning to the R-18 classification (which would permit low density apartment building use), on the ground of mistake in the original zoning. The recommendation was adopted by the District Council, after notice and hearing, and, on appeal by the appellants, the rezoning was approved by the Circuit Court for Prince George's County. It is from that decision that this appeal is taken.

The appellants attack the validity of the rezoning upon the following grounds: (1) that there was no substantial evidence of a basic mistake in the original zoning or of a substantial change in the character of the neighborhood to warrant the reclassification; (2) that appellee property owners made no reasonable showing that the R-R zoning of their land would deprive them of reasonable use of it; (3) that the action of the District Council was arbitrary in that the Council failed to heed readily foreseeable conditions which would result from rezoning the parcel from R-R to R-18, such as overcrowding of schools, traffic congestion and other factors.

In our view of this case, the crucial question involved is whether a mistake was made in the original classification of the subject property, and therefore this issue is the only one which we need consider in detail. As appellants properly point out and as this Court has so often stated, in order to sustain a rezoning order, there must be a showing (1) of a mistake in the original zoning, or (2) that the character of the neighborhood has changed to such an extent that a change in the zoning classification is justified. City of Baltimore v. N. A. A. C. P., 1960, 221 Md. 329, 157 A.2d 433; Muhly v. County Council, 1959, 218 Md. 543, 147 A.2d 735. Appellees made no claim that there had been any substantial change in the character of the neighborhood, and therefore that question is not involved here.

In the current applications the appellee property owners originally requested rezoning from R-R to R-10 (Multiple Family, Medium Density Residential). At the hearing before the District Council, appellants introduced a petition signed by 246 persons living in the area west of the subject property objecting to its rezoning for apartment use because 'rezoning would not be in keeping with the character of the area;' there was 'no change in the character of the area to justify this rezoning;' overcrowding of the public schools would result, and dangerous traffic hazards would become much worse. One of the appellants, who was president of the neighborhood citizens' association, testified that the association's membership opposed the rezoning for apartment use. Two other appellants testified in opposition to the applications, and a telegram and three letters from nearby residents were introduced for the same purpose.

The record shows that the applications were studied and considered carefully by the Planning Board of the Maryland-National Capital Park and Planning Commission, the agency which is charged with the duties of planning, and of making recommendations to the District Council with respect to rezoning requests, in the county. The report of the technical staff of the Planning Board, admitted in evidence, reviewed the situation in detail. It is stated that the 'subject property is peculiar in many respects,' and that the applicants are faced with several problems in connection with the development thereof. Among these was the fact that the major portion of the property is lower in elevation than adjoining property and Indian Head Highway, thus subjecting the low-lying parts to flooding from Carey Branch, which bounds the property on the west and north. This, it is pointed out, causes a sizeable drainage problem which has been...