Pallace v. Inter City Land Co., 377

• Decision Date: 29 July 1965
• Docket Number: No. 377,377
• Citation: 212 A.2d 262,239 Md. 549
• Parties: James P. PALLACE, Sr., et al. v. The INTER CITY LAND COMPANY.
• Court: Maryland Court of Appeals

Page 549

239 Md. 549

212 A.2d 262

James P. PALLACE, Sr., et al. v. The INTER CITY LAND COMPANY.

No. 377.

Court of Appeals of Maryland.

July 29, 1965.

Concurring opinion July 30, 1965.

Edward F. Borgerding, Baltimore (Francis X. Borgerding and James P. Pallace, Sr., Baltimore, on the brief), for appellants.

Richard C. Murray, Towson, for appellee.

Before HORNEY, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

The Inter City Land Company (the applicant) filed a petition before the Zoning Commissioner of Baltimore County, in November, 1961, for the reclassification of three parcels of land in a community known as Harford Park. The area is governed by the original zoning of January, 1945, and each of the three parcels is presently zoned R-6 (residence 1 and 2-family). The applicant sought to have the parcels rezoned to R-A zone (residence, apartments). After a public hearing, the Zoning Commissioner denied the application for reclassification as to all three parcels. The applicant appealed to the County Board of Appeals (the Board). At the hearing before the Board, the applicant deleted one of the parcels from its application, restricting the petition to the two lots referred to as Parcels A and B. After a public hearing at which the applicant, its witnesses and the protestants (the appellants and cross-appellees) were heard, the members of the Board, with the permission of the attorneys for both the applicant and the protestants, personally inspected the site. In an opinion filed December 17, 1963 the Board unanimously found that the applicant had failed to prove that there has been sufficient change in the character of the neighborhood to warrant reclassification and that there was no testimony regarding error in the zoning map. The petition for reclassification was denied as to both parcels. On appeal, in the Circuit Court for Baltimore County, Judge Menchine found that the question as to whether changes occurring since the original zoning of 1945 and the nature of the topography were reasonably debatable and that there was no basis for reversal of the Board's decision on these grounds. However, as to Parcel B, the judge found that the land involved was not susceptible of any reasonable use within its present zoning and that the existing zoning classification as to this parcel operates as a constitutional confiscation. The judge affirmed the decision of the Board as to Parcel A, and reversed the Board as to Parcel B with directions to reclassify that parcel from R-6 to R-A. The applicant appealed from the affirmance of the Board's decision as to Parcel A. The protestants appealed from the reversal of the Board's decision as to Parcel B.

Harford Park is a large development owned by the applicant, in the ninth election district of Baltimore County, close to the northern boundary line of the City of Baltimore, to the south of Taylor Avenue, east of Oakleigh Road and west of Old Harford Road. The two parcels of land involved are located in the middle of this development. Parcel A is a generally flat unimproved lot consisting of 14.43 acres, approximately 1500 feet in length and 700 feet at its widest point. Parcel B consists of 1.03 acres; it lies slightly northeast of Parcel A, is 650 feet in length, with a maximum width of 155 feet.

The applicant owned the unimproved land, now known as Harford Park, for many years before 1945. Prior to the since that date, the Park has been developed by the applicant with the building of from 700 to 800 one-family homes, in accordance with the R-6 residential classification. Adjacent land has been improved with individual homes by two other builders.

Four exceptions to the original zoning have been granted in the Park. In April, 1946, a plot of ground of about 3 acres at the northern end of Parcel A and southeast of Parcel B was reclassified from A-residential to E-commercial for a proposed shopping center. The shopping center has not as yet been built but the plot has been developed by the applicant as a community membership swimming pool and recreation center with accessory parking. In December, 1947, 3 1/2 acres, about one-half a mile from Parcel B, were reclassified from A-residential to E-commercial. Although proposed for a shopping center, this land is still unimproved. In April, 1948, a lot 100 feet by 120 feet was reclassified from the R-6 to the R-A zone, and in April, 1949, another small lot was similarly reclassified; a four unit apartment house has been built on each of these lots. All four of these exceptions were granted on the petitions of the applicant.

Outside of Harford Park and on the other side of the applicant's commercial land to the southwest of Parcel A, and unimproved tract was reclassified to B-M (Business-Major) in November, 1955. An apartment structure known as Dutch Village, which has the external appearance of row homes, has been built in Baltimore City, approximately 1000 feet from the southwestern tip of Parcel A, and another apartment structure known as Wellington Gates has been erected in Baltimore City on the far side of Dutch Village over one-half a mile from Parcel A and about a mile from Parcel B.

Herring Run goes through the Hardford Park community. The channel of Herring Run was first approved by Baltimore City as a 40 foot storm drain channel but subsequently has been extended to a 100 foot flood reservation. Contracts have recently been awarded for the construction of Perring Parkway through the Park. The parkway will have a width of 180 feet. This highway almost touches Parcel B at one point and will be removed from Parcel A by only two or three lots.

The applicant contends, as to both Parcels A and B, that the action of the Board in denying the reclassification requested was arbitrary and capricious and that, as to Parcel B, the Board's action in denying the application was an unconstitutional taking of the applicant's property.

I

At the hearing before the Board, the applicant produced as witnesses Mr. L. Allan Evans, a registered surveyor, who is the head of a surveying and engineering company; Mr. William Barnes Hall, the president of the applicant and an experienced builder; and Mr. Frederick P. Klaus, a qualified appraiser and real estate expert.

On the first issue here involved, Mr. Evans testified that he and his predecessor had been engaged in engineering work with the Harford Park development since 1946. Parcel A, in his opinion, could be laid out physically into 45 lots of the R-6 size but it would be necessary to place almost 40,000 cubic yards of fill over the original ground level. As the Board pointed out in its opinion, however, there was conflicting testimony as to the amount of fill needed, its cost, and, indeed, as to whether or not it could be procured without cost. A substantial amount of the required fill, it was shown, was already in place.

Mr. Hall testified as to the changes in the area since the 1945 zoning. Mr. Klaus testified that the highest and best use of both Parcels A and B, under existing circumstances, would be for residential apartments. In his opinion, the erection of apartment houses in the two parcels would create a good transitional zone between the two commercial properties and the development area in the residential zone. Other testimony of the applicant's witnesses referred to the relationship of the parcels to the Perring Parkway and the storm drainage channel with rhe ensuing difficulties of installing a street on Parcel A and the development of Parcel B.

We have repeatedly referred to the strong presumption of the correctness of original zoning. MacDonald v. County Board, 238 Md. 549, 559, 210 A.2d 325 (1965) and cases therein cited. To sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or of a substantial change in conditions. Pahl v. County Bd. of Appeals, 237 Md. 294, 297, 206 A.2d 245 (1965) and cases therein cited. In this case, there is no contention of mistake. Indubitably, there have been some changes since the original classification both within and beyond the large community of Harford Park. However, there was ample ground for the Board to conclude that the changes in zoning classification which had been permitted upon the requests of the applicant within the Park were minimal in nature. The two small apartment houses, surrounded by one-family homes, may well have been considered comparatively insignificant changes; Mr. Hall admitted that between 200 and 300 individual homes had been erected in the Park since he built the last apartment house. The swimming pool which has been erected on a plot rezoned as commercial may be regarded as a service to the existing large one-family residential community. The other lot rezoned as commercial is proposed as a shopping center, a use which we have held is consistent with the needs of an existing residential area. See MacDonald v. County Board, supra, 238 Md. at 557, 210 A.2d 325. The developments outside of Harford Park, the evidence shows, are not inconsistent with the continuation of the development of that community for one-family residences. Some of the changes referred to by the applicant are a substantial distance away from the Park. The applicant argues that the presumption of the correctness of the original zoning has been eroded by time and the changes which have taken place. However, it is at least fairly arguable from the testimony and exhibits that the predominant development since the original zoning has been the continued building by the applicant of hundreds of one-family residences in the Park itself.

As we have repeatedly emphasized, it is not for the courts to zone or rezone; the courts will not substitute their judgments for that of the expertise of the zoning officials. DePaul v. Board of County Com'rs for Prince George's County, 237 Md. 221, 236, 205 A.2d 805 (1965) and cases therein cited.

On a review of all the testimony and...