Sedney v. Lloyd

• Decision Date: 07 February 1980
• Docket Number: No. 361,361
• Citation: 44 Md.App. 633,410 A.2d 616
• Parties: Raymond SEDNEY et al. v. Stanley E. LLOYD.
• Court: Court of Special Appeals of Maryland

Page 633

44 Md.App. 633

410 A.2d 616

Raymond SEDNEY et al. v. Stanley E. LLOYD.

No. 361.

Court of Special Appeals of Maryland.

Feb. 7, 1980.

John A. Goodman, Bel Air, for appellants Sedney, Joesting and marzicola.

Gregory A. Rapisarda, Asst. County Atty. for Harford County, for appellant, Harford County.

Charles B. Keenan, Jr., Stephen M. Goldberg and Cameron & Reed, Bel Air, for amicus curiae Town of Bel Air.

Edward C. Covahey, Jr., Towson, with whom were Mark S. Devan and Covahey & Boozer, Towson, on the brief, for appellee.

Argued before THOMPSON, MOORE and LISS, JJ.

MOORE, Judge.

After reviewing the record in an appeal from a decision of the County Council of Harford County denying a requested rezoning, the Circuit Court for Harford County (Land, J.) ¹ reversed the council and ordered that the property be rezoned. In this appeal from that order we are asked by the protestants and by Harford County to reverse and order that the decision of the council be affirmed. Chief among the issues in the case is the definition of the neighborhood in which changes permitting the rezoning have occurred and are to be evaluated. The question to be resolved on appeal is whether the Chief Zoning Hearing Examiner's delineation of the neighborhood was "unduly restrictive," and therefore, arbitrary and capricious as found by the circuit court; or whether it was "fairly debatable" as urged by the protestants and Harford County.

I

The subject property is a 3.13 acre parcel situated in Harford County but practically surrounded by the Town of Bel Air. ² In fact, the parcel forms part of the tip of a thin peninsula of Harford County land which is abutted on three sides by Bel Air. Originally, Stanley Lloyd, the property owner, sought to have the property annexed by Bel Air and rezoned from an urban residential district to a commercial zoning category. ³ After he purchased the property, the Court of Appeals decided the case of City of Gaithersburg v. Montgomery County, 271 Md. 505, 318 A.2d 509 (1974) which foreclosed his plans for annexation followed by immediate rezoning. ⁴ On February 7, 1975, Mr. Lloyd filed, with Harford County, a petition for a rezoning of the parcel to B-3 (general business).

In June 1975, a Harford County Planning Department Staff Report recommended that the rezoning be denied. At that time the planning commission of the town recommended that the property be "commercially zoned." Hearings on the proposed rezoning before the Chief Zoning Hearing Examiner of Harford County (Mercedes C. Samborsky, Esq.) extended over the period of September, 1975 to March, 1976. Expert testimony relating to traffic, land planning, and need for additional commercial development was presented on behalf of Mr. Lloyd. Local residents appeared and testified in opposition. The examiner rendered her decision on December 7, 1976; she denied the petition on the ground that the "neighborhood" had not sufficiently changed since the comprehensive zoning of 1957. Mr. Lloyd took the case to the Harford County Council and the council, without elaboration, affirmed the examiner's decision on April 6, 1977. ⁵

From that decision of the county council, Mr. Lloyd appealed to the Circuit Court for Harford County. The petitions to intervene of Harford County, Raymond Sedney, Elizabeth Joesting, and Martin A. Marzicola were granted, and those parties were made defendants in the case. After hearing oral argument, Judge Land reversed the council in a written opinion and ordered that the property be rezoned B-2. In this Court, the protestants and the county claim that Judge Land erred: by personally viewing the subject property; by rejecting the examiner's definition of neighborhood; by failing himself to delineate the neighborhood; by misinterpreting the Maryland "change-mistake" rule; and by failing to consider the public interest. We are asked to reverse the circuit court and to reinstate the decision of the Harford County Council.

II

Under Maryland law, a property owner who relies upon change, as distinguished from mistake, in seeking a zoning reclassification must establish:

"(a) what area reasonably constituted the 'neighborhood' of the subject property . . .

(b) the changes which have occurred in that neighborhood since the comprehensive rezoning and . . .

(c) that these changes resulted in a change in the character of the neighborhood."

Montgomery v. Board of County Commissioners for Prince George's County, 256 Md. 597, 602, 261 A.2d 447, 450 (1970), Appeal after remand, 263 Md. 1, 280 A.2d 901 (1971). In making its decision to grant or deny the rezoning request, the zoning body must address its findings and conclusions to the elements enumerated above. Id.; see also Mayor of Rockville v. Stone, 271 Md. 655, 661, 319 A.2d 536, 540 (1974).

Once a decision has been rendered by the zoning authority, it must be affirmed by a reviewing court if it is, in the language of the cases, "fairly debatable." ⁶ Id.; Pattey v. Board of County Commissioners for Worcester County, 271 Md. 352, 360, 317 A.2d 142, 146 (1974). When a court reviews the administrative record in assessing the propriety of the zoning authority's decision, it may not, of course, substitute its judgment for that of the administrative body. Montgomery County Council v. Pleasants, 266 Md. 462, 465, 295 A.2d 216, 217 (1972).

At the circuit court level, Mr. Lloyd chiefly complained of the zoning hearing examiner's definition of neighborhood. He contended that her delineation of the neighborhood, as routinely confirmed by the county council, was arbitrary and capricious because it included only the 3.13 acre parcel. ⁷ During the hearings before the examiner, Mr. Frank A. Inabinet, a land use planning consultant, testified as an expert witness for the petitioner and described the neighborhood of the property. His definition of the neighborhood extended from Main Street in Bel Air to Winters Run and from the Bel Air By-pass to an imaginary line 2600-3000 feet south of Baltimore Pike but running parallel thereto. These boundaries were between one-half and one mile distant from the subject property. No other witness, either on behalf of Mr. Lloyd or the protestants, testified as to the extent of the neighborhood to be considered in evaluating the petition.

In her decision the hearing examiner rejected Mr. Inabinet's definition and substituted her own:

"It is the Examiner's opinion that the neighborhood designated by Mr. Inabinet far exceeds the bounds of the 'immediate environs of the subject property' . . . . A more appropriate neighborhood for the subject property is that area bounded by the proposed relocation for MD Route 24 between the subject property and the Harford Mall, the Glen Deaton property, the residential area of West Bel Air as it abuts the subject property on the remaining two sides."

In addition, the examiner found that "(t)he Harford Mall is a commercial neighborhood unto itself and has little effect on the use of the residential area adjacent to the subject property."

In Maryland it is now axiomatic that the area constituting the neighborhood of a subject property for the purpose of evaluating change will depend upon the facts and circumstances of each case. See, e. g., Clayman v. Prince George's County, 266 Md. 409, 418, 292 A.2d 689, 694 (1972). The neighborhood must be limited to the "immediate environs of the subject property" and cannot extend for miles in all directions. Pattey v. Board of County Commissioners of Worcester County, supra, 271 Md. at 363, 317 A.2d at 148. That being said, however, we deem it inescapable that the hearing examiner's delineation of the neighborhood in this case was unjustifiably restrictive and not based on any evidence in the administrative record. The circuit court was correct in finding her decision to be arbitrary and capricious.

One possible interpretation of the examiner's opinion is, as found by the circuit court, that the neighborhood "is in fact the lot in question." Of course, such a definition would not comport with law or reality. The concept of "immediate environs of the subject property" implies an area larger than the property itself.

Even the most liberal reading of the examiner's opinion leads to the conclusion that she was "unduly restrictive." The most expansive interpretation of her delineation of the neighborhood would include the residential community of West Bel Air while excluding the Harford Mall abutting the property to the south and the extensive commercial development along Baltimore Pike, only blocks away.

We think that the examiner's definition is defective for two reasons. First, there was no testimony in the administrative record to support her delineation; the only evidence defining the neighborhood was the testimony of Mr. Inabinet, the petitioner's expert. This evidentiary void renders the examiner's decision arbitrary and capricious. There is no evidence in the record of any "honest dispute" over the delineation of the neighborhood which would render the examiner's decision "fairly debatable." Cf. Rockville v. Stone, supra, 271 Md. at 661, 319 A.2d at 540.

Second, the examiner's decision to exclude commercial property abutting the subject parcel in defining the neighborhood of the parcel is similarly arbitrary and capricious. The Harford Mall is a reality which cannot be overlooked in placing the subject parcel in its proper perspective. Normally, the greatest deference must be allowed the zoning authority's judgment regarding the scope of the neighborhood to be drawn; however, the legal requirement remains that the neighborhood delineated by the authority must be "reasonable." Pattey v. Board of County Commissioners for Worcester County, supra, 271 Md. at 363, 317 A.2d at 148. We agree with the circuit court that "(t)o ignore the existence of the Harford Mall and its effect upon the subject property is difficult, if not impossible." The examiner's delineation of the...