Shadynook Imp. Ass'n v. Molloy

• Decision Date: 12 July 1963
• Docket Number: No. 330,330
• Citation: 192 A.2d 502,232 Md. 265
• Parties: SHADYNOOK IMPROVEMENT ASSOCIATION, Inc., et al. v. Lawrence W. MOLLOY.
• Court: Maryland Court of Appeals

Page 265

232 Md. 265

192 A.2d 502

SHADYNOOK IMPROVEMENT ASSOCIATION, Inc., et al. v. Lawrence W. MOLLOY.

No. 330.

Court of Appeals of Maryland.

July 12, 1963.

John H. Hessey, IV, Baltimore (Hessey & Hessey and Mahlon W. Hessey, Baltimore, on the brief), for appellants.

Kenneth C. Proctor, Towson (Proctor, Royston & Mueller, Towson, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

BRUNE, Chief Judge.

In this case neighboring property owners and a neighborhood improvement association ¹ appeal from an order of the Circuit Court for Baltimore County affirming the action of the County Board of Appeals in granting the appellee's application for the rezoning of a tract of 4.7 acres of land in the Catonsville area from 'R-6' to 'R-A.' The R-6 zone in Baltimore County is for one or two-family residential use, with an area of 6,000 square feet for a one-family dwelling and of 10,000 square feet for a two-family dwelling. The R-A zone is or residential use as apartments. The R-G zone, which is also mentioned in this case, is for group house dwellings and is intermediate between R-6 and R-A.

The property here in question is roughly triangular in shape. It lies on the westerly side of Maiden Choice Lane, to the south of a development known as Tanglewood (where the individual protestants own property), and to the north and east of a branch railroad line which curves around it. The railroad usually operates one train (a very short one) in each direction for five days a week, and the train is operated at a low speed. Tanglewood is zoned as R-6, and is a development of attractive houses of the cottage type. Three lots fronting on Maiden Choice Lane which were originally a part of the subject tract have also been developed by the construction of houses of similar type. All of the nearby property west of Maiden Choice Lane and east of the Beltway is zoned R-6 or is publicly owned, mainly by Baltimore County, which has acquired its land in the vicinity for school purposes. On the east side of Maiden Choice Lane opposite the subject property and extending about 200 feet north of it is a narrow strip zoned as R-6, which is occupied by residences which, in outward appearance, are of a cottage type similar to the homes in Tanglewood. Actually, they are single-entrance, two-story apartments, for occupancy by one family on each floor. Behind them, to the east, is a larger tract zoned as R-G, upon which two-story, fourfamily apartments have been built. To the east, northeast, and southeast of these apartments is a rather large national cemetery, the southwest corner of which projects to the northeast intersection of the branch railroad line and Maiden Choice Lane. It has a frontage of perhaps a hundred feet on Maiden Choice Lane opposite the southeast corner of the subject property. Also on the east side of Maiden Choice Lane and to the south of the subject property are two pieces of property, one of which is owned by the City of Baltimore and is used for a school, and the other of which, containing over a hundred acres, is owned by St. Charles College. There is another institutional property on the west side of Maiden Choice Lane a little to the south of the appellee's property. This belongs to a convent of a cloistered order. Both the College and the convent were among those protesting the change of zoning of the subject property.

The whole area here involved was rezoned on April 5, 1960, in accordance with a comprehensive zoning map then approved by the County Council, and the subject property was thereby continued in an R-6 zone. The appellee filed his petition for rezoning on October 15, 1961 (which was about as promptly as he could do so), it was denied by the Zoning Commissioner on December 4, 1961, after due notice and a hearing, and it was approved by the County Board of Appeals, also after due hearings, on August 16, 1962, by a 2-1 vote of the Board. The order of the Circuit Court affirming this action of the Board was filed on December 5, 1962. The appellee concedes that there has been no change in the neighborhood since April 5, 1960, which would warrant a change in zoning, and the ultimate question upon which the case turns is whether there was an error on the part of the County Council in zoning the tract in question as R-6 in April, 1960. The Zoning Commissioner found that there had not been and one member of the Board of Appeals agreed with him. One of the others flatly disagreed and held that there had been an error in the 1960 rezoning. The third member, the Chairman, in a separate opinion, which is actually rather equivocal on the question of error, concluded that the application for rezoning should be granted. The Circuit Court filed an opinion holding that there had been substantial evidence before the Board of error in the 1960 rezoning and that its action was therefore not to be upset by the court, and entered the order appealed from affirming the Board's action.

The appellee concedes that under the well established rule in this State, there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or in the comprehensive rezoning or else of a substantial in conditions. See, for example, Hewitt v. County Com'rs of Baltimore County, 220 Md. 48, 57, 151 A.2d 144; McBee v. Baltimore County, 221 Md. 312, 315-317, 157 A.2d 258; Trustees of McDonough Educational Fund and Institute v. Baltimore County, 221 Md. 550, 560-561, 158 A.2d 637; Town of Somerset v. County Council for Montgomery County, 229 Md. 42, 48, 181 A.2d 671; George F. Becker Co. v. Jerns, 230 Md. 541, 545, 187 A.2d 841. Since it is also conceded that no question of changed conditions is involved, we shall confine ourselves to alleged mistake in the 1960 rezoning.

The appellee's claim that there was error in the zoning of his land in the 1960 comprehensive rezoning rests upon these contentions: (a) that the areas across Maiden Choice Lane, upon which apartment buildings had been erected, were improperly zoned as R-6 and R-G and should have been rezoned as R-A to conform to their actual use; (b) that the school property owned by the City of Baltimore to the east of Maiden Choice Lane should have been shown on the 1960 zoning map submitted to the Council as publicly owned [the map is so marked and colored as to suggest institutional, and not public, ownership] and should not have been so marked or colored as to show a part of it...