Spaid v. Board of County Com'rs for Prince George's County

• Decision Date: 22 October 1970
• Docket Number: No. 47,47
• Citation: 259 Md. 369,269 A.2d 797
• Parties: Glen L. SPAID et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY sitting as the District Council for the Maryland-Washington Regional District in Prince George's County.
• Court: Maryland Court of Appeals

Page 369

259 Md. 369

269 A.2d 797

Glen L. SPAID et al. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY sitting as the District Council for the Maryland-Washington Regional District in Prince George's County.

No. 47.

Court of Appeals of Maryland.

Oct. 22, 1970.

Charles L. Richards, Silver Spring, for appellants.

Albert J. Lochte, Associate County Atty. (Lionell M. Lockhart, County Atty., and Harry L. Durity, Deputy County Atty., Upper Marlboro, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

BARNES, Judge.

The question presented to us in this appeal in a zoning case is whether the Circuit Court for Prince George's County (Mathias, J.) erred in affirming the refusal of the Board of County Commissioners of Prince George's County, sitting as the District Council for the Maryland-Washington Regional District in Prince George's County (District Council) to rezone the two parcels of land of the appellants involved in this case from the R-R (Rural Residential) zone to the I-2 (Heavy Industrial) zone because that refusal was arbitrary, unreasonable and capricious and denied the appellants as owners of the property due process of law. We have concluded that the lower court did err in affirming the District Council's action.

There are two tracts of land involved in the present case. The are both located on the Old Baltimore Washington Turnpike in close proximity to each other, but are separated by a small intervening parcel of land. They are in the same block and one of the appellants appears to have an interest in both properties. Both cases were heard together before the District Council and the cases were consolidated and heard together before the lower court on appeal to that court.

One property is involved in Application No. A-6812, filed on July 14, 1966, which sought a reclassification from the R-R zone to the I-2 zone for 1.0325 acres. The applicant, Glen L. Spaid, one of the appellants, owned this 1.0325 parcel. The property is bounded on the east by the right-of-way of the Old Baltimore and Washington Turnpike, 80 feet wide, and has a frontage on that road of approximately 220 feet. On the north, the property line of approximately 216 feet adjoins the land of the Inter-City Industrial Center, Inc. and the westerly line of approximately 229 feet also adjoins the land of Inter-City Industrial Center, Inc. The southerly line of approximately 219 feet adjoins the land of James L. Bohrer, on which there is a single-family dwelling, a garage and a stable. Farther to the southwest is the Pressure Science, Inc. building. On the property involved in Application No. 6812 is a one-story single-family dwelling, a shingle garage and a frame stable.

The other property is involved in Application No. 6813. This application was filed on July 14, 1966 (the same filing date as Application No. A-6812), by its owner, Orndorff & Spaid, Inc., a Maryland Corporation, which sought a zoning reclassification from the R-R zone to the I-2 zone for 1.479 acres. This property is a rectangular property. For its easterly boundary, it has a frontage of approximately 401 feet on the Old Baltimore and Washington Turnpike. For its northerly boundary, it has a frontage of approximately 145 feet on the right-of-way of Ammendale Road, 70 feet wide. It is bounded on the west by a narrow strip of land, approximately 5 feet in width zoned R-R, to the west of which is land zoned I-2, for a distance of approximately 450 feet, and on the south by land zoned R-R. The land involved in Application No. A-6812 lies some 312 feet to the south of the land involved in Application No. A-6813. In Application No. A-6813 the property is a one-story, stucco and frame single-family dwelling and a garage.

With the exception of a buffer strip the entire area lying roughly between the tracks of the Baltimore and Ohio Railroad Company and the Old Baltimore and Washington Turnpike had been rezoned to the I-2 zone. The 'buffer strip' measured 150 feet in depth from the westerly side of the Turnpike to the west and it extended south from a point somewhat north of Ammendale Road to Odell Road, also called by the intriguing name of Swampoodle Road, approximately 1400 feet south of the property involved in Application No. A-6812.

The Amended Report of the Technical Staff of the Maryland-National Capital Park and Planning Commission (Planning Commission), released May 24, 1968, considered both applications together. The Technical Staff recommended the denial of both applications and in the discussion in its report stated:

'These two parcels of land are located within the area covered by the Fairland-Beltsville Master Plan, adopted Jan. 24, 1968, which proposes R-55 zoning for the subject properties and those in close proximity along both sides of Old Baltimore Pike. It is the intent of this report to include the proposals and text of the Adopted Plan as part of this report.

'The proposals of the Plan and the ultimate recommendations of this report reflect the continued belief that industrial development should not encroach along this section of Old Baltimore Pike. It is believed that this encroachment would jeopardize existing and proposed residential areas for more intensive use. Previous zoning decisions have established a one lot set back (approximately 150 ft.) for industrial uses along Old Baltimore Pike as a buffer.

'The industrial requests would, if granted, inject industrial frontage on Old Baltimore Pike. Although there is one such enterprise, Pressure Science, Inc., located a short distance to the southwest of subject petition A-6812, it is set far off the main thoroughfare. Industrially zoned land is quite extensive in the area west of the subject petitions to the B & O Railroad. The industrial complex to the west has adequate industrial sites available, some with direct access to the railroad, to serve the needs of the area and county without jeopardizing residential areas of the county.'

The Report assigned three reasons for the recommended denial:

'1. The requested reclassifications are not in accordance with the Fairland-Beltsville Master Plan, adopted January 24, 1968.

'2. Industrial zoning and development along this section of Old Baltimore Pike would jeopardize adjacent and nearby residential land for a more intensive use.

'3. There is adequate industrial land, in the form of an industrial complex with good highway and railroad access, both existing and proposed to the west of the subject parcels to serve the industrial needs of the area.'

The Planning Commission on June 26, 1968, also recommended denial of the two applications giving the identical three reasons contained in the Report of the Technical Staff.

At the hearing before the District Council the applicants offered the testimony of two well-qualified experts, James F. Sheehan, a planning consultant for 22 years, and E. L. Dieudonne, Jr., a real estate broker and appraiser for 30 years, and a frequent expert witness in zoning cases.

Mr. Sheehan testified in regard to the subject properties and the properties in the general area. He stated that practically everything in the corridor between the Baltimore Boulevard and the Old Baltimore-Washington Turnpike 'is an industrial use. There is practically no single family residential use, the whole thing looks like in the future it certainly will go at least industrial.' He pointed out that there will be substantial residential traffic on Ammendale Road-an industrial road-and on a new proposed I-C road, so that the property involved in A-6813 at the corner of the Turnpike and Ammendale Road is 'very undesirable use for the R-55 category,' that is for 'residential category.' It was his opinion that the granting of the two applications to extend the I-2 zone to the Turnpike would not 'adversely affect any of the residential property to the east, or to the southeast.' In his opinion, it was most undesirable to have the most undesirable uses-those permitted in the I-2 zone-backed up to a residential zone. In his opinion no residences would ever be built facing the Turnpike and to attempt to use the 150 foot strip as a buffer was 'not the proper thing.' 'I think here we could use the road as the buffer, everything to the east would be residential and everything to the west would be industrial.' He further stated that 'you will find in any master plan in the whole metropolitan area of Washington that an arterial highway is used as a separation between zones.' He further testified that in his opinion no one 'could possibly build a residential home in that area at all.' In his opinion the 80 foot road-the Turnpike would provide a more reasonable buffer between the area between the commercial properties and the residential to the east and that 'this type of buffer is commonly used in many master plans.'

Commissioner Baggett, during Mr. Sheehan's direct examination, volunteered that the 'buffer zone' was not established so that residential homes could be built on it. He stated:

'This buffer zone was set up as a buffer zone to protect the people on the east side from any intrusion whatsoever from the industrial.'

Counsel for the applicants then asked Commissioner Baggett 'Q. Are you saying that it was set up as a buffer strip to protect the people on the other side of the road by using the residential as a buffer strip.'

To which question the Commissioner replied:

'By using that property. It was in a nonbuilding, commercial zone. That is what they were willing to give to get their zoning, they do it at every zoning, they give you a hundred feet, they give you a zoning to protect the other people's rights. These other people are entitled-if they were entitled to it ten or twelve years ago they are entitled to it now.'

Mr. Dieudonne testified that the closest modern house to the subject properties 'is about a half mile to the south, there are no houses to the north.' In his...