Surkovich v. Doub

• Decision Date: 14 May 1970
• Docket Number: No. 365,365
• Citation: 265 A.2d 447,258 Md. 263
• Parties: Albin M. SURKOVICH et al. v. Ragan M. DOUB et al.
• Court: Maryland Court of Appeals

Page 263

258 Md. 263

265 A.2d 447

Albin M. SURKOVICH et al. v. Ragan M. DOUB et al.

No. 365.

Court of Appeals of Maryland.

May 14, 1970.

John P. Zebelean, Jr., and C. Victor McFarland, Catonsville, for appellants.

Newton A. Williams and James D. Nolan, Towson (Nolan, Plumhoff & Williams, Towson, on the brief), for appellees.

Argued before HAMMOND, C. J., and BARNES, FINAN, SMITH and DIGGES, JJ.

SMITH, Judge.

This case might well be entitled 'Agneslane Re-visited', since the land sought to be rezoned is immediately adjacent to that involved in Agneslane, Inc. v. Lucas, 247 Md. 612, 233 A.2d 757 (1967), is a part of the same tract, one of the principal expert witnesses for the landowner in that case appeared for the landowner here, and that case has a direct bearing on our decision here. We shall reverse the action of the trial court which approved the rezoning.

One of the appellees, Ragan M. Doub (Doub), back in 1943, whether fortuitously or through foresight does not appear and is unimportant to our decision, made an extremely advantageous purchase of 333 acres of farmland at what is now the intersection of the Baltimore Beltway and Route I-70-N. The State Roads Commission by condemnation took 134 acres of that land for the interchanges constructed at that location, described as 'one of the largest in the entire country.'

The land here in question was zoned R-6 when the Western Area Land Use Map was adopted by the Baltimore County Council on November 15, 1962. The 61.2 acre tract here under consideration may be described as lying in the southeast quadrant of the Beltway and Interstate Route I-70-N. The Baltimore County Board of Appeals described it as 'shaped somewhat like the wedge of a pie', saying 'the entire west, northwest and north sides of the property (are) bounded by the Baltimore County Beltway, a ramp from the Beltway to I-70, and I-70, both six lane dual highways.' The east side of the property is bounded by Woodlawn Drive which extends from Johnnycake Road northerly under I-70-N through the Industrial Park to the north, and thence to Security Boulevard and the Beltway. Johnnycake Road is the boundary on the south.

Doub sought M.L. zoning for 56.5 acres of the tract and M.L.R. zoning on the 4.7 acres located on the northeast side of Johnnycake Road.

Woodlawn Drive was formerly known as Clarke Boulevard. The land under consideration in Agneslane, supra, was immediately across Woodlawn Drive or Clarke Boulevard from the subject property and was bounded by Route I-70-N on the north and the Johnnycake Junior High School on the south. That school lies immediately across Woodlawn Drive from the subject property. In a corner of this land is the new firehouse which this Court mentioned at p. 617, 233 A.2d at p. 759 of Agneslane, supra, as 'not amount(ing) to a change in the neighborhood.'

The property here under consideration is currently being used as farmland and is improved by three or four buildings among which is a farmhouse. Doub was a technical party to Agneslane, being the owner of the reversionary interest in the tract which was subject to a ten year ground lease in favor of the corporate lessee, Agneslane Inc., with the further power in that corporation to convert the whole or part of the tract into a 99 year ground rent status. Doub owns in fee simple the tract here under consideration.

As in Agneslane, the deputy zoning commissioner approved the reclassification. The petition for reclassification in this case was filed on November 14, 1967, just over a month after the decision of this Court on October 12, 1967, in Agneslane. The Baltimore County Board of Appeals approved reclassification of the 56.5 acre tract from R-6 to M-L and denied the reclassification of the 4.7 acre tract from R-6 to M.L.R., stating on the latter point:

'The Board feels, however, that the portion of the property for which the petitioner requested M.L.R.; that is, the 4.7 acres on the north side of Johnnycake Road opposite the Westview Park development, should be retained as R-6 so that houses can be built on the portion of the property to face the existing houses on the south side of Johnnycake Road, which should reduce to a minimum any possible impact on the existing residential development.'

The M.L.R. classification apparently was desired to provide some buffer between the major portion of the tract and the R-6 development known as 'Westview Park' which is across Johnnycake Road to the southwest. Doub and the protesting property owners each appealed the action of the Board of Appeals to the Circuit Court for Baltimore County. The two appeals were consolidated and considered as one by the circuit court, which affirmed the action of the Board of Appeals. Both sides appeal that decision.

In presenting his case to the Board of Appeals Doub proceeded both on the theory of error in the original zoning and change in the character of the neighborhood sufficient to justify his request for reclassfication. It does not clearly appear upon which ground the board and the court rested their respective opinions.

In Agneslane, supra, the requested rezoning was from R-6 (one or two-family residential use) to R-A (residential use apartment). That case was heard before the same individuals constituting the Board of Appeals who sat in this case. A divided board there rejected the claim of error in the map as well as the allegation of change in the character of the neighborhood. In Agneslane the contentions relative to error in the map centered around the claim that the County Council underestimated the number of people who would be occupying the area embraced within the 'Western Planning Area' of the county and, therefore, had provided insufficient R-A zoned acreage to house the unexpected influx. It was claimed that the change in the character of the neighborhood consisted in the actual construction (as opposed to the planning of) Clarke Boulevard or Woodlawn Drive and Route I-70-N, the expansion of the Social Security complex which had purchased 53 additional acres, the rapid growth of the Meadows Industrial Park, and the construction of the new firehouse. Mr. Bernard Willemain was one of the principal witnesses in that case.

The principal witness for Doub in this case was the same Mr. Willemain, 'a consultant in the fields of city planning, site planning, and zoning', who frequently appears in cases of this kind. He said the present R-6 classification is erroneous. This time he based his opinion on the fact that it 'is one of the few vacant tracts of land left in this part of Baltimore County' and 'is ideally suited for more intensive use, in terms of public facilities, such as sewer and water, roads that will carry heavy traffic, good topography, a good relationship to other community facilities, that would serve the tract, affording retail services to the users of the tract, and in this particular case, a very close relationship to the well established and mostly improved Meadows industrial tract, and the Social Security installation.' He said that the property should be 'devoted to its highest and best use' and he was of the opinion 'that the light industrial classification, as requested by Mr. Doub, represents the highest and best use for the property.' He also testified to change in the immediate neighborhood which he thought justified the requested reclassification. As evidence of this change he pointed to the construction of I-70-N and Woodlawn Drive; the widening of the Beltway to six lanes and lighting; the construction of the firehouse; and the expansion of the Social Security complex north of I-70-N in the Meadows Industrial Park. To buttress his opinion, both as to error and as to change, he pointed to three zoning reclassifications to M.L.R. from various residential classifications embracing approximately 200 acres 'less than a mile away' which took place between September, 1965, and November, 1966. They were all north of subject property and on the opposite side of the Beltway.

Mr. Doub described the buildings erected to the north on the other side of Route I-70-N and described the various out-conveyances from his tract including the conveyance for the firehouse in a corner of this land and the Johnycake Junior High School. He saw traffic on the nearby roads, the dust 'from the oxidized cement', noise and interchange lights as the principal evidence of change. He made no mention of error in the original zoning.

Mr. Frederick P. Klaus was qualified as an expert in real estate, being a realtor and real estate appraiser. He said the County Council did not provide sufficient industrial zoning in the Western Area 2B map saying:

'I base it on the need, that was not anticipated at the time of the adoption of the land use map. The industrial land that they provided for, and those that already can be developed with utilities, has practically been all developed, with the exception perhaps of a few acres in the Meadows Industrial Park.

'There were other lands zoned, on the other side of the Beltway, where there are utility problems.

There are other lands zoned farther west, that have no access (to any of the rapid roads, the Beltway or 70-N) at this time and no utilities.'

He regarded the three cases cited by Mr. Willemain as evidence of significant change in the neighborhood as well as proof that 'the County Council did not provide enough land for future industrial growth'. He said the R-6 zoning was erroneous because of the noise and the lights from the interchange and did not believe an R-6 developer could readily sell his houses. He was of the opinion that the property should have been zoned as was the property to the north of I-70-N stating as his reason 'the fact that the Beltway was in existence at the adoption of the map, and also the fact it was known that 70-N would be constructed at this location, and it was known at the time that Woodlawn Drive would be extended, and the into the...