Tankersley v. County Bd. of Appeals

• Decision Date: 16 January 1963
• Docket Number: No. 130,130
• Citation: 187 A.2d 302,230 Md. 379
• Parties: Ruth McC. TANKERSLEY et vir v. COUNTY BOARD OF APPEALS and Montgomery County Council.
• Court: Maryland Court of Appeals

Page 379

230 Md. 379

187 A.2d 302

Ruth McC. TANKERSLEY et vir v. COUNTY BOARD OF APPEALS and Montgomery County Council.

No. 130.

Court of Appeals of Maryland.

Jan. 16, 1963.

R. Edwin Brown and J. Alex Johnson, Jr., Rockville, for appellants.

Douglas H. Moore, Jr., Deputy County Atty., and Thomas J. Wacker, Jr., Asst. County Atty. (Alfred H. Carter, County Atty. for Montgomery County, Rockville, on the brief), for appellees.

Before HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.

HENDERSON, Judge.

In this zoning case from Montgomery County, the appellants sought to obtain the right to construct and operate, upon a portion of their property, a stone quarry and crushing plant. The appellants own a large tract of land in what is still a rural section of the County, near the village of Boyds. In 1958, they petitioned the County Council for a reclassification of 200 acres of their land from RR (Rural Residential) to I-2 (Heavy Industrial). The application was denied, and a second application for the rezoning of 60 acres was withdrawn. Another application for reclassification of 100 acres was filed in 1961, and an application for a special exception was also filed with the Board of Appeals. Both applications were denied, and on appeal to the circuit court, the cases were consolidated. From an affirmance in each case, the appeal comes here.

The extensive testimony makes it clear that there is a valuable deposit of diabase stone, useful as a road material, underlying the appellants' property to a depth of more than 200 feet, and covering an area of some three and one-half square miles. Roads in that part of the County are narrow and largely unimproved. There was testimony that they would be quite inadequate to accommodate the volume of truck transportation in contemplation. There was also testimony that the operation of a quarry and crushing plant would cause noise, dirt, danger to school children and damage to water resources in what is now an almost solidly agricultural and residential community. The appellants sought to minimize these effects by offering to construct a new private road over their property to by-pass the school, but it was pointed out that this would increase the traffic at the point of exit and at a railroad underpass. They also sought to avoid the effects of blasting, noise and dust, by limiting the proposed reclassification or special exception to acreage entirely surrounded by a buffer strip of their own land.

The appellants strongly contend that the denial of their petition amounts to a taking of their property under the rule laid down in such cases as Frankel v. City of Baltimore, 223 Md. 97, 162 A.2d 447 and cases there cited. Cf. Reiskin v. County Council for Montgomery County, 229 Md. 142, 182 A.2d 34. We think, however, that the appellants fell short of establishing that the denial of their petition would deprive them of any reasonable use of their property. We think the case falls in the pattern of Walker v. Board of County Com'rs of Talbot County, 208 Md. 72, 95, 116 A.2d 393 and County Council for Montgomery County v. Gendleman, 227 Md. 491, 498, 177 A.2d 687. The appellants rely upon the case of Consolidated Rock Products Co. v. City of Los Angeles, Cal.App., 15 Cal.Rptr. 775, as closely analogous on its facts. As the appellees point out, the case was reversed on appeal, 57 Cal.2d 515, 20 Cal.Rptr. 638, 370 P.2d 342; app. dism. 371 U.S. 36, 83 S.Ct. 145, 9 L.Ed.2d 112, for want of a substantial Federal question. Cf. Howard County Com'rs v. Merryman, 222 Md. 314, 159 A.2d 854. The fact that a natural resource is involved is not controlling. The question is whether the prohibition can be sustained under the police power.

The Council and the Board found that the most suitable future development of the whole region was for home sites, and that this development would be frustrated if industrial uses of the type in question were permitted. The appellants produced testimony that the rock underlay would make...