Temmink v. Board of Zoning Appeals of Baltimore County

• Decision Date: 18 November 1954
• Docket Number: No. 8,8
• Citation: 205 Md. 489,109 A.2d 85
• Parties: William M. TEMMINK, William E. Steigleman and Eugene L. Pessagno, Jr., v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY et al.
• Court: Maryland Court of Appeals

Page 489

205 Md. 489

109 A.2d 85

William M. TEMMINK, William E. Steigleman and Eugene L. Pessagno, Jr., v. BOARD OF ZONING APPEALS OF BALTIMORE COUNTY et al.

No. 8.

Court of Appeals of Maryland.

Nov. 18, 1954.

W. Lee Harrison, Towson (Michael Paul Smith and Douglas G. Bottom, Towson, on the brief), for appellants.

John J. Brennan, Towson (Charles W. Held, Jr., Towson, and John N. Maguire, Essex, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This is an appeal from an order of the Circuit Court for Baltimore County affirming an order of the Board of Zoning Appeals of Baltimore County reclassifying a parcel of three acres of land at Catonsville in the residential development known as Colonial Gardens from an 'A' Residence Zone to an 'E' Commercial Zone.

The Baltimore County Zoning Enabling Act, enacted by the Maryland Legislature in 1941, authorized the County Commissioners of Baltimore County to adopt a comprehensive plan of zoning regulations and restrictions affecting the erection, alteration and use of buildings and land in Baltimore County for trade, residence, industry and other purposes. Laws 1941, ch. 247. In 1943 the Legislature amended the Act by authorizing the County Commissioners to make special exceptions to the provisions of the Zoning Regulations and providing for special permits for certain uses under the Zoning Regulations. Laws 1943, ch. 877.

On January 2, 1945, the County Commissioners, in pursuance of the authority delegated to them by the Legislature, adopted the Zoning Regulations dividing the county into seven zones, namely: 'A' (Cottage) Residence, 'B' (Semi-detached) Residence, 'C' (Apartment) Residence, 'D' (Group) Residence, 'E' Commercial, 'F' Light Industrial, and 'G' Heavy Industrial. Oursler v. Board of Zoning Appeals of Baltimore County, 204 Md. 397, 400, 104 A.2d 568.

In 1945 the Legislature authorized the County Commissioners to vest in the Zoning Commissioner the power to amend, supplement or change from time to time the boundaries of the zoning districts, divisions or zones. Laws 1945, ch. 502, Baltimore County Code, 1948 Ed., sec. 366. The County Commissioners, in accordance with that authority, vested in the Zoning Commissioner the power to reclassify tracts of land.

On May 24, 1952, Colonial Gardens, Inc., owner of a tract of 65 acres of land fronting on Edmondson Avenue at Rolling Road and Old Frederick Road, petitioned the Zoning Commissioner to change the classification of the parcel in question from an 'A' Residence Zone to an 'E' Commercial Zone in order to provide for a shopping center. On July 21, 1952, the Zoning Commissioner granted the application for reclassification subject to the following restrictions: (1) that no signs other than the signs on the stores be displayed in the area; (2) that no neon signs or flood lights be employed in the area; and (3) that no amplifying system of any kind be used.

Owners of nearby properties, who protested against the shopping center, appealed from the order to the Board of Zoning Appeals. On February 10, 1953, the Board affirmed the decision of the Zoning Commissioner, holding that there is a need for a shopping center in Colonial Gardens, and that the proposed location is an appropriate one.

On March 2, 1953, William M. Temmink, William E. Steigleman and Dr. Eugene L. Pessagno, Jr., filed a petition for a writ of certiorari in the Circuit Court for Baltimore County to review the action of the Board. On January 19, 1954, the Circuit Court affirmed the decision of the Board. From the order of the Court the protestants appealed here.

Neither the Zoning Enabling Act of 1941 nor the amendatory Act of 1943 contained any authorization for appeal from a decision of the Circuit Court to the Maryland Court of Appeals. But in 1953 the Legislature passed an Act providing that an appeal may be taken to the Court of Appeals from any decision of the Circuit Court for Baltimore County reviewing a decision of the Board of Zoning Appeals. This Act expressly provides that the Court of Appeals in such cases shall not award costs of the appeal against any party to the appeal except the appellant. Laws 1953, ch. 634.

It is an established rule that where an application is made for reclassification of a tract of land from one zone to another, there is a presumption that the zones established by the original zoning ordinance were well planned and arranged and were intended to be more or less permanent, subject to change only when there are genuine changes in conditions. Thus, before a zoning board rezones a property, there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood had changed to such an extent that reclassification ought properly to be made. Offutt v. Board of Zoning Appeals of Baltimore County, 204 Md. 551, 105 A.2d 219. Where there has been no mistake in the original zoning of a parcel of land as residential, and the character of the neighborhood has not changed to such an extent as to justify rezoning the land as commercial, and the reasons given by the zoning board for the rezoning are unsupported by the facts, the rezoning order is void. American Oil Co. v. Miller, 204 Md. 32, 102 A.2d 727.

In the case before us the applicant for reclassification makes no claim that the County Commissioners made a mistake in placing the three-acre parcel in a residential zone in 1945. The applicant contends that...