Trustees of McDonogh Ed. Fund and Institute v. Baltimore County

• Decision Date: 14 March 1960
• Docket Number: No. 106,106
• Citation: 158 A.2d 637,221 Md. 550
• Parties: TRUSTEES OF McDONOGH EDUCATIONAL FUND AND INSTITUTE, etc., et al. v. BALTIMORE COUNTY, Maryland, et al.
• Court: Maryland Court of Appeals

Page 550

221 Md. 550

158 A.2d 637

TRUSTEES OF McDONOGH EDUCATIONAL FUND AND INSTITUTE, etc., et al. v. BALTIMORE COUNTY, Maryland, et al.

No. 106.

Court of Appeals of Maryland.

March 14, 1960.

John Grason Turnbull, Towson, J. Nicholas Shriver, Jr., and John W Cable, III, Baltimore (Turnbull & Brewster, Towson, Cross & Shriver, Cable & McDaniel, Venable, Baetjer & Howard and Robert M. Thomas, Baltimore, on the brief), for appellants.

Walter R. Haile, Deputy County Sol., Towson (Johnson Bowie, County Sol., Towson, on the brief), for Baltimore County.

W. Lee Harrison, Towson (Richard C. Murray, Towson, on the brief), for McDonogh Construction Co., appellee.

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

PRESCOTT, Justice.

The plaintiffs below appeal from a decree that dismissed their bill of complaint, which alleged that the action of the appellee, Baltimore County, Maryland, [at the time of the action complained of the former County Commissioners constituted the County Council until the newly elected members of the County Council took office, Section 1106 of the Charter of Baltimore County] in classifying property owned by the other appellee, McDonogh Construction Company (Construction Company), under a new comprehensive zoning map for the Third Election District of Baltimore County, was arbitrary and illegal; and sought to have said zoning classification declared invalid and to enjoin the use of the property for the purposes permitted by a Business Major or an R-20 Residential classification.

Although the issues are few and their scope rather narrow, the record extract is quite voluminous, consisting of some 1,067 pages of testimony. It will, therefore, be necessary to summarize the same considerably in order to keep this opinion within reasonable bounds.

Since 1950, the Construction Company has been the owner of an 83 acre tract of land, lying at the northwest corner formed by the intersection of McDonogh and Reisterstown Roads in the said Third Election District. With the adoption of the first zoning maps for Baltimore County on January 2, 1945, a portion of the property in question (approximately 150 feet on Reisterstown Road) was zoned 'E' commercial the only commercial classification which existed under those regulations, and the balance was zoned 'A' Cottage Residential. The latter residential zone was the only zone under the original zoning regulations which was limited to cottage or detached house construction, and in that zone no lot could be less than 5,000 square feet in area.

On March 30, 1955, the County Commissioners of Baltimore County repealed the regulations which had been in effect since January 2, 1945, and enacted a completely new set of regulations which established new zoning classifications and further provided that new comprehensive zoning maps would be adopted for each of the Election Districts of Baltimore County. The new regulations also provided that during the interim, the then existing zoning maps would continue to be the official zoning maps for the county until such time as the new maps were adopted. In addition, the new regulations provided that all land which was shown as 'E' commercial on the then existing maps would automatically go into the 'BL,' Business, Local zone, which was one of three commercial zones provided for by the new regulations, and which was the most restricted of the three commercial zones so adopted. The new regulations further provided that all land which was zoned on existing zoning maps as 'A' residential would automatically become R-6 (residential lots of not less than 6,000 square feet area), pending the adoption of a new comprehensive zoning map for the particular district in which the land was located.

The four corners of the intersection of Reisterstown and McDonogh Roads (comprising about 4 1/2 acres according to Respondents' Exhibit I) had been zoned 'E' commercial (Craddock's Lane being more or less of an extension of McDonogh Road running in an easterly direction from the Reisterstown Road), when the original zoning map for the area was adopted in 1945. However, a restaurant and cocktail lounge known as the Ten Mile House, located on the west side of Reisterstown Road and completely surrounded by the subject property, remained as a nonconforming use, as it had been in existence for many years prior to the adoption of zoning in Baltimore County. The same situation existed with respect to an old stone building located on the east side of Reisterstown Road, directly opposite the Ten Mile House which had been used over the years as an antique shop. Of the four corners of the intersection, the northwest corner (on the subject property) was the only one which had been used commercially, being occupied by a roadside fruit and produce market.

The subject property lies roughly one-half of the distance between Naylor's Lane in Pikesville and Painter's Mill Road--the boundary between the Third and Fourth Election districts--which covers about three and one-half miles. On the west side of Reisterstown Road between these points, there is 3,150 feet of R-10 zoning (10,000 sq. ft. per residence, with exceptions); 800 feet of R-20 zoning (20,000 sq. ft. per residence, with exceptions); 3,400 feet of R-40 zoning (40,000 sq. ft. per residence), 800 feet of which is the Woodholme Golf Course; 2,500 feet of B-L zoning (Business, Local); 2,900 feet of B-M zoning (Business, Major), which is the subject property; and 4,300 feet of M-R zoning (Manufacturing, Restricted). Thus, it is seen that about 57% of the frontage on the west side is zoned for business and manufacturing purposes, and some 23% is zoned for the same or higher density than permitted in R-20 residential classification. On the east side of Reisterstown Road, about 60% of the frontage is zoned for business or residential uses of a higher density than that permitted in R-40 classification.

In the ten years between 1930 and 1940, the population of the Third District had remained static, showing an increase of only 741 persons. In the ten year span between 1940 and 1950, the population increase of the entire district was only 3,922 persons. However, in the seven year period between 1950 and 1957 the population of this district more than doubled, showing an increase of 11,671 persons or at the rate of 105.4%, which was the second highest percentage of increase for any district in Baltimore County for that period. The highest percentage of increase was in the Second District, 117.4%, the boundary of this district being 1/2 mile from the subject property and this district being part of the primary trade area of the proposed shopping center. The years between 1945 and January 1957 saw eleven tracts of land reclassified to manufacturing uses, four tracts reclassified for apartments, one tract reclassified for group homes, special exceptions granted on 19 tracts and 22 tracts reclassified for commercial uses--all by reclassifications on the Third District Map.

On April 18, 1956, the Baltimore County Planning Board delivered a Master Plan or Land Use Plan to the Zoning Commissioner for his use in preparing and recommending to the Board of County Commissioners a Comprehensive Zoning Map for the Third Election District. This Master Plan or Land Use Plan contained information as to existing and planned parks, existing and planned highways and roads, existing and planned schools, and recommended zoning or land uses for the area.

At the time the Master Plan was transmitted to the Zoning Commissioner, a large acetate overlay, which covered the entire map or plan, had contained on the area covering the Suburban Club property (located on the east side of Reisterstown Road, approximately two miles south of the subject property in Pikesville) a symbol which indicated that the Suburban Club property was 'to be reserved for a major business zone.' On May 8, 1956, prior to the hearing before the Zoning Commissioner on July 16, 1956, the Office of Planning transmitted a recommendation that approximately fifty acres of the Suburban Club site be added to the zoning map as Business Local for use as a major or regional shopping center. This was accomplished by means of a letter of transmittal and a small acetate overlay, which delineated the boundaries of the business zone on the Suburban Club property.

After receipt of the zoning recommendations of the Planning Board, which recommended that the subject property be zoned R-40, the Zoning Commissioner conducted an investigation and duly advertised a public hearing on the recommended map for July 16, 1956.

At the hearing of July 16, 1956, the Zoning Commissioner announced that he would receive written petitions setting forth the proposals or objections of anyone interested in any particular property shown on the Third District Map within ten days following the hearing. Prior to this time, it was proposed that the subject property be zoned R-40 in its entirety, completely eliminating the pre-existing commercially zoned and used property at the corner. There was testimony to the effect that R-40 zone was considered to be a reservoir zone out of which might come various uses of properties. On July 16, 1956, the Construction Company submitted a petition to the Zoning Commissioner requesting that its property be zoned for a major shopping center and the construction of cottages on R-10 (10,000 square feet) lots.

After the Zoning Commissioner's hearing of July 16, 1956, and prior to the submission of his final report to the County Council on November 21, 1956, the Zoning Commissioner learned that the membership of the Suburban Club, most of whom were nearby residents opposed to the zoning, refused to agree to a sale of the Club property for use as a shopping center, even if so zoned. When the Zoning Commissioner learned that this property was unavailable as a possible future business site, he testified that he made a survey of the...