Turner v. Hammond

• Decision Date: 15 October 1973
• Docket Number: No. 39,39
• Citation: 270 Md. 41,310 A.2d 543
• Parties: Kenneth TURNER, etc. t/a Salisbury Venture v. Gorman E. HAMMOND et al.
• Court: Maryland Court of Appeals

Page 41

270 Md. 41

310 A.2d 543

Kenneth TURNER, etc. t/a Salisbury Venture v. Gorman E. HAMMOND et al.

No. 39.

Court of Appeals of Maryland.

Oct. 15, 1973.

Hamilton P. Fox, Jr., Salisbury (Fulton P. Jeffers and Hearne, Fox & Bailey, Salisbury, on the brief), for appellant.

Victor H. Laws, Salisbury (Long, Laws, Hughes & Bahen, Salisbury, on the brief), for appellees.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

McWILLIAMS, Judge.

Captain John Smith sailed up the Wicomico River in 1608. When he came to what is now Salisbury he found a small community of Nanticoke Indians. They drifted away to the north in the face of later incursions of the white settlers. A century or so later their displacement seems to have been accomplished. In the summer of 1732 the Assembly passed an act 'for the erecting a Town at the Head of Wiccomoco River . . . in a Fork thereof' and empowering five commissioners to buy, for that purpose, a tract of 15 acres lying 'most convenient to the Water.' Our present concern is another 15 acre tract (the property) about a mile farther north but 'convenient' to the very same 'Water.' ¹ Differences of opinion about the use of the property have engendered a commotion the Nanticokes would likely have thought passing strange if, indeed, it could have been within their powers of comprehension.

We have filed with this opinion a part of the official map of Salisbury, reference to which is essential if the facts and circumstances of this case are to be understood. North has been indicated; the scale is 1 =1000 ; the hachured area between Union and Hickory Avenues represents the property.

It will be noticed that the corporate boundary line of the City of Salisbury, the easterly shore of Johnson's Pond, and the southwestern boundary of the property are coincident. The area enclosed by Union Avenue, Emerson Avenue, Handy Street and the shore line is for the most part unimproved. In the area enclosed by North Division Street, Hickory Avenue, the property, and Union Avenue are single family dwellings, some as old as 60 years. St. Peter's Episcopal Church owns both the property and the abutting Parsons Cemetery.

It is conceded that the zoning classification of the property is Residential B. ² Apartment houses are permitted in residential districts provided a special use exception is granted by the Board of Zoning Appeals (Board). The criteria to be applied by the Board are set forth in Section 54:

'Buildings and uses, as special exceptions, limited as to location, and especially in the locations described below in this section, are permitted by the terms of this ordinance, if the board of zoning appeals finds, that in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property permitted by this ordinance and provided such exception is approved by the board:

12. Apartment houses in residential districts as follows:

a. A group of apartment houses

b. A housing project of a group of apartment houses to be constructed as a unit according to a comprehensive well planned design, with adequate provisions for access of light and air to the apartments and to neighboring properties provided there is substantial compliance with the population density regulations of the district, and further provided that the aggregate area of the open yard spaces is substantially equivlent to the minimum aggregate area required for these buildings in this district and on the further condition that the buildings shall collectively and individually comply with front and rear yard regulations and that there shall be not less than thirty feet between buildings, and the buildings not less than thirty feet from adjacent property lines.' (Emphasis added.)

The appellant (Turner) proposes to build on the property 197 garden apartment units in 12 groups of buildings, 67 in all, each two and one-half stories high. The plans call for 49 single bedroom units, 100 two bedroom units and 48 three bedroom units. On a parcel 120 feet by 450 feet along the southeastern boundary beginning at Union Avenue and extending 100 feet beyond Brooklyn Avenue there will be six single family dwellings. This, it is said, will provide a buffer zone between the apartment project and the existing dwellings. To this end Turner obtained from the church an option to purchase the property; subsequently he applied for the special use exception required by the ordinance. The Board, after a hearing, adopted the resolution set forth below, verbatim. It is at once obvious that the Board used a prepared form.

'Upon a motion by Verdin Cantrell seconded by Walter Phillips and duly carried, the Board denied the request for a Special Use Exception in the within case and as its reason for so doing states as follows:

'We find from a preponderance of the evidence that the proposed use of this property for an apartment project consisting of 197 units

1. will substantially affect adversely the uses of adjacent and neighboring property;

2. will substantially affect adversely persons residing, studying, working, or otherwise occupying lands or buildings adjoining or in the vicinity of the project area;

3. will not be compatible with the character and use of buildings adjoining or in the vicinity of the project;

4. will affect adversely the safe and efficient movement of traffic in and through the area by the use of existing street patterns;

5. has not been so designed to minimize adverse affects on adjacent properties and the surrounding neighborhood;

6. that development in the neighborhood since the zone plan and ordinance were adopted has not been such as to promote a change toward the proposed type of development.'

'Thus by virtue of the requirements of Section 53 and 54 of the Ordinance No. 789 of the City of Salisbury, Maryland, the above findings require that the Special Use Exception be denied.

/s/ Michael J. Hynes

/s/ William H. Bull

/s/ Verdin S. Cantrell

/s/ W. L. Phillips'

/s/ Oris W. Horsey Sr.

On 7 February 1973 the Circuit Court for Wicomico County, Pollitt, J., affirmed the decision of the Board. From that order Turner has appealed. We shall reverse.

The hearing before the Board on 9 March 1972 appears to have been attended almost exclusively by opponents. Their reactions, whether favorable or unfavorable, were both vehement and vocal. There was received in evidence, before the testimony, a letter from the Wicomico County Fire Marshal, endorsed by the Deputy Fire Chief of the Salisbury Fire Department, stating that their joint inspection of the property enabled them to report that

'1. The area in question would have adequate access to the site and within the site for fire fighting purposes.

2. There will be installed adequate water mains and fire hydrants for fire fighting equipment.

3. The proposed type of construction would lend little if any degree of hazard to other apartments or properties.'

Turner, the first witness, described the project in general terms. Brick veneer would be used in the construction of the apartment buildings and each of the six single family dwellings would cost from $22,000 to $25,000. The apartment buildings, he said, would cover about 11.5 percent of the ground, the project would be conventionally financed, insured by FHA, and there would be no rent subsidies of any kind.

John M. Hilliard, an architect, testified he prepared the plans submitted to the Board. He said there were 'close to 400' parking spaces, although the plans called for only 264. Cross-examination developed some uncertainty in respect of statistics but we think, in the circumstances, it had little, if any, significance.

What follows is an excerpt from the record:

'Mr. Creamer (Director of the Planning Office): May we interrupt long enough to pass a pad around for these people 'Mr. Hynes (Chairman of the Board): Oh, yeah. We are going to pass a pad around for all those people that are present and we'd like you to put next to your name whether you are for or against the variance this evening. (Emphasis added.)

'Mr. Creamer: People's address.

'Mr. Hynes: On yes. Put your address down too. That's very important. We'll disregard a name that hasn't got a location next to it. Have you got a pencil and pad there. (Emphasis added.)

'Mr. Creamer: Merrill (Merrill J. Burhans, Jr., Supervising Planner) has it.

'Mr. Hynes: Merrill, why don't you start up in the box there. Want to call your next witness, Mr. Fox.'

In the transcript of the record there are six pages of signatures, a total of 204 according to a note on page one, all registering opposition. The addresses given suggest the signers reside anywhere from several hundred yards to a mile or two from the property. Indeed one has trouble understanding how some of the signers can be affected one way or another by the project.

Carter Bertizon, a builder, testified that he expected to build the structures, that the cost would be about $2,500,000, that he would use local labor and that construction would be finished in two years.

Victor Stephens, a Salisbury realtor, was the next witness. He recited in considerable detail his investigation of the effect of apartment projects, similar to the proposed project, on the value of existing properties in the vicinity of such projects. He gave it as his 'definite opinion that in all honesty a project of this sort should not be expected in any way to lower the value or harm the value of nearby residential property.'

Harold Fulton has been Assistant Superintendent of the Wicomico County Schools since 1959. He said all of the elementary schools 'operate at near capacity.' If there is an increase in the number of children 'we have to make some adjustments to take care of them'; it is the responsibility of the school system, he added, 'in some way, to make provisions for the children.' Questioned about the traffic problem he replied, 'if there is a...