White v. Spring

• Decision Date: 01 September 1995
• Docket Number: No. 1297,1297
• Citation: 675 A.2d 1023,109 Md.App. 692
• Parties: George W. WHITE, Jr. et al. v. Rodney V.R. SPRING et al. ,
• Court: Court of Special Appeals of Maryland

Page 692

109 Md.App. 692

675 A.2d 1023

George W. WHITE, Jr. et al. v. Rodney V.R. SPRING et al.

No. 1297, Sept. Term, 1995.

Court of Special Appeals of Maryland.

May 6, 1996.

William D. Berwick (White, Mindel, Clarke & Foard, on the brief), Towson, for appellants.

Warren K. Rich (Douglas G. Moorhead, Rich and Henderson, P.C., Annapolis, and Michael L. Pullen, Easton, on the brief), for appellees.

Argued before MOYLAN, FISCHER and CATHELL, JJ.

CATHELL, Judge.

George W. White Jr. et alia, appellants, appeal from a judgment of the Circuit Court for Talbot County (Horne, J., presiding), rendered in favor of Rodney V.R. Spring et alia, appellees, affirming the rezoning of certain property owned by appellees. Appellants present one issue on appeal:

Whether the trial court erred in affirming the decision of the County Council of Talbot County, Maryland by erroneously finding that the issue before the County Council had been fairly debatable[.]

Appellants, however, limit our review of that question, when they describe their argument as:

The trial court erred in affirming the decision of the County Council of Talbot County, Maryland, as there was insufficient evidence of a mistake in the 1989 comprehensive critical area rezoning of the Spring property to make the matter fairly debatable.

From our reading of Judge Horne's opinion, it is apparent that the issue and argument presented to him was similarly limited.

Thus, the issue is whether a mistake was made when the property was rezoned in 1989. Appellants do not argue that, even if a mistake did occur in 1989, the most recent rezoning was, nevertheless, improper. We shall discuss that point further, following resolution of the argument appellants do present.

General Discussion

Absent a regulation so prohibitive as to constitute an unconstitutional confiscation or taking of property, original zoning (including master planning) and comprehensive rezoning are limited only by the general boundaries of the police power and appropriate procedural and due process considerations. A legislative body establishes zoning policy through its adoption of master plans, comprehensive zoning, and comprehensive rezonings. So long as (1) the appropriate procedural criteria are met, (2) the due process limitations have been duly addressed, (3) the policy is designed to achieve a valid public purpose, and (4) the police power is not otherwise exceeded, comprehensive zoning and comprehensive rezoning--i.e., the conclusions of legislative bodies--cannot be a mistake, except where it is proven by substantial evidence that the information relied upon by the legislative entity was wrong, i.e., a mistake. To hold otherwise, as the majority opinion in People's Counsel v. Beachwood I Ltd. Partnership, 107 Md.App. 627, 670 A.2d 484 (1995) (Beachwood) opined, would be to permit the administrative agencies and the courts to "second guess" the legislative body by substituting their concepts of the appropriate policy to be adopted. Id. at 638, 670 A.2d 484. The creation of zoning policy is a matter reserved for the legislative body of government; it is neither normally an administrative nor a judicial function.

We next note that individual petitions for rezoning (as opposed to comprehensive rezoning), ¹ must generally be supported by substantial evidence showing either that a change in the neighborhood has occurred since the last comprehensive rezoning or that, when the prior comprehensive rezoning occurred, the legislative entity relied upon mistaken or erroneous evidence. This principle has come to be termed the change/mistake rule. ² If a petitioner can establish a zoning mistake, a zoning change is permitted, but, even then, it is not required. In the case at bar, we are concerned only with the mistake prong of the change/mistake rezoning rule. We leave the "change" aspect to another day.

Zoning Mistake

In Beachwood, Judge Moylan, for the majority, described what a zoning mistake is not. Here, we describe what, in terms of traditional zoning and rezoning, a zoning mistake is. From these two cases, the law of zoning mistake, as applicable to traditional rezoning, may be completely understood.

In Beachwood, Judge Moylan noted that there had been no allegation that the County Council had relied upon evidence that was erroneous or a mistake; instead, it was alleged that it had relied upon correct factual evidence to arrive at an erroneous or mistaken conclusion. It was also noted that, before the Board of Appeals, Beachwood had alleged that the conclusion reached by the Council was "out of character with the zoning of the surrounding area." 107 Md.App. at 636, 670 A.2d 484. Judge Moylan further stated that the Board's majority opinion had proffered that the County's conclusions as to rezoning resulted in a classification that "was erroneously zoned by the County Council." Id. at 635, 670 A.2d 484. Citing and quoting from Boyce v. Sembly, 25 Md.App. 43, 50-51, 334 A.2d 137 (1975), we stated that

error or mistake is established when there is probative evidence to show that the ... premises relied upon by the Council ... were invalid. Error can be established by showing that ... the Council failed to take into account then existing facts ... so that the Council's action was premised ... on a misapprehension.

Beachwood, 107 Md.App. at 645, 670 A.2d 484 (emphasis omitted). Judge Moylan then elucidated the operative concern, in respect to the consideration of a zoning mistake:

The finding of a mistake or error is not so much concerned with the logical validity or merit of ultimate conclusion-drawing as it is with the adequacy and accuracy of the factual premises that underlie the conclusion-drawing. A conclusion based on a factual predicate that is incomplete or inaccurate may be deemed, in zoning law, a mistake or error; an allegedly aberrant conclusion based on full and accurate information, by contrast, is simply a case of bad judgment, which is immunized from second-guessing.

Id. Upon reflection, this simplified statement accurately and fully states the law, the concurrence in Beachwood notwithstanding. The standard encompassed within the statement serves to guide a review of traditional zoning mistake issues fully, presuming, of course, that proper procedure is followed and there are no police power or taking issues present.

Before we apply that concept to the case sub judice, we note the general standard when reviewing the decisions of administrative agencies, including zoning entities.

Standard of Review

The Court of Appeals, in a case involving a denial of a use permit, stated, "It is a clearly established rule in the law of zoning that a court may not substitute its judgment for that of the Zoning Board." Dorsey Enters., Inc. v. Shpak, 219 Md. 16, 23, 147 A.2d 853 (1959); see also Largo Civic Ass'n v. Prince George's County, 21 Md.App. 76, 88, 318 A.2d 834 (1974). We, in discussing the law relative to rezoning, have stated that the courts may not substitute their judgment for that of the legislative agency, if the issue is rendered fairly debatable. Anne Arundel County v. Maryland Nat'l Bank, 32 Md.App. 437, 440, 361 A.2d 134 (1976); see Tennison v. Shomette, 38 Md.App. 1, 5, 379 A.2d 187 (1977), cert. denied, 282 Md. 739 (1978); Fitzgerald v. Montgomery County, 37 Md.App. 148, 153, 376 A.2d 1125 ("It is fundamental that court review of actions taken by the zoning authority is narrow and restricted in scope."), cert. denied, 281 Md. 737 (1977), and cert. denied, 439 U.S. 854, 99 S.Ct. 164, 58 L.Ed.2d 160 (1978). The basic reason for the fairly debatable standard is that zoning matters are, first of all, legislative functions and, absent arbitrary and capricious actions, are presumptively correct, if based upon substantial evidence, even if substantial evidence to the contrary exists. The zoning agency, in this case, not the court, is considered to be the expert in the assessment of the evidence. Prince George's County v. Meininger, 264 Md. 148, 154, 285 A.2d 649 (1972); Brouillett v. Eudowood Shopping Plaza, Inc., 249 Md. 606, 608, 241 A.2d 404 (1968); B.P. Oil, Inc. v. County Bd. of Appeals, 42 Md.App. 576, 577, 401 A.2d 1054 (1979); see Maryland Nat'l Bank, 32 Md.App. at 440, 361 A.2d 134 ("[W]hen there is sufficient evidence before the rezoning body to render the issue fairly debatable, the courts may not substitute their judgment for that of the legislative agency."); see also Hardesty v. Dunphy, 259 Md. 718, 725, 271 A.2d 152 (1970) (holding that, when a mistake has been found, that finding "merely permits the legislative body to grant the requested rezoning but does not require it to do so"); Dill v. Jobar Corp., 242 Md. 16, 22, 217 A.2d 564 (1966) (holding that, even if a mistake is proven, a rezoning is even then only compelled (as opposed to permitted) if existing zoning is confiscatory, i.e., if an unconstitutional taking results).

The Instant Case

Unlike Beachwood, where an administrative agency, the Board, rezoned the subject property, in the case sub judice, the property was rezoned by the County Council of Talbot County, the same body that had originally reclassified the property in 1989 as a part of comprehensive rezoning, relying upon the evidence that had been presented to it at that time. Moreover, as we shall indicate, there was, in this most recent rezoning (the subject of the instant appeal), substantial evidence before the rezoning entity, the Council, that the information furnished to it during the prior comprehensive rezoning had been erroneous and that, because of that material mistake, the Council had, at that prior time, operated under a misapprehension as to the factual predicate underlying that prior rezoning.

In the case sub judice, the subject property, prior to the 1989 comprehensive rezoning, had been designated in both the Town of Oxford Comprehensive Plan and the Talbot County Comprehensive Land Use Plan as a development area. The...