Zang & Sons, Builders, Inc. v. Taylor

• Decision Date: 10 February 1954
• Docket Number: No. 72,72
• Citation: 102 A.2d 723,203 Md. 628
• Parties: ZANG & SONS, BUILDERS, Inc., et al. v. TAYLOR et al.
• Court: Maryland Court of Appeals

Page 628

203 Md. 628

102 A.2d 723

ZANG & SONS, BUILDERS, Inc., et al. v. TAYLOR et al.

No. 72.

Court of Appeals of Maryland.

Feb. 10, 1954.

William J. McWilliams and Marvin I. Anderson, Annapolis (McWilliams, Evans & Melvin, Annapolis, on the brief), for appellants.

John H. Hopkins, IV, and Louis M. Strauss, Annapolis, for appellees.

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

COLLINS, Judge.

This is an appeal from a decree of the Circuit Court for Anne Arundel County declaring a zoning resolution of the Board of County Commissioners, (the Commissioners) null and void in so far as the property of the appellant, Zang & Sons, Builders, Inc. (Zang), was concerned.

Zang was the owner of a tract of land, consisting of from 35 to 40 acres, in the First District of Anne Arundel County, a few miles below the South River bridge. It lies within a triangle formed by three highways. The land immediately within each of the three angles of the triangle is zoned 'Heavy Commercial'. The property, consisting of 13.26 acres, within the triangle sought to be rezoned, is bounded on the north and sough by State highways, on the east by land zoned 'Heavy Commercial', and on the west by other lands of the appellant zoned 'Cottage Residential'. It was pointed out by the chancellor that the property in said First Election District was first zoned on June 6, 1950. At that time, the County was operating under Chapter 388 of the Acts of 1947 and Chapter 426 of the Acts of 1949. The property in question, together with other property of said owner, containing altogether some 35 to 40 acres, with a frontage of about 700 feet on Mayo Road, about 1800 feet on Solomons Island Road, and about the same on Central Avenue was zoned 'Agricultural'. On January 3, 1952, the Commissioners adopted a resolution placing said county under the provisions of Article 66B, sections 10 to 37, both inclusive, of the Code of Public General Laws of 1951, with a Planning and Zoning Commission and a Board of Appeals, and providing for the establishing of a new zoning plan for the County. This new zoning plan became effective July 1, 1952.

The appellant, on June 26, 1952, four days before the new comprehensive zoning plan became effective petitioned the Commissioners to rezone its entire property in the aforesaid triangle, including the 13.26 acres here sought again to be rezoned, from 'Agricultural' to 'Cottage Residential'. On September 30, 1952, the Commissioners adopted the following resolution:

'Whereas, conditions in the below described area have changed since the adoption of the Zoning Ordinance for Anne Arundel County on July 1, 1952, now requiring residential lots instead of an agricultural area, and

'Whereas, the Cottage Residential District is more appropriate for urbantype lots than the Agricultural District, and

'Whereas, there is a need for subdivisions of urban-type lots in Anne Arundel County,

'Now therefore, be it resolved, this 30th day of September, 1952, by the Board of County Commissioners of Anne Arundel County, Maryland, that after due consideration and after hearing the report of the Planning and Zoning Commission approving the change, said change having been advertised as required by law, the Board hereby approves the change in zoning from an Agricultural to a Cottage Type Residential Zoning District for the property * * *.'

On December 18, 1952, Zang filed with the Planning and Zoning Board of Anne Arundel County another petition asking that 13.26 acres of its property, which had been rezoned three months before on September 30, 1952, from 'Agricultural' to 'Cottage Residential', be rezoned 'Heavy Commercial' in order that it might be used as an 'open air drive-in moving picture theatre with snack ber inside theatre'. As a result of that application, the Planning Administrator on January 15, 1953, reported to the Commissioners that the Planning and Zoning Commission was of the opinion 'that additional commercial uses would be needed to serve the expanding residential population of the area. This would be an extension of an existing heavy commercial zone to the south and not the creation of a new commercial zone. The Commission believed that the problems of safety, traffic and health would be adequately handled in this location, as far as an outdoor theatre and snack bar were concerned.'

After advertising and posting, the Commissioners held hearings on February 10 March 10, and March 17, 1953, on appellant's application, and on March 17, 1953, six months after the first rezoning, passed a resolution approving the rezoning of the 13.26 acres to a 'Heavy Commercial' district, which resolution contained the following:

'Whereas the population in the vicinity of Annapolis, Parole, Edgewater Beach, Woodland Beach and other adjoining or nearby areas is rapidly increasing thus necessitating additional commercial uses to serve them and commercial zones to contain such commercial uses and

'Whereas, the area petitioned as amended by the Planning and Zoning Commission, being an extension of an existing Heavy Commercial Zone practically adjoins a tavern to the north and a lumber yard to the west and vacant property to the south and east

'Whereas there is a growing trend for outdoor theatres to be constructed in outlying areas where invalids or families with small children who might not otherwise be able to attend a theatre can enjoy these performances, and

'Whereas it is believed that existing residential concentrations are far enough away so that they will not be adversely affected, and 'Whereas it is believed that safety and traffic will not be particularly adversely affected due to the introduction of the new dual highway from Parole to the Crain Highway and eventually to Washington, which will handle most of the through traffic now using Solomons Island Road and Central Avenue, * * *.'

As a result of this action by the Commissioners, the appellees, Lawrence Allen Taylor and Kathleen F. Taylor, his wife, and Arthur Crownover, Jr. and Helen M. Crownover, his wife, owners of residential property directly across the State highways from the rezoned tract and being taxpayers of Anne Arundel County, filed a bill of complaint alleging, for the purposes of this case, the following: the original zoning of appellant's property on June 6, 1950, as 'Agricultural' and the rezoning on September 30, 1952, to 'Cottage Residential'; the petition of December 18, 1952, to rezone to 'Heavy Commercial'; the hearings before the Commissioners; the protests by the complainants and numerous other property owners; and the rezoning by the Commissioners to 'Heavy Commercial'. The Board of Appeals of Anne Arundel County was about to approve a special exception to the zoning regulations to permit the erection of an open air theatre and snack bar. The establishment of this theatre and snack bar in a 'Cottage Residential' neighborhood would seriously depreciate the value of complainants' property; would tend to destroy the comfort, well-being and property rights of the owners of lots and homes in the aforesaid 'Cottage Residential' neighborhood; and would impair and adversely affect the value and marketability of their properties. The action of the Commissioners was arbitrary, unreasonable and discriminatory without any substantial relation to the public health, safety, morals or general welfare. The topography of the property of the appellant was suitable for residential purposes. The addition of a 'Heavy Commercial' section in the area zoned a...