MacK v. Crandell

¶1filed the following dissenting opinion.

¶2I dissent because I cannot agree that upon the facts appearing in the record in this case, the action of the County Board of Appeals in granting the rezoning of the R-A and R-6 portion of the subject property to the B-L zone to conform with the B-L zoning of the northern portion of that property and the B-L zoning of the property to the north was arbitrary, capricious or unreasonable. I quite agree with the last sentence in the majority opinion that the test is whether the action of the Board was arbitrary and unreasonable.

¶3In my dissenting opinion in MacDonald v. Board of County Commissioners of Prince George’s County, 238 Md. 549, 576-582, 210 A. 2d 325, 340-344, I have already indicated that, in my opinion, the Court is in error in applying the Maryland “mistake-change in conditions” rule as the exclusive test in rezoning cases, and gave my reasons for my opinion. These reasons need not be repeated here. I also indicated that, in my opinion, the presumption of reasonableness is just as strong in support of a rezoning action as it was in support of the original zoning action, and this view appears to be the general rule throughout the United States. The Maryland “mistake-change” rule is a minority one, and is being abandoned by jurisdictions which originally followed it. See MacDonald, supra,238 Md. at 590-600, 210 A. 2d at 348-354. Under these circumstances, the Maryland “mistake-change” rule should not be extended to situations in which the Court has not specifically applied the rule and in which the public interest requires a broader and more resilient treatment. In my opinion, the case at bar presents such a situation. It does not involve a rezoning which alters the general outlines of a comprehensive zoning area, but *201is one which considers a small, isolated area or “spot”, if you will, of approximately an acre and one-half with a frontage of approximately 209 feet on Maiden Choice Lane with a depth of approximately 299 feet. The northerly portion of the subject property—a strip 12 feet by 299 feet—was originally zoned B-L which is also the zoning classification of the property to the north; the southern portion of the subject property'—-a strip 20 feet by 299 feet—was originally zoned R-6 which is also the zoning classification of the property to the east and south. The westerly side of the subject property fronts on Maiden Choice Lane, and Shelbourne Road dead-ends at Maiden Choice Lane directly across from the subject property. At the southwest corner, of Maiden Choice Lane and Shelbourne Road, also across from the subject property, is a small area zoned R-A but which is actually used as a parking lot for the Texaco Service Station in a B-L zone adjoining the parking lot on the west.

¶4When the zoning map was adopted by the Baltimore County Council on June 2, 1959, the area of the subject property between the strips of B-L on the north and R-6 on the south was finally zoned R-A (residential-apartment) as a “buffer” zone. Mr. Gavrelis described the considerations leading to the establishment of the small “buffer” zone as follows: The Planning Board “sought to protect a comprehensive and orderly set of land use potentials for the edge situation that on one hand would provide some transition, some buffering, some reasonable set of use potentials for the Mack property, and it turned out to be the edge property, the one that was> closest, as to whether it might go commercial or remain residential or possibly be recommended for land use potentials that were something in between outright single-family residential and outright commercial. After a great deal of consideration, the Planning Board recommended here the third alternative … and the map does in fact show that the County Council as a matter of legislative intent did affirm the fact that the Mack property should be zoned for apartment purposes, and should be used as a buffer, as a transition.” (Emphasis supplied).

¶5The same consideration led to the establishment of the small R-A “buffer” zone, 100 feet by 400 feet, across Maiden Choice Lane and to the west of Shelbourne Road, already mentioned.

¶6*202It seems clear to me that the future zoning of these small “buffer” zones depends upon the actual development in the area, that is, as Mr. Gavrelis states “whether it might go commercial or remain residential.” This is a matter for the consideration of the County Board of Appeals, in the exercise of its delegated' legislative power to rezone when the land owner appears for a rezoning of the small “buffer” area. The Maryland “mistake-change” rule should not, in my opinion, apply in this special situation, inasmuch as the placing of a small area of individual property in a “buffer” zone originally contemplates a re-examination of its zoning status in the future by the Board depending upon the actual development in the area. If the development is predominantly commercial the Board may reasonably rezone the small area as commercial; if the development is predominantly residential it may reasonably rezone it R-6 or leave it zoned as R-A.

¶7The suggested basis for the Maryland “mistake-change” rule —a preservation of the comprehensive zones from unjustified piecemeal rezoning—should not, in my opinion, be made applicable to this small, individual parcel of land forming a “buffer” zone.

¶8The facts in the record indicate that the actual development in the area has indeed been commercial and that the Board could reasonably conclude that the R-A and R-6 portions of the subject property should be rezoned to the B-L zone.1

¶9*203At the time of the 1959 zoning, the property to the north zoned B-L had not been developed. After the zoning, the construction of the Leeds Federal Building (a large office building) was begun and completed. The Food Fair was already built in 1959 as was a Cities Service gasoline station and a large bowling alley. As has been stated, across Maiden Choice Lane toward the north is a large Texaco service station and there is also a large and active shopping center. Behind the Texaco station there is a large paved area used as parking space for the shopping center and the service station, the southern portion of which is the 100 feet by 400 feet R-A zone which is used for parking in connection with the use of the B-L zone.

¶10Miss Mack, the owner of the subject property testified that the air-conditioning unit outside the Leeds Federal Building & Loan Association emits a great deal of noise making it impossible for her to use the bedroom on the north side of the existing dwelling house. Her yard is cluttered with beer bottles, beer cans and other debris which the people using the adjacent parking lot throw on her property and the police have been unable to stop it. She indicated that she had tried unsuccessfully to sell the property in recent years. The only offers she has had have been those of a commercial nature.

¶11It may be observed also that since Shelbourne Road dead-ends at Maiden Choice Lane opposite the subject property, the lights from motor vehicles using that road would necessarily shine directly at the subject property, making it difficult—one would think—to develop the subject property for apartment purposes.

¶12An expert for the property owner testified that in his opinion the highest and best use for the subject property would be for the uses permitted in the B-L zone with a special exception *204for a gasoline service station; that because of the way the land is situated, it would not warrant the erection of apartments on the land; that the proposed special exception and use would not be detrimental to the health, safety or general welfare of the locality involved, would not tend to create congestion in the roads, streets or alleys in the locality, would not create any potential hazard from fire, panic or other dangers and would not tend to overcrowd land, cause undue concentration of population, interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences or improvements or interfere with adequate light and air.2

¶13In the light of this testimony, and all of the circumstances, mentioned, the granting of the B-L zoning and special exception was, in my opinion, fairly debatable and in approving the application with three restrictions,3 the Board did not act arbitrarily, unreasonably or capriciously.

¶14There was, of course, testimony offered before the Board which might have led it to a different conclusion if it had accepted that testimony,4 but it is entirely clear that the evaluation of the facts is for the Board and not for the Courts. The Courts will not substitute their judgment for that of the Board, when there is evidence before the Board to make its determination “fairly debatable”. Pallace v. Inter City Land Company, 239 Md. 549, 212 A. 2d 262 (1965).

¶15*205Although I agree with the majority that the facts do not establish a constitutional taking of property without due process of law or the payment of just compensation, as the owner has not established that no reasonable use whatever can be made of the subject property under the existing zoning, nevertheless the difficulty of use for residential purposes, the development of the immediate area to the north and west for commercial purposes and the other facts already mentioned, are important facts to be considered on the issue of whether the action by the Board was arbitrary, unreasonable and capricious. The basic doctrine to be kept constantly in mind is that there should be a free use of private property and that restrictions upon that free use by the governmental power to zone is only justified by the exercise of the police power. As Judge Delaplaine, for the Court, aptly stated in City of Baltimore v. Cohn, 204 Md. 523, 530, 105 A. 2d 482, 486 (Í954) :

“… the governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of the use of his land is not unlimited, and such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Legislative bodies have no authority, under the guise of the police power, to impose unreasonable and unnecessary restrictions on the use of private property in pursuit of useful activities. Nectow v. City of Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842; State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U. S. 116, 49 S. Ct. 50, 73 L. Ed. 210, 86 A.L.R. 654.”

¶16See also Feldman v. Star Homes, 199 Md. 1, 6, 84 A. 2d 903, 905 (1951). When the expert body exercising delegated legislative power determines upon conflicting evidence that the-proposed use will not injure the public welfare and that the elements justifying the exercise of the police power are not injuriously affected by reason of a freer use to be made of an individual property, the Courts should most certainly not disturb, an action granting such a freer use of private property.

¶17*206Then too, it should be kept in mind that inflexible zoning may create and perpetuate monopolies, declared by Article 41 of the Declaration of Rights of the Maryland Constitution to be “odious, contrary to the spirit of free government and principles of commerce, and ought not to be suffered.” The case at bar is a good illustration of this, as a substantial part of the opposition to the granting of the special exception for the proposed Shell service station came from the owner of a nearby Cities Service station who was also the owner of a half-interest in the shopping center including the Texaco service station across Maiden Choice Lane to the west of the subject property. This observation is not intended to be critical of an owner who seeks to preserve an existing advantage created by the zoning laws; it is intended to point out the desirability of upholding the action of boards of appeal in the exercise of a delegated legislative power for the freer use of private property when such action is fairly debatable.

¶18I would reverse the order of the Circuit Court and affirm the order of the Board of March 6, 1965.