Haldemann v. Board of County Commissioners

252 A.2d 792, 253 Md. 298, 1969 Md. LEXIS 966
CourtCourt of Appeals of Maryland
DecidedMay 1, 1969
DocketNo. 215
StatusPublished
Cited by2 cases

This text of 252 A.2d 792 (Haldemann v. Board of County Commissioners) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haldemann v. Board of County Commissioners, 252 A.2d 792, 253 Md. 298, 1969 Md. LEXIS 966 (Md. 1969).

Opinion

Singley, J.,

delivered the opinion of the Court.

Mr. and Mrs. Samuel M. Pistorio (the Pistorios) are the owners of a tract of some 154 acres in Howard County which lies in the southeast quadrant of the U. S. Route 29—Interstate 70-N interchange. The property is bounded on the north by Route 70-N, on the west by Route 29, on the south and southeast by garden-type apartments, and on the east has a frontage of some 250 feet on Rogers Avenue, Maryland Route 99. The Pistorios, as permitted by § 14.25 of the Zoning Regulations of Howard County (4th Ed. 1968)1 filed a petition with the Zoning Commissioner of Howard County for the reclassification [300]*300of the tract from an R-20 District (one and two family detached residences, minimum lot size 20,000 square feet) to an M-R District (manufacturing, restricted).

The Zoning Commissioner transmitted the petition to the Planning Commission, as provided by §§ 14.252 and 33.02 of [301]*301the Regulations, and the Commission recommended denial if action was to be taken prior to 1 June 1968, since the Commission proposed to draft a master plan for the area by that date. On 15 February 1968, after formal hearing, the Board of County Commissioners (the Board) granted the reclassification. Haldemaun, one of those who had opposed the rezoning before the Board, sought a declaration 2 from the Circuit Court for Howard County, sitting in equity, that the action of the Commissioners was “* * * illegal, discriminatory, arbitrary and capricious,” and therefore null and void. The Pistorios, on motion, were permitted to intervene and answered. From a decree dismissing the bill of complaint, this appeal was taken.

Haldemann contends first, that the lower court erred when it treated the M-R classification as if it were a non-Euclidean or floating zone, thus relieving the Pistorios of the necessity of showing that there had been a mistake in the original zoning or a change in the character of the neighborhood. Haldemann’s second contention is that, regardless of whether an M-R zone is or is not a floating zone, the lower court erred in holding that the issue was fairly debatable and that the result involved no abuse of discretion by the Board. We think that this challenge must fail, and we will affirm the dismissal of Haldemann’s bill.

More than a decade ago, this Court in Huff v. Bd. of Zoning Appeals, 214 Md. 48, 133 A. 2d 83 (1957) gave approval to the floating zone concept, by upholding that part of the zoning regulations adopted in 1955 by the County Commissioners of Baltimore County, which provided for the reclassification of tracts of not less than five acres as “manufacturing, restricted” ; specified the procedure to be followed in creating M-R zones; detailed the permitted uses, and imposed certain limitations on development. See Baltimore County Zoning Regulations (2d Ed. 1964) § 240. On 16 May 1961, the County Commissioners of Howard County adopted zoning regulations for that county. § 14 of those regulations deals with M-R Districts. The statement of purpose is almost identical with that in the Baltimore [302]*302County regulations; the permitted uses, quite similar; the limitations on development, more detailed. As the lower court observed, the Howard County regulations were “drafted carefully in the light of Huff v. Bd. of Zoning Appeals.”

We think that Huff, supra, is clearly determinative of Haldemann’s first contention. See also, Hunter v. Bd. of County Comm’rs for Carroll County, 252 Md. 305, 250 A. 2d 81 (1969); Eschinger v. Bus, 250 Md. 112, 242 A. 2d 502 (1968); Bigenho v. Montgomery County Council, 248 Md. 386, 237 A. 2d 53 (1968); Kramer v. Bd. of County Comm’rs for Prince George’s County, 248 Md. 27, 234 A. 2d 589 (1967); Beall v. Montgomery County Council, 240 Md. 77, 212 A. 2d 751 (1965); Costello v. Sieling, 223 Md. 24, 161 A. 2d 824 (1960). We have no hesitancy in holding that Howard County’s M-R District, like Baltimore County’s, is a non-Euclidean or floating zone to which the “change-mistake” rule does not apply.

With respect to Haldemann’s second contention, we agree with the lower court’s conclusion that the question presented to the Board was fairly debatable and that there was no abuse of discretion. The Howard County Planning Commission, to which the application was referred for a report and recommendation, recommended that the application be denied if action were taken on it before 1 June 1968. Its report to the Board reached the following conclusions:

“1. The petitioner’s request is not in accordance with the General Plan of Howard County, adopted July 20, 1960.
2. The subject property will only have one point of access, either existing Rogers Avenue or relocated Rogers Avenue, which will probably not be constructed until after 1976.
3. The requirements set forth in Section 14.252 should be shown clearly on the preliminary development plan, especially for screenings and planting.
4. There are 37 acres of M-R zoned land within 6,000 feet of the subject property which are undeveloped.
[303]*3035. The Planning Commission believes that the M-R request is premature and that the Board of County Commissioners should defer action until June 1, 1968, so that the Planning Commission can prepare a Master Plan3 for the Second Election District which would include a specific proposal for an improved circulation system for this area. The proposed 154-acre M-R District needs an additional vehicle access to either Route 99 or Route 40 without funnelling traffic through the apartment area.”

On 4 January 1968, the Pistorios’ application was the subject of a public hearing before the Board. Six neighborhood groups and a number of individuals, including Haldemann, appeared as protestants. The protestants produced two expert witnesses, Eugene J. Clifford, a traffic engineer and Arthur L. Hundermark, a realtor. Mr. Clifford testified that Rogers Avenue, which provides the only access to the Pistorio tract, has an average width of only 24 feet; that as presently laid out, it has a peak capacity of 850 cars per hour; that present peak volume is 300 cars per hour; and that it was his opinion that the Pistorio tract, when fully developed, would add 900 cars per hour during peak periods. There was also testimony at the hearing that the relocation and widening of Rogers Avenue was projected but had not been scheduled by the State Roads Commission. Mr. Hundermark testified that the granting of the application would cause a depreciation in the value of the private residences on Rogers Avenue. Campbell V. Helfrich, who testified for the Pistorios, maintained that any possible depreciation would be obviated by the relocation of Rogers Avenue.

On 15 February 1968, the Board adopted a resolution granting the requested reclassification and made the following findings of fact:

“1. That there exists a need for a M-R District in the area of the subject property.
2. That the industrial development of the subject [304]*304property as a complete unit and according to the requirements of the M-R District in the Zoning Regulations will benefit the general public and will promote the general economic welfare of the community.

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Related

ZONING BD. OF HOWARD CTY. v. Kanode
267 A.2d 138 (Court of Appeals of Maryland, 1970)
Bowie v. Board of County Commissioners
253 A.2d 727 (Court of Appeals of Maryland, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
252 A.2d 792, 253 Md. 298, 1969 Md. LEXIS 966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haldemann-v-board-of-county-commissioners-md-1969.