MacDonald v. Board of County Commissioners for Prince George's County & Isle of Thye Land Co.

210 A.2d 325, 238 Md. 549

• Court: Court of Appeals of Maryland
• Decided: May 25, 1965
• Docket: [No. 427, September Term, 1964.]
• Status: Published

Opinions

Oppeni-iEimER, J.,

delivered the majority opinion of the Court. Barnes, J., dissented. Dissenting opinion at page 557 infra.

Adjacent property owners appeal from an order of the Circuit Court for Prince George’s County affirming a zoning action of the Board of County Commissioners for Prince George’s County, sitting as a District Council for the Prince George’s portion of the Mary land-Washington Regional District (the Council). The Council had approved applications of the Isle of Thye Land Company, one of the appellees (the Land Company), to reclassify three tracts of land all zoned R-R (Rural Residential). Two tracts of approximately nine and three acres respectively were rezoned to C-2 (General Commercial) and the third, of about 29 acres, to R-H (Multiple Family, High Rise Residential).

The three tracts are part of a larger area of 655 acres owned by the Laud Company, called Tantallon on the Potomac, located in the southwestern portion of the County, on Swan Creek, which empties into the Potomac. The Woodrow Wilson Bridge and the Capital Beltway are four or five miles to the north. Fort Washington National Park, a 341 acre reservation, is adjacent to the area on the south and Mount Vernon is across the Potomac River to the west.

All the area is included in the Washington-Maryland Regional District and was zoned R-R by the Council on November 20, 1957. The rezoning applications here involved were filed on June 14, 1962 and later amended.¹

The technical staff of the Planning Commission recommended denial of all three applications. Its amended report stated, in part:

“The staff, in its review of this application, concludes that the granting of any zone on this property other than the existing R-R Zone, would be spot zoning. The development which has occurred in the area has been that of single family dwellings on larger than minimum lot size standards, and, the changes which have occurred in this area, the Tantallon community included, are a continuation and solidification of this pattern. * * *”

The Planning Board recommended denial of the R-H rezoning for the reasons given by its technical staff. The Board, however, recommended that the two commercial rezonings (as to the nine and three acre tracts) be approved, stating:

“The Board feels that the subject properties are ideal locations for a marina and restaurant and, further, that such proposed uses would be in keeping with the low-density pattern of development proposed in the Preliminary General Plan for this area.”

At the hearing before the Council, the expert witnesses of the Land Company offered voluminous and plausible testimony as to the attractive nature of the plans for the area which it owns. It claimed but offered no evidence to support a mistake in the Master Zoning Map. It relied, instead, upon claimed substantial changes in the area since the adoption of the comprehensive zoning map. The nature of the alleged changes will be considered hereafter. The Chief Engineer of the Planning Commission elaborated upon the reports of the technical staff, and testified that the changes that had occurred in the area of the Land Company’s property were oriented towards low density, single family development. Neighboring and adjacent property owners, including the appellants, presented testimony in opposition to the reclassifications, with letters from other protestants, including Secretary of the Interior Udall.²

The Council, one of the Commissioners dissenting, approved all three of the Land Company’s applications for rezoning. The formal notice of the Council gave no reasons for its decision. The only statement in the nature of reasons is contained in what appears to be a press release on behalf of the Council. This release, apart from some extraneous remarks, contained the following statements:

“Commissioner Brooke, in making his motion, pointed out that the several proposed 20-story apartments would be 3400 feet back from the river, ‘in a natural valley which would keep them screened from view from the river and the Virginia shore.’

“He also noted expanded highway development in the general area and that neither the Board of Education nor the National Capital Planning Commission opposed the planned community,

“In a second action, the Commissioners unanimously approved changes in zoning requested by the Tantallon developers for two sites in the C-2 classification, for which the developers proposed to construct a small boat marina and a restaurant. The commissioners asked legal counsel if a lesser degree of commercial classification could suffice for these facilities, but it was determined that C-2 was the only appropriate designation.”

It was also stated that the Chairman of the Council, who votes only in case of tie, had declared himself in sympathy with the zoning request. Commissioner Gladys Spellman, who dissented, in a separate announcement, said in part:

“The changes which have taken place in the area are not sufficient to warrant rezoning from a low density, single family category. * * *

“No need has been established for high density apartments in the middle of an area of extremely low density, other than that of remunerative return for the applicant. * * *

“No proof of error in the original zoning was presented.

“The Isle of Thye Land Company plans high-rise apartments on approximately 29 acres, and accordingly requests a change to R-H zoning. However, the use of this zone category in a low-density setting is totally at variance with the purpose of R-H zoning as set forth in the text of the classification * * *.

“We must recognize that the District Council is concerned for the County as a whole and not merely 650 acres of the county. It is certainly not reasonable to assume that because a community is well-planned and well-balanced, it may be set down at any point in the County without doing violence to the surrounding areas. Planning must extend beyond the borders of individual communities and encompass the larger areas of the County in order that communities may complement each other rather than inflict harm upon one another.”

There was a hearing on the Petition for Review of the Council’s order before Judge Loveless. In his opinion affirming the order, the Judge pointed out that the Land Company had not contended there had been a mistake in the original zoning, and that the court had no alternative other than to say that no mistake had been shown. Judge Loveless referred to the 14 items relied upon by the Land Company as changes in the area since the original zoning was made and held they were sufficient evidence to justify a reclassification if the Council, in its legislative discretion, so decided. He held, further, that the issues were fairly debatable, and that the Board’s action in approving the applications was not arbitrary or capricious. We disagree in respect of the Board’s order granting the application to rezone the 29 acres for high-rise apartments.

We have repeatedly held that there is a strong presumption of the correctness of original zoning, and that to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or else of a substantial change in conditions. Greenblatt v. Toney Schloss, 235 Md. 9, 13, 200 A. 2d 70 (1964); Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 269-70, 192 A. 2d 502 (1963) and cases therein cited. The Land Company contends that here comprehensive rezoning is involved, because of the extent of its entire acreage and the nature of its plans for the development of that acreage. However, as Commissioner Spellman points out in her dissent from the Council’s order, it is not the proposed treatment of a particular tract within the broad territory encompassed by the original zoning plan which governs; the impingement of the proposed rezoning upon the general plan is the criterion. See Hewitt v. Baltimore County, 220 Md. 48, 57-60, 151 A. 2d 144 (1959). We hold that, in this case, it is proposed piece-meal rezoning which is involved and that the strong presumption of the correctness of the original comprehensive zoning prevails.

The majority of the Council, in effect, gave no reasons for its order. The alleged changes of conditions in the immediate area adduced by the Land Company to support their application to rezone the 29 acres for high-rise apartments, in our opinion, do not constitute evidence sufficient to make the facts fairly debatable. A number of these changes have taken place, or are contemplated, within the Tantallon tract itself. The building of a golf course, the dredging of Swan Creek, the reservation of a school site within the tract, and the authorization of public utility services for the Tantallon enterprise are as consistent with increased rural residential development as they are with the building of high-rise apartments. The characterization by the appellants of these alleged changes as “bootstrap” arguments, in our opinion, is appropriate. The report of the technical staff of the Planning Commission states that the development which has occurred within the area, including the Tantallon tract, has been a continuation and solidification of the single family dwelling pattern, with lots larger than the minimum standard, and this statement was not contradicted. The road improvements referred to by the Land Company do not change the character of the neighborhood; as the technical staff pointed out, “[t]he character of the surrounding area is reflected in the road network which consists of generally narrow, winding two-lane pavements designed to serve traffic volumes generated by low density, large lot development.” The completion of the Woodrow Wilson Bridge and Anacostia Freeway listed as additional changes presumably were envisaged in the comprehensive zoning plan, adopted by the legislative body only a little less than five years before the Land Company’s application. In any event, the Bridge and Freeway are some miles away.

The Planning Board, as well as its technical staff, recommended that the applications for the high-rise apartment rezoning be denied. The majority of the Council refused to accept the Board’s recommendations, without substantial evidence to support its actions. In similar circumstances, although on varying facts, we have held that an order of the lower court affirming the Board’s action must be reversed. Greenblatt v. Toney Schloss, supra; Levitt & Sons v. Board, 233 Md. 186, 195 A. 2d 723 (1963). See also Shadynook Imp. Assn. v. Molloy, supra. Because there was no evidence to make the issue fairly debatable, the same result must follow here.

The Land Company does not contend that denial of the application would preclude the use of its property for any purpose to which it is reasonably adapted. On the contrary, it admitted it would be practical, although from its point of view not as satisfactory, to continue the development of Tantallon without high-rise apartments. The developer’s desire to make additional profits is-a legitimate motive, but not sufficient to justify a rezoning. Shadynook Imp. Assn. v. Molloy, supra, at 272 and cases therein cited.

In Board v. Oak Hill Farms, 232 Md. 274, 192 A. 2d 761 (1963) relied upon by the appellees, the situation was the converse of that here presented. There, the Planning Commission rejected the recommendation of its technical staff that the application for rezoning be denied; we affirmed the order of the lower court reversing the Councils’ action denying the petition because we found (as we find here) that there was no evidence to support the Council’s order.

The situation as to the two smaller tracts, for each of which application was made for commercial rezoning, in our opinion, is different. While the planning staff recommended denial of these applications as well as of the request for the R-10 zoning, the Planning Board disagreed with the recommendations as to the two smaller tracts. We agree with the court below that the issues as to these requests were fairly debatable. A zoning authority, when there is evidence to justify its finding, may determine that the creation of a small retail district within a residential area is for the accommodation and convenience of the residents, and so in the public interest. See Hewitt v. Baltimore County, supra, at 60. There was some evidence as to the need for more maritime amenities, and as the Planning Board pointed out, the proposed marina and restaurant would be consistent with the low-density pattern of development. The Council’s action as to these applications was properly sustained.

Order reversed in part mud affirmed in part and case remanded for further proceedings in accordance with this opinion; the costs to be paid by the appellees.

1 . As to the 39 acres, the original application asked for a rezoning to the R-10 classification (Multi-Family, Medium Density, Residential). On November 10, 1963, a new zoning classification was adopted, the R-H zone, and the application as to the 39 acres was amended to apply to the new zone. The report of the technical staff, as to the 39 acres, was amended after the application had been amended.

2 . In this appeal, the United States has filed a brief as amicus curiae, asking that the order of the court below be reversed.