Wells v. Pierpont

253 A.2d 749, 253 Md. 554, 1969 Md. LEXIS 990

• Court: Court of Appeals of Maryland
• Decided: May 27, 1969
• Docket: [No. 184, September Term, 1968.]
• Status: Published

Opinions

McWilliams, J.,

delivered the opinion of the Court. Barnes, J., dissents. Dissenting opinion by Barnes, J., at page 561 infra.

In 1918 the appellee (Pierpont) bought the northwest corner of Windsor Mill Road and Clarke Avenue in the Baltimore County suburb of Woodlawn, which is about a mile west of the western boundary of Baltimore City. Ever since then the 14 room frame house on this two and one-third acre lot (the property) has been his home. In 1965, having reached the age of 81, he sold it to a supermarket entrepreneur. Since the property was in an R-6 (Residence, One and Two-Family) zone, a condition precedent to the consummation of the sale was that Pierpont would effect the reclassification of the property from R-6 to B-L (Business-Local). In June 1965 the Zoning Commissioner denied his petition. The County Board of Appeals (Board), in September 1967, reversed the Zoning Commissioner and granted the reclassification. In May 1968 the trial judge, Maguire, J., affirmed the action of the Board.

The property was placed in the R-6 classification by the adoption of the Comprehensive Zoning Map of November 1962 (the map) which, it is conceded, contains no error. Pierpont insists, however, that there was before the Board evidence of a substantial change in the character of the neighborhood, subsequent to the adoption of the map, sufficient to make that issue fairly debatable. Both the Board and Judge Maguire agreed with him. W'e'do not. As'we proceed to a consideration of the narrow question- thus presented, one must be mindful of the relevant facts and circumstances.

The section of Windsor Mill Road with which' we are concerned runs from the city line northwesterly to the Baltimore Beltway. It is an old road with only one lane of traffic in each direction. It runs downhill toward the property and then goes uphill for. perhaps -1000 feet,to the crest of a.ridge, continuing on from there for something less than a mile to the Beltway. In 1964 Clarke Avenue was widened and, renamed Woodlawn Drive. It intersects Windsor Mill Road at right angles. Judge Maguire, in his opinion, said it “is at the present time a major highway in Baltimore County.”

As earlier mentioned the property lies in the northwest quadrant of the intersection. The northeast quadrant contains the playground of the Woodlawn Elementary School. The Volunteer Fire Company’s building (the firehouse) occupies the southeast quadrant. The remaining quadrant includes the first of a row of well-kept detached houses. Abutting the property to the north is the Woodlawn Cemetery. Gwynn Oak Amusement Park is on the same side of Woodlawn Drive about one-half mile northeast of the property. On both sides of Woodlawn Drive, south of Windsor Mill Road, abutting the firehouse on one side and the residential lots on the other, the Clarke Manor Apartments (220 units) are located. Abutting the property on the northwest is the development known as Maple Hill consisting of about 20 houses. The predominant classification to the northwest, west and south is R-6. Indeed, there are no commercial uses on Windsor Mill Road between Woodlawn Drive and the Beltway except three non-conforming uses, one of which is a building containing nothing but unattended dial switching gear belonging to the telephone company; the other two are a service station and a small food market. A half mile or so to the northwest of the property there are several parcels that have been reclassified from R-6 to R-A (Residence-Apartments). Moving in an easterly direction along Windsor Mill Road, one encounters, after passing the Woodlawn Elementary School, the Woodlawn business district which was classified B-L by the adoption of the map. About a mile to the southwest is the large Security Boulevard Shopping Center, “affirmed and recognized” by the map. Other shopping areas will be found along Liberty Road which runs parallel to Windsor Mill Road a mile or more farther north.

It is now firmly established that there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom there must be produced strong evidence of mistake in the original zoning or comprehensive rezoning or else evidence of substantial change in the character of the neighborhood. Minor v. Shifflett, 252 Md. 158 (1969), and the cases therein cited; Randolph Hills, Inc. v. Whitley, 249 Md. 78 (1968); Woodlawn Area Citizens Ass’n v. Board, 241 Md. 187 (1966). And, of course, the burden of proof facing one seeking a zoning reclassification is quite onerous. Agneslane, Inc. v. Lucas, 247 Md. 612, 618 (1967), and the cases therein cited.

To support his contention that the evidence before the Board in respect of a substantial change in the character of the neighborhood made the issue fairly debatable Pierpont relies principally upon the testimony of Frederick P. Klaus whom we described, in Bosley v. Hospital, 246 Md. 197, 202 (1967), as “a well-qualified real estate expert.” Mr. Klaus cited the widening of Woodlawn Drive (Clarke Avenue) in 1964 as the most significant evidence of change in the character of the neighborhood. The result, he said, was the movement of the center of Wood-lawn from east of Gwynn Oak Avenue to the intersection of Windsor Mill Road and Woodlawn Drive. Even if his statement is correct, and quite likely it is, it has no validity in the context of the instant case. The testimony of George E. Gavrelis, Baltimore County’s Director of Planning, an excerpt from which follows, is uncontradicted:

“Q. Mr. Gavrelis, at the time the land use map was adopted, was Woodlawn Drive then known as Clarke Boulevard [Avenue] located as it presently exists on the land use map? A. Woodlawn Drive, then called Clarke Boulevard [Avenue], was in fact, shown on the Western Area Master Plan. I believe that the location, finally constructed, was in almost precise correlation with the route shown on the map — obviously there could have been changes within a matter of feet, when construction occurred, from the route predicted, but essentially the route predicted and the construction that occurred were about the same, with only but minor change. [Emphasis added.]

“Q. Were the Clarke Manor Apartments located on the land use map when it was adopted finally? A. The Clarke Manor Apartments, in fact, secured their apartment zoning by means of the map.”

The “character of the neighborhood,” as it concerns us here, was established by the map in November 1962. The map contemplated Woodlawn Drive almost precisely as it exists today just as it contemplated the erection of the Clarke Manor Apartments. It contemplated also the integrity, which has been maintained, of the R-6 classification along Windsor Mill Road west of Woodlawn Drive. Since Woodlawn Drive is the warp and woof of the neighborhood’s “character” it seems idle to argue that it has been changed thereby. Cf. Goucher College v. DeWolfe, 251 Md. 638 (1968); Bosley v. Hospital, supra.

Mr. Klaus next cited a 22 acre tract “three blocks” west of the property (beyond the ridge), on the same side of Windsor Mill Road, which was reclassified from R-6 to R-A in June 1964. At the time of the hearing, May 1967, it was still “undeveloped.” He cited also a contiguous parcel of 26 acres, to the north of Windsor Mill Road, “five blocks” from the property, which was reclassified from R-6 to R-A in November 1965. At the time of the hearing construction had begun on that parcel. We fail to see how these two rezonings can affect the “character” of the neighborhood. The map ordained the construction of apartments (Clarke Manor) within a stone’s throw of the property. More apartments a quarter to a half mile away, and out of sight to boot, other than to increase the population, would seem to be inconsequential and, as we said in County Comm’rs v. Fairwinds Beach Club, Inc., 230 Md. 569, 572 (1963), “a mere increase in population does not prove a change in the character of the neighborhood to justify another type of zoning.” Cf. Board v. Kines, 239 Md. 119 (1965).

A half mile or more to the northeast of the property is a 63 acre tract, on the same side of Woodlawn Drive, the near end of which has been occupied by the Gwynn Oak Amusement Park for a number of years. The amusement park was, of course, a non-conforming use at the time of the adoption of the map, at which time sections of the entire 63 acre tract were classified R-10, R-6 and B-L. In September 1964 the entire tract (63 acres) was reclassified to B-R (Business, Roadside); at the same time a special exception was granted for the amusement park use. We are urged to look upon this rezoning as significant evidence of a change in the character of the neighborhood but we are not persuaded that this is so. The reclassification to B-R, we think, is more an intensification of the B-L classification than a change in use. In any case the adoption of the map committed a good part of the tract to commercial use. Furthermore, the very fact of the granting of the special exception for the amusement park, for some years a non-conforming use, presumes a determination by the zoning authorities that the requested use would not be “detrimental to the health, safety, or general welfare of the locality involved,” Baltimore County Zoning Regulations, 502.1 a, or, as expressed in Wahler v. Montgomery County Council, 249 Md. 62, 69 (1968), that the use specially excepted is “compatible with the residential character of the neighborhood.” While we are reluctant to hold that the neighborhood actually extends as far as the amusement park, it seems fair to say that, even if it does go that far, the amusement park and the R-6, R-10 and B-L zoning were facets of the character of the neighborhood in November 1962. In our judgment the reclassification, in September 1964 to B-R, in the circumstances, had no discernible effect on the character of the neighborhood. Indeed, the B-R classification to this day seems not to have been exploited.

Several other rezonings on the west side of the Beltway were discussed but we think they are too remote to have any significance in the case at bar.

Mr. Gavrelis testified that the map sought to confine the “commercial potentials” to the shopping area on Windsor Mill Road east of Woodlawn Drive, the Security Boulevard Shopping Center and the existing “commercial activity” along Liberty Road. He testified also that, for the foreseeable future, they were entirely adequate. Pierpont himself freety conceded that “there are plenty of places” to shop in the Woodlawn area; “plenty of them * * * and room [in the commercially zoned area] for more” he added. Although Mr. Klaus admitted “there have been no commercial changes since the adoption of the map” he said he felt that “the commercial aspect of development” had not “kept up with the classifications that have occurred for other uses.” However, his answer to a question on cross-examination casts some doubt on the depth of his zoning expertise and reveals a rather curious philosophy which, to be sure, is at odds with the law of zoning as it has been developed by this Court. He was asked, “Where would you say the zoning [along Windsor Mill Road] ought to stop?” He replied, “Where the economics dictate it should stop.” Mr. Gavrelis pointed out also that the investment in the existing facilities in the old Woodlawn shopping area “ought not to be further diluted” by a supermarket on the Pierpont property for which there is no need.

Much is made of the fact that the firehouse, “a small, old building” in November 1962, was torn down and that, pursuant to the issuance of a special exception, a larger, modern structure was erected in its place. Our attention is directed to the new kitchen facilities which can accommodate 140 people at “crab feasts, oyster roasts and other social functions.” There is also a siren. One might well ask, however, what a volunteer fire company would be without crab feasts and a siren ? Pierpont thought the new firehouse was “a nice building.” He contributed to the fire company,'he has “never made any objection” to its activities but there have been times when he wished “that siren was in Towson instead of Woodlawn.” Without doubt there has been more going on at the new firehouse than the old one was ever able to accommodate but it has not been made plain to us that the character of the neighborhood has been disturbed thereby. In any case perhaps we should assume the zoning authorities satisfied themselves before issuing the special exception that the permitted use would be compatible with the character of the neighborhood. Wahler v. Montgomery County Council, supra.

Appellant produced W. B. Guy, Jr., and Bernard Willemain as expert witnesses. Mr. Willemain was of the opinion that the R-6 classification of the property should not be changed. Mr. Guy thought there had been enough evidence of change to justify a reclassification of the property to R-A, a statement from which counsel for Pierpont seems to derive much comfort but which fails of persuasion as far as we are concerned. We doubt that anything can be gained by an analysis of the testimony of either Mr. Guy or Mr. Willemain for we see nothing in the record before the Board which could have made the issue of substantial change in the character of the neighborhood fairly debatable. In short, since Pierpont has failed to sustain his “onerous” burden of proof, the order of the learned trial judge affirming the order of the Board of 6 September 1967 must be reversed.

Order reversed.

Appellee to pay the costs.