Wells v. Pierpont

Barnes, J.,

dissenting:

I dissent because, in my opinion, there veas sufficient evidence before the Board to make “fairly debatable” its finding that there had been sufficient change in conditions in the neighborhood to justify the rezoning of the subject property from R-6 (Residence, One and Two-Family) zone to the B-L (Business-Local) zone.

If there ivas “substantial evidence” before the Board to support its decision, then the issue was “fairly debatable” and we should affirm the Circuit Court’s order affirming the decision of the Board. As Judge Singley, for the Court, recently stated in Kirkman v. Montgomery County Council, 251 Md. 273, 277-78 , 247 A. 2d 255, 258 (1968), quoting with approval from the opinion of the trial court:

“ ‘The “substantial evidence” test has been further defined and refined in later cases, including Board v. Oak Hill Farms, 232 Md. 274 , [ 192 A.2d 761 (1963)], and Snowden v. City of Baltimore, 224 Md. 443 , [ 168 *562 A. 2d 390 (1961)]. “Substantial evidence” is held to be “more than a scintilla” and such evidence “as a reasonable mind might accept as adequate to support a conclusion” and “enough to justify, if the trial were to a jury, a refusal to direct a verdict.” Board v. Oak Hill Farms, supra. In Snowden, supra, the Court said, inter alia, “The heart of the fact finding process often is the drawing of inferences from the facts. The administrative agency is the one to whom is committed the drawing of whatever inferences reasonably are to be drawn from the factual evidence. ‘The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.’ Davis, [Administrative Law Treatise (1958) ], Sec. 29.05, p. 139.” ’ ”

In Kirkmam, we held that three reclassifications of land, one, approximately 1000 feet, and the other two, approximately 6000 feet, from the property under consideration in that case, made subsequent to the adoption of the comprehensive zoning ordinance constituted substantial evidence sufficient to support the rezoning.

In the instant case, the record indicates that there are existing apartments immediately behind the properties across Windsor Mill Road from the subject property. Some two blocks west of the subject property on Windsor Mill Road, 22.47 acres of land were rezoned on June 26, 1964 (subsequent to the adoption of the comprehensive zoning map on November 15, 1962) from the R-6 zone to an R-A zone which allowed the construction of 360 apartment units on that land. To the north of the 22.47 acre tract, and contiguous to it, a 26.6 acre tract was rezoned from R-6 to R-A on November 23, 1965, allowing the construction of approximately 400 apartment units, which were under construction at the time of the hearing before the Board. The 26.6 acre tract is some three blocks from the subject property. The land of Walter J. Crismer & Son, Inc. on the west .side of Swynndale Avenue, consisting of 18.5 acres, was rezoned from R-6 to R-A on January 20, 1964, and allows the erection *563 of 296 apartment units. This tract is approximately 3000 feet from the subject property “as the crow flies.”

On September 10, 1964, 63.75 acres of land used in part for the Gwynn Oak Amusement Park and on the same side of Woodland Drive as the subject property and about one-half mile northwest of the subject property was rezoned from the R-10, the R-6 and the B-L zones to the B-R zone, with a special exception for an amusement park. Prior to this rezoning, the amusement park use was a non-conforming use; after the rezoning it became a conforming use with the entire 63.75 acre tract available for development for the uses permitted in the BR zone. These permitted commercial uses include those permitted in a B-L zone (various types of stores, dry cleaning establishments, hand laundry employing not more than 5 persons, photographic studio, offices and office buildings) ; those permitted in the B-M zone (automobile sales rooms, billiard and pool rooms, commercial recreational enterprises, including dance halls, service garage, night clubs, pawn shops, second-hand store, theatre, including drive-in and warehouse—-sales and storage) ; but also, among others, uses for a soft drink bottling establishment, motel or motor court, greenhouse, laboratory and, if 50 feet from the residential zone boundaries at the ends of the commercially zoned frontage, building materials storage and sales yard, kennel, lumber yard, stone or monument work and tire retreading or recapping.

In addition to the zoning reclassifications mentioned, all made subsequent to the adoption of the comprehensive zoning map, there have been drastic changes, in fact, in road conditions in the neighborhood of the subject property. When the comprehensive zoning map was adopted on November 15, 1962, Pierpont Lane, which was used as an entrance to the subject property and to a portion of Mr. Pierpont’s property sold by Mr. Pierpont in 1918, was a narrow private road. Introduced into evidence was a photograph taken in October, 1962 (approximately one month before the comprehensive zoning map was adopted on November 15, 1962) which clearly indicated this narrow country road shaded on both sides by trees which in many places met overhead to form an arch. In 1964, land was acquired from Mr. Pierpont to convert this country road into *564 the present four lane, .48-foot paved public highway on a 70 foot right-of-way now known as Woodlawn Drive. The proposed highway was indicated on the comprehensive zoning- map, approved November 15, 1962 as Clarke Avenue. Part of the Pierpont land was also acquired in 1964 for the widening of Windsor Mill Road, which is now 39 feet wide on a 55 foot right-of-way.

Mr. Klaus was of the opinion that:

“* * * the greatest impact on the subject property is that Woodlawn Drive has moved the center of Wood-lawn in a northerly direction. It is a very wide street, as has been testified by the engineer, and it connects into large complexes of industry, and the Social Security operation, and by the construction of this road as a cross and feeder road, it has actually moved.the traffic pattern from the old Woodlawn area to an area where the Pierpont property is.”

After pointing out that Windsor Drive was constructed through the Pierpont property and that prior to that time the Pierpont property had access to Windsor Mill Road by means of a private lane, Mr. Klaus testified:

“* * * the. whole pattern of movement has changed by the construction of Woodlawn Drive, and makes this property, of course, much more accessible for commercial uses than the heart of Woodlawn, which, as has been..testified to, is an older area, which we have had in Reisterstown, in Cockeysville, and Towson —but by the construction of new feeder roads, business has moved toward these roads because it has much better access.”

The Board, in my opinion, properly found:

“Prior to the construction of these two roads, i.e. in 1962 at the time of the map adoption, what is now' Woodlawn Drive' and what was then Pierpont Lane may be clearly seen on Petitioner’s Exhibit No. 3-H. It would- be hard to find a better example of change' *565 in the character of roads than those surrounding Mr. Pierpont’s property.”

The majority indicates that because the proposed location of Woodlawn Drive appeared on the comprehensive zoning map, adopted November 15, 1962, Mr. Klaus’ testimony in this regard “has no validity in the context of the instant case.” I do not agree with this conclusion. The mere drawing of lines on a map indicating the location of a future proposed road cannot, in itself, forecast in any definitive way what will be the ultimate effect of that road upon the neighborhood if, when and as the rights-of-way are acquired, the road actually constructed, and then used by the general public under the conditions existing in the future. The impact upon the neighborhood and upon the individual property owner, in that neighborhood occurs when the rights-of-way are actually acquired, the road construction actually fakes place and the road is then used by the public. It is only then that it can be determined whether or not there has been a change in the character of the neighborhood as a result of the construction and use of the road. There might be no such change or there may be a change, depending upon the facts presented to the Board at the time it considers a rezoning application. In my opinion, “change in the character of a neighborhood" is a fact, not a theory. The presence of the proposed road in the zoning map is a factor to be considered by the Board but it is by no means conclusive. All of the facts presented at the hearing are relevant to the issue, and may be considered and weighed by the Board in reaching its decision. This conclusion was implicit in our decision in Finney v. Halle, 241 Md. 224 , 216 A.2d 530 (1966), in which we held that the first and most important factor indicating a change in conditions in the neighborhood was the construction of the Baltimore County Beltway and its effect upon the property involved in that case. Although in Finney , the comprehensive zoning map, approved April 15, 1959, did not show the proposed Beltway, the Baltimore County authorities knew at the time of the approval of the map, the general location of the proposed Beltway. An even stronger case is Jobar Corp. v. Rodgers Forge Community Ass’n, 236 Md. 106 , 202 A. 2d 612 (1964). In *566 Jobar, Stevenson Lane appeared on the comprehensive zoning map, approved April 15, 1955, but at that time it had not been settled whether or not that road would ever be extended to connect York Road and Bellona Avenue. At the time of the approval of the map, in 1955, Stevenson Lane was a small 12 to 15 foot road, and was, in part, a private drive. It was extended and widened in 1961 and 1962 so that at the time of the hearing before the Board, it was a fully paved 42 to 44 foot bituminous concrete road with a 70 to 80 foot right-of-way; it allowed 14 feet for traffic in each direction and became a major traffic artery between York Road and Charles Street and Bellona Avenue. The experts produced by the applicant before the Board in Jobar testified that this change in the character of Stevenson Lane which “perhaps more than any other land use consideration” would affect the character of the immediate neighborhood of the property involved in that case. We sustained the rezoning in Jobar and, in my opinion, the decision in that case should require us to sustain the rezoning in the present case in view of the close similarity between the situation in regard to the change in the character of the roads in the respective cases.

The majority discounts the effect of the rezoning subsequent to November 15, 1962, of substantial areas of land in the neighborhood from R-6 to R-A and the construction of apartments on part of the rezoned R-A land, quoting a dictum of the Court in County Comm'rs of Anne Arundel County v. Fairwinds Beach Club, Inc., 230 Md. 569, 572 , 187 A. 2d 845, 846 (1963), that “a mere increase in population does not prove a change in the character of the neighborhood to justify another type of zoning.” It is clear, however, that an increase of population may under certain facts and with proper findings of the Board be an important factor in indicating a sufficient change in the neighborhood to justify a rezoning of a commercial area to care for the needs of the increased population. Indeed, this is indicated in the opinion of the Court in Fairminds immediately following the quotation mentioned, where Judge (later Chief Judge) Henderson stated, for the Court:

“It was also argued that because of the increase in population a need for additional shopping facilities was *567 demonstrated. But there was precise testimony that shopping facilities in the neighborhood were more than adequate, and the testimony as to public need was based upon general conclusions from population figures that were not even put in evidence. The protestants argued, with some force, that the increase in shopping facilities and service stations in the area defined exceeded the increase in population. The Board made no finding of fact on this point but only a general finding that ‘conditions have changed’.” (230 Md. at 572 , 187 A. 2d at 846 )

The clear indication is that if the necessary proof had been forthcoming and if the necessary finding by the Board had been made, the result would have been different. Our later decisions indicate that a substantial change in population density in a neighborhood can be an important factor in indicating a sufficient “change in conditions” to justify a Board in rezoning a property for commercial purposes tO' satisfy the needs of the then existing population. As we stated in Bosley v. Hospital for Consumptives, 246 Md. 197, 204 , 227 A. 2d 746, 750 (1967):

“Moreover, the rezoning changes subsequent to November 1955, previously discussed, were important changes in the law and resulted in substantial changes in the character of the neighborhood even though all of the rezoning changes were to more intensive residential use by an increase in density from R-6 or R-10 to R-A. The substantial development of housing units and the concurrent growth in population could reasonably lead to need for additional commercial zoning in the area to supply the wants of the increased population. At least, reasonable men could conclude—as the Board concluded—that these changes in conditions in the area could justify the rezoning of the subject property to the B-L zone. The Courts may not substitute their judgment for that of the Board when the Board’s decision is supported by substantial evidence and the issue before the Board was fairly debatable. Vogel v. McCosh, 242 Md. 371 , 219 A. 2d 89 (1966). See Fin *568 ney v. Halle, 241 Md. 224 , 216 A. 2d 530 (1966); Oursler v. Board of Zoning Appeals of Baltimore County, 204 Md. 397 , 104 A. 2d 568 (1954). See also Rohde v. County Board of Appeals for Baltimore County, supra.”

These-reclassifications for-apartment house use were substantial. William B. Guy, Jr., an expert for the protestants, testified that there was zoning for an additional 1000 apartments of which about 700 had been built to the north and south of the subject property.

Another zoning change subsequent to the adoption of the comprehensive zoning map on November 15, 1962, was the reclassification of the 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. As already has been indicated; this amusement park on November 15, 1962, was a non-conforming use and the entire tract had R-10, R-6 and B-L zoning classifications. On September 10, 1964, this entire tract was rezoned to B-R (Business-Roadside) and at the same time, a special exception was granted for amusement park use. The conversion of this commercial non-conforming use, to a conforming use was a significant change which had direct bearing on the “character of the neighborhood.” The prevailing zoning theory is that non-conforming uses, which are incompatible with the general character of the neighborhood, will ultimately “wither on the vine” and disappear so that ultimately in the future the entire area will be in conformity with the generally established use in the neighborhood. Minor v. Shifflett, 252 Md. 158, 167 , 249 A. 2d 159, 165 (1969); S tieff v. Collins, 237 Md. 601, 604 , 207 A. 2d 489, 491 (1965); Schiff v. Board of Zoning Appeals, 207 Md. 365, 368 , 114 A. 2d 644, 645 (1955); Colati v. Jirout, 186 Md. 652, 657 , 47 A. 2d 613, 615 (1946). Obviously the rezoning of the R-10 and R-6 portions of the 63 acre tract to the B-R zone is a recognition by the Board that commercial development in the neighborhood is in the public interest and the granting of the special exception for the continuation of the theretofore non-conforming amusement park (thereby making it a conforming commercial use) is en *569 tirely consistent with that concept and is not, in my opinion, compatible with the concept that the neighborhood is to remain and be developed as an R-6 zone. The permitted commercial uses in the B-R zone which have already been set forth, in part, are hardly compatible with the development of the neighborhood as a R-6 zone for single family houses.

There seems little doubt, in my opinion, that the 63 acre tract is within the “neighborhood,” although the majority states it is “reluctant” to hold that it is. As Chief Judge Hammond aptly stated, for the Court, in Goucher College v. DeWolfe, 251 Md. 638, 644 , 248 A. 2d 379, 383 (1968):

“The matter of the reaches of a neighborhood in a given case and how near a change must be to affect its character are primarily for the Board to determine.”

In the present case, the Board determined that the changes mentioned above were within the reaches of the neighborhood and affected its character. It is clear to me that the Board was correct in these determinations. At least, the determinations were “fairly debatable.”

The Board properly considered that the 63 acre tract was within the “neighborhood” and our prior decisions indicate that it was correct in so doing. See Kirkman v. Montgomery County Council, supra.

The substantial addition to the firehouse building subsequent to the adoption of the comprehensive zoning map with its new kitchen facilities and larger facilities for social functions is an additional factor the Board could properly consider in reaching its conclusion that there had been a change in the character of the neighborhood in question. Instead of a “small, old building” there is a larger modern structure which can be and is now used for “crab feasts, oyster roasts and other social functions.” Many of the objectionable features of the use of the newly constructed facilities at the firehouse did not exist when the comprehensive zoning map was adopted on November 15, 1962. The increased noise and traffic resulting from these new activities do indeed, in fact, change the “character of the neighborhood” and give that neighborhood a commercial, rather than a residential, character.

*570 In my opinion, a closer look at the testimony of William B. 'Guy, Jr., an expert who testified for the protestants, should be taken.

In the first place, Mr. Guy, who is a well qualified real estate expert, agreed with Mr. Klaus that the neighborhood (but not the particular block) had a “mixed character.” He stated: “There had, admittedly, been a number of changes in the neighborhood.” In essence, it was his opinion that the changes in the neighborhood justified a rezoning classification, from the existing R-6, but he was of the opinion that the rezoning should be R-A instead of B-L. He stated in his testimony:

“I think it would be very hard to make an argument against the rezoning of this to apartments, to R-A, in view of the fact apartments were constructed about a half a block away, and there was a change, and there have been other changes.

“Q. (Mr. Parker [a member of the Board]) On a tract this size, 2.32 acres, for apartments? A. I think it could be developed in apartments. I wouldn’t feel that it was bad zoning to put apartments here.

“Q. (Mr. Baldwin [a member of the Board]) Do you feel that the present R-6 zoning is incorrect? A. I don’t think it was incorrect when the map was produced, but the changes that liave been made in the neighborhood might make it incorrect now, yes. There have been some changes. I think the street itself is a change, admittedly, and the apartments, also, which have been cited previously.” (Emphasis supplied)

On cross-examination, he stated:

“Q. (Mr. Harrison) You felt it was enough change to make the present zoning incorrect, and the only question is whether it should be zoned B-L or should be zoned R-A, is that correct? A. Yes, sir.”

Secondly, Mr. Guy stated that in his opinion there was insufficient parking at the center of Woodlawn, stating:

'“I think it is self-evident the parking in the center of Woodlawn is not sufficient by modern standards.”

*571 Finally, a comparison of the photographs of October 1962, showing the rural, bucolic character of the subject property at Pierpont Lane at or about the time the comprehensive zoning map was adopted, with the photographs showing the same location today can hardly fail, in my opinion, to indicate clearly and conclusively that the present urban, high-speed character of the neighborhood represents a substantial change in the character of the neighborhood, justifying the rezoning of the subject property from the R-6 to the B-L zone.

The Board filed a comprehensive and well-considered opinion indicating that there had been sufficient evidence of a substantial change in the neighborhood and that the application for B-L rezoning should be granted. This decision was affirmed by the Circuit Court which also filed a comprehensive and well-considered opinion, reviewing our prior cases and holding that the question was at least “fairly debatable.” It properly, in my opinion, affirmed the decision of the Board. I would affirm.