# Pallace v. Inter City Land Co.

> Court of Appeals of Maryland · July 29, 1965 · 239 Md. 549

URL: https://www.frixlaw.com/law-library/cases/9765727

## Case

- **Full name:** PALLACE, Et Al. v. THE INTER CITY LAND COMPANY
- **Court:** Court of Appeals of Maryland
- **Decided:** July 29, 1965
- **Citations:** 239 Md. 549; 212 A.2d 262; 1965 Md. LEXIS 580
- **Precedential status:** Published
- **Opinion:** Concurrence by Barnes
- **Judges:** Horney, Marbury, Sybert, Oppenheimer, Barnes
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9765727

## Opinion text

Barnes, J.,
filed the following concurring opinion.
I concur in the result reached by the Court. It is, however, a reluctant concurrence as I would have granted the application of the property owner for the reclassification of Parcels A and B had I been acting as the Board. But judicial opinion in regard to the weight of the evidence cannot be substituted for that of the Board in this essentially legislative determination if there is sufficient credible evidence before the Board to make the issues of fact “fairly debatable.” If the issues are “fairly debatable” it cannot be held by the courts that the action of the Board is arbitrary, unreasonable or capricious. In my opinion this is the true test and not whether there has been a “mistake in original zoning” or “a substantial change in physical conditions in the neighborhood” as the exclusive test to determine the validity of the re-zoning of land by the Board or the refusal of the Board to rezone. I have heretofore rather fully given my views on the Maryland—“mistake-change in physical conditions”—Rule in my dissenting opinion in MacDonald v. County Board, 238 Md. 549, 576-601 , 210 A. 2d 325, 340-354 (1965), and I adhere to those views.
As is pointed out in the Court’s opinion, the Board might *560 lawfully have granted the requested reclassification and such action could not have been successfully challenged in the courts. The Board, however, declined to grant the requested reclassification and I cannot say from the evidence before it that a reasonable man could not have reached that conclusion even though, as I have indicated, I would have reached a different result. These facts have been set out in the Court’s opinion and need not be repeated here.
The question of whether the existing R-6 zoning is unconstitutiofial as applied to Parcel B is, in my opinion, a close one. In presenting this issue to the Circuit Court on appeal from the Board the property owner had the burden of showing by the evidence that the property owner of the land in question is deprived of all reasonable beneficial use of his property under the applicable existing zoning ordinance. In the case at bar, I think the applicant did establish from the evidence that Parcel B may not be used for the erection and sale of individual homes.
I do not agree with the implication in the Court’s opinion that an expert witness need necessarily give specific figures to show the costs involved, if he is qualified by his experience and background to testify to the ultimate conclusion of fact as was Mr. Klaus in this case. Specific figures may be sought by cross-examination if the expert’s conclusion is thought by the opposing party to be unsound, but in the absence of this, the conclusion of fact is prima facie correct. In Frankel v. City of Baltimore, 223 Md. 97 , 162 A. 2d 447 (1960), the expert witnesses for the property owner gave no specific cost figures in their testimony that under the applicable zoning regulations in that case the property owner would be deprived of all reasonable use of his property. One witness, an experienced real estate expert and developer testified that it would be “economic suicide” to attempt to build the permitted buildings. The trial court in Frankel , in affirming the Board, accepted the testimony of an expert witness for the City of Baltimore who did give estimated cost figures and who testified that it was economically feasible to erect individual dwellings. We reversed and held that the testimony of the experts for the property owner (who gave no ■specific cost figures) was confirmed by the uncontrovertible physical facts and held that the existing zoning regulations did *561 deprive the property owner of all reasonable use of his property and resulted in an unconstitutional taking of his property without just compensation. The lack of specific cost data may go to the weight of the expert’s testimony. But this is for the trier of facts to evaluate and Judge Menchine, in this case, apparently accepted and relied upon the testimony of Mr. Klaus. Pahl v. County Board of Appeals, 237 Md. 294 , and DePaul v. Board, 237 Md. 221 do not purport to overrule the Frankel case on this point and, in my opinion, the dicta in Pahl and DePaul referred to in the Court’s opinion in the case at bar, are consistent with the position that the lack of cost data goes to the weight the trier of fact will give testimony of the expert, rather than to its admissibility and prima facie correctness.
The burden, however, was upon the applicant to establish that Parcel B could not reasonably be used for any of the uses permitted in an R-6 zone. Among the permitted uses are semidetached houses. As the Court points out in its opinion, the testimony of both Mr. Hall and Mr. Evans was confined almost entirely to the erection of individual homes, and Mr. Hall indicated on cross-examination that consideration had not been given to the use of Parcel B for semi-detached houses. The substance of the testimony of Mr. Klaus was also directed principally at the economic feasibility of erecting individual homes. His attention was not directed to the possible erection of semidetached houses on Parcel B. In the light of this testimony and other testimony in the case, I concur in the Court’s opinion that the applicant did not meet the burden of showing that it is deprived by the existing R-6 zoning regulations of all reasonable beneficial use of Parcel B, and that an unconstitutional taking of its property without just compensation has occurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9765727. Public record. Not legal advice.