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Didlake v. Poteet

Decided: May 11, 1962.

DIDLAKE ET UX.
v.
POTEET ET AL.



Appeal from the Circuit Court for Anne Arundel County; Duckett, J.

Henderson, Hammond, Prescott, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.

Marbury

This appeal is taken by Clyde B. Didlake and Irene E. Didlake, his wife, from a decree of the Circuit Court for Anne Arundel County, dated November 3, 1961, which declared unconstitutional, illegal and void a resolution which had been passed by the Board of County Commissioners of Anne Arundel County, on March 30, 1961, approving an extension of zoning from Cottage-type Residential to Heavy Commercial of 0.38 acres more or less, owned in fee simple by the appellants, fronting 117 feet on the easterly side of Langley Road, 300 feet southwest of the intersection of Furnace Branch Road and Langley Road, in the 5th Election District of the County, and known as parts of Lots Nos. 3 and 4, on a plat of Acreslee. The appellants, in addition to owning all of Lots Nos. 3 and 4, also own Lot No. 2, adjoining Lot No. 3, and a corner lot adjoining Lot No. 2 which extends to the southeast corner of Langley Road and Furnace Branch Road.

Pursuant to Code (1957), Article 66B, the Board of County Commissioners of Anne Arundel County, on July 1, 1952, established a comprehensive zoning plan for Anne Arundel County that defined a heavy commercial zoning classification extending along both sides of Furnace Branch Road in a southeasterly direction from Ritchie Highway to Margate Road, to a depth of 300 feet on each side of the road, and which line of demarcation runs diagonally across Lots Nos. 3 and 4 of the appellants, placing all of their contiguous property in a heavy commercial zone with the exception of portions of Lots Nos. 3 and 4 which were still zoned Cottage Residential. The surrounding properties were zoned Agricultural or Residential.

The appellants have conducted a public bus service business,

which is primarily for the purpose of supplying school buses to the Board of Education for the county, on that portion of the property located in the heavy commercial zone. Alleging changes in the neighborhood, increased population, and requests from the Board of Education to supply additional school buses, appellants filed a petition to extend the zoning of their property to cover the remaining portions of Lots Nos. 3 and 4 under a heavy commercial type zoning, so that the additional space, necessitated by such increases, could be used in connection with the bus business for the parking of the additional buses needed to comply with the increased demand.

The Planning and Zoning Commission of Anne Arundel County, on July 7, 1960, recommended to the Board of County Commissioners that the Didlakes' petition for rezoning be disapproved. A public hearing was held by the Board of County Commissioners on August 11, 1960, at which the appellants and protestants presented testimony. There was no attempt to show any mistake as to the zoning of the property involved at the time of the adoption of the comprehensive zoning plan in 1952. The only evidence produced by the Didlakes in support of their claim of changes in the neighborhood was to the effect that the population in the general area of this portion of the county had greatly increased. When asked at the hearing why he needed this additional rezoning, Mr. Didlake answered:

"Additional bus parking, population increasing, and it is necessary to the general public.

Q. Then you want this property zoned because your business got too big for the land you own?

A. Yes. The people got too many children."

On behalf of the protestants Mr. Von Schwerdtner, Planning Administrator of the Planning and Zoning Commission of Anne Arundel ...


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