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Rohde v. County Board of Appeals for Baltimore County and Ortel Realty Inc.

Decided: April 3, 1964.

ROHDE, ET AL.
v.
COUNTY BOARD OF APPEALS FOR BALTIMORE COUNTY AND ORTEL REALTY, INC.



Appeal from the Circuit Court for Baltimore County; Turnbull, J.

Brune, C. J., and Henderson, Prescott, Horney and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.

Brune

Neighboring property owners appeal from an order of the Circuit Court for Baltimore County affirming the action of the County Board of Appeals (the Board) in reclassifying a tract of approximately 37 acres of undeveloped land from R-6 (residence, one or two family) to R-A (residence, apartment) and in granting a special exception permitting two high rise, or elevator, apartment buildings. One of the appellees is the Board; the other is the applicant for the rezoning and special exception, Ortel Realty, Inc. (Ortel). The Zoning Commissioner denied both applications; the Board, by a 2-1 vote, granted both, with conditions attached to the special exception.

The property in question is very near the intersection of two major roads a little north of the Baltimore City line. These roads are Loch Raven Boulevard, running north and south, and Taylor Avenue, running east and west. This tract is near that involved in Renz v. Bonfield Holding Co., 223 Md. 34, 158 A.2d 611, but lies on the other side of Loch Raven Boulevard and a little to the north of the Bonfield property. The intersection is heavily commercialized on all four corners, the total area so used being about 70 acres. The Ortel tract consists of slightly less than 37 acres, is wholly undeveloped, and lies to the south

of Taylor Avenue and west of Loch Raven Boulevard. It does not actually abut the commercial property at the southwest corner of the intersection, and is presently surrounded by property zoned R-6, R-10 or R-20, each of the last two being a one family, residential classification. To the west of the Ortel land lies a part of the golf course of the Maryland Country Club. There are several residential developments in the immediate vicinity, and present access to the Ortel tract is through the Glendale-Glenmont developments. The present zoning was effected in 1955, when a comprehensive map for the 9th District was adopted.

There is a proposal, which has been pending for some time, to extend a substantial highway known as Goucher Boulevard so as to run southeast from Taylor Avenue and connect with Loch Raven Boulevard. As planned, it would pass close to the northeast side of the Ortel land, but would not actually touch that tract. A small strip of land, now zoned R-6 would be left between, but would be useless for development purposes. The testimony indicates that the full, proposed apartment use, involving 832 dwelling units, would generate considerable additional traffic for which existing roads would probably not be adequate. The present R-6 zoning would permit 204 residence units, reclassification to R-A would allow 592 units, and the special exception would add 240 more. The opinion of the majority of the Board states that the special exception is granted subject to three conditions: (1) that "[n]o construction work on the property shall begin until the completion of the extension of Goucher Boulevard from Taylor Avenue * * * to * * * Loch Raven Boulevard * * *;" (2) approval of all site plans by the County Office of Planning and Zoning; and (3) "[e]gress and ingress from the subject property must be approved by the proper State and County authorities." The order implementing the opinion refers to the opinion and states that the "reclassification and special exception petitioned for, be and the same is [sic] hereby granted subject to the aforementioned restrictions." Despite some possible ambiguity in the order, it is not directly attacked as being conditioned with regard to the reclassification from one zone to another upon Goucher Boulevard being extended or upon either of the other conditions.

Among the grounds of attack are, however, uncertainty as to whether Goucher Boulevard will be extended and as to whether, even if it is, the Ortel tract will have access to it; and the appellants urge strongly that there is no showing that without the extension of Goucher Boulevard and without direct access to it, serious traffic difficulties and hazards will not develop from R-A development of 592 new units, even without the additional 240 to be contained in the high rise apartments to be built under the special exception.

There was testimony that the State Roads Commission was willing to build the proposed extension of Goucher Boulevard, if duly requested by the County to do so, and that the County would make such a formal request in writing. Though there was some question as to just how soon the Commission could or would act, we think that the evidence was sufficient to show that this extension was "reasonably probable of fruition in the foreseeable future." The Board was, accordingly entitled to consider it in determining the proper classification of the subject property. Trustees of McDonogh Educational Fund and Institute v. Baltimore County, 221 Md. 550, 570-71, 158 A.2d 637.

It is obvious to us, and it must have been equally obvious to the Board, that the extension of Goucher Boulevard would do nothing to alleviate any traffic problems growing out of the use of the Ortel tract for apartments, unless some means of ingress and egress between that tract and the extended highway were provided. We infer that it was in the expectation that when the extension should be made such access would be provided, that the Board granted the reclassification. We cannot say on the record before us, where the protestants show only uncertainty as to this matter, that the Board was unreasonable or arbitrary in holding such a view; and we think that it might take this prospect into consideration in deciding the question of reclassification. Also, although R-A development of the tract, even without the special exception would undoubtedly produce a greater volume of traffic than would R-6 development, we do not think that the evidence establishes that traffic congestion would necessarily result from R-A reclassification alone; Vestry of St. Mark's Church v. Doub, 219 Md. 387, 395, 149 A.2d 779; Southland Hills Improvement Assn. v. Raine, 220 Md. 213, 218,

151 A.2d 734; Bonhage v. Cruse, 233 Md. 10, 15, 194 A.2d 803. See also Missouri Realty Inc. v. Ramer, 216 Md. 442, 450-51, 140 A.2d 655, which emphasizes the importance of the finding of the Board with regard to traffic ...


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