Appeal from the Circuit Court for Baltimore County (TURNBULL, J.).
The cause was argued before Brune, C.J., and Hammond, Horney, Marbury and Sybert, JJ.
HAMMOND, J., delivered the opinion of the Court.
The Zoning Commissioner of Baltimore County refused to reclassify some twenty-one acres of land east of Stevenson Road between the Beltway on the south and Keyser Road on the north from R. 40 to R. 20.*fn1 The Board of Appeals, only two members sitting, granted the reclassification and the Circuit Court affirmed. The protesting neighbors appealed to this Court.
When the area underwent a comprehensive rezoning in 1957, the tract in question was part of a larger holding of some ninety acres. The western boundary line of the larger tract was made a dividing line between R. 40 zoning and R. 20 zoning; almost all, if not all, of the land between that boundary line and Stevenson Road to the west was put in the R. 20 classification and almost all, if not all, of the land to the east of that boundary line to Greenspring Avenue was zoned R. 40. The owner of the ninety acres sold it after the comprehensive rezoning to a developer who built houses on lots of at least forty thousand square feet, as required by the R. 40 zoning, to the north, east and south of the tract here involved. The developer platted the twenty-one acres into nine lots, each containing forty thousand square feet, or more, and reproduced the plat in a sales brochure used to sell lots under the legend "one acre homesites." None of the nine lots was sold or built on by the developer.
The original owner found it necessary to foreclose a purchase money mortgage which the developer had given and reacquired the twenty-one acres here in question at the foreclosure sale. It has been unsuccessful in selling the land again and, believing it could sell it to the owner of the land to the west for development
in half-acre lots, sought to have it reclassified to an R. 20 zone.
In its application to the Zoning Commissioner, the owner justified the rezoning sought on the ground that "access from the subject property is through R. 20 land due to the construction of the Baltimore Beltway which beltway serves as a logical barrier between R. 20 land and R. 40 land * * *." The Zoning Commissioner's denial of reclassification was because, in his opinion, "the petitioner's land rightfully belongs in the 'R. 40' Zone. The area in question is a very definite part of the existing 'R. 40' development. * * * The original map is not in error."
On appeal to the Board, the change from R. 40 to R. 20 was sought to be justified on the ground that the 1957 map was in error.
The testimony that there had been error in zoning the twenty-one acres R. 40 in the 1957 comprehensive rezoning came from the Deputy Director of Planning of Baltimore County. His opinion, however, was entitled to no more force and effect than the reasons he said underlay it. On direct examination he testified only that because there was no access by road to the property except through a development of R. 20 houses and because a difference in topography and a drainage course separate the property from the large R. 40 area to the east, it was error in 1957 to have zoned the tract other than R.20. On cross-examination, he said that in 1957 the Panning Board had thought the property line to be an appropriate division between the R. 20 zoning to the west and the R. 40 zoning to the east, but that the manner in which street and lot patterns had been worked out in actuality "now leaves the subject property, related more specifically to the area that is zoned R. 20 than it is to the area that is zoned R. 40." The witness admitted frankly that the land could be developed for either R. 20 use or R. 40 use (as was contemplated when it was zoned), as well as that "it is a fairly normal thing to go [speaking of access] from smaller lots to larger lots," that this type of access is quite frequent, and that this situation would not of itself create an error in the map.
The Board of Appeals in its opinion said the ...