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Board of County Commissioners of v. Levitt & Sons Inc.

Decided: June 2, 1964.

BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY
v.
LEVITT & SONS, INC.



Appeal from the Circuit Court for Prince George's County (POWERS, J.).

The cause was argued before Henderson, Prescott, Horney and Sybert, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, specially assigned.

Prescott

PRESCOTT, J., delivered the opinion of the Court.

The appellee, Levitt & Sons, Inc., applied to the Board of

County Commissioners of Prince George's County, sitting as the District Council, for the reclassification of a small tract of land containing a little less than an acre, at the intersection of Belair Drive and Crain Highway from a R-R Zone (one-family detached residential) to a C-1 Zone (local commercial). In accordance with law (Section 78: [a] of Ch. 780, Act of 1959), the application was sent to the Maryland-National Capital Park & Planning Commission (Commission) for approval, disapproval, or suggestions. The Commission recommended that the application be denied. The Planning Board of Prince George's County recommended approval of the Commission's action. A hearing was held before the District Council on February 15, 1963, and, after said hearing, the Council denied the application. The appellee herein appealed to the Circuit Court, and the court reversed the action of the District Council. This appeal followed.

The appellant has posed several questions, but in the view we take of the case, it may be determined by answering the following one, which was the only one argued before, and decided by, the trial judge: Were the "administrative findings, inferences, conclusions, or decisions" of the District Council supported by "competent, material and substantial evidence in view of the entire record as submitted," and if so, were they "against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency?"

The appellant seeks to attack the constitutionality of Section 79 (i) (5) and (6); however, this question was not raised or argued in the court below, hence, for the purposes of this appeal, we must consider them as valid enactments of law. Maryland Rule 885; Gonzales v. Ghinger, 218 Md. 132. Cf. Kirby v. State, 222 Md. 421.

The appellee is a very large land developer. In 1959, it came to Maryland and purchased a tract of land containing over 2000 acres. Since that time, it has purchased a large additional acreage: some 800 acres. It has built many dwellings thereon, and also quite a number of business establishments on land rezoned for such purposes. The business establishments, for the main part, are centered in one location containing some 35 acres.

The subject property contains about 9/10 of an acre, and is

located at the intersection of Belair Drive and Crain Highway. Belair Drive is a thoroughfare leading to and from the subdivision built by appellee. Crain Highway at this point is a four lane dual highway, separated by a median strip, and is a main arterial highway from Baltimore City south. Apparently, Belair Drive does not continue on the other side of the Crain Highway from the subject property.

Application was made by the appellee for a C-1 reclassification with the idea of following this up by a request for a special exception to permit a gasoline filling station, as there are no provisions for special exceptions for this purpose under the existing classification. Of course if the C-1 reclassification be granted, appellee will be at liberty ...


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