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Jobar Corp. v. Rodgers Forge Community Association Inc.

Decided: July 24, 1964.

THE JOBAR CORPORATION ET AL.
v.
RODGERS FORGE COMMUNITY ASSOCIATION, INC. ET AL.



Appeal from the Circuit Court for Baltimore County (RAINE, J.).

The cause was argued before the entire Court.

Prescott

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

This is a zoning appeal. The Towson Building Company applied for a reclassification of a 6.14 acre tract of land on Stevenson Lane near York Road in the Towson area of Baltimore County, from R-6 (individual or semi-detached homes on lots not less than 10,000 square feet), as it had been zoned in the comprehensive zoning of 1955, to R-A (Residential Apartment). The Jobar Corporation, as contract purchaser, became an additional applicant.

On June 15, 1961, the County Board of Appeals (Board) denied the application, and the applicants appealed to the Circuit Court. On October 22, 1962, the court (Turnbull, J.) ordered the case remanded to the Board for additional testimony. Some protestants filed a motion to stick the remand;

after full hearing, Judge Turnbull denied the motion on March 6, 1963.

The Board pursuant to the order of remand, took additional testimony on July 25 and August 6, 1963, and granted the application on September 17, 1963. The protestants appealed; and the Circuit Court (Raine, J.), pursuant to an oral opinion delivered December 18, 1963, reversed the Board's decision and denied the application, stating "then everybody can see what the Court of Appeals will do with it." The applicants have appealed.

Appellants suggest there are four questions presented in the appeal, but in the view we take of the case, it may be determined by answering the following ones: (1) Was the remand to the Board of Appeals for the taking of additional evidence erroneous; and (2) Should the conclusions of the Board that the rezoning was justified by error in the original zoning and by changes in the character of the neighborhood, have been sustained by the court as at least fairly debatable?

I

We proceed to a determination of the first question before stating the facts, for if it be decided against the appellants, it will be unnecessary to state, or consider, the testimony taken at the second hearing before the Board.

Baltimore County is a chartered county. Appeals to the Circuit Court from the Board are therefore controlled by Section 604 of the Charter of Baltimore County, Section 501.4 of its Zoning Regulations, and Code (1957), Article 25A, Section 5 (U) (which are almost identical in terms relative to appeals), and not by Code (1957), Article 66B, Section 7 (n). Montgomery County v. Ertter, 233 Md. 414; Baltimore County v. Missouri Realty Inc., 219 Md. 155; Robertson v. County Board, 210 Md. 190. These sections, in pertinent part, provide that upon appeal the court shall "have the power to affirm the decision of the Board or, if such decision is not in accordance with law (italics ours), to modify or reverse such decision with or without remanding the case for rehearing as justice may require."

The order passed by Judge Turnbull, on October 228 1963,

was an ex parte one remanding the case to the Board for the purpose of taking additional testimony, and he stated the order was "in conformity with [Code (1957)] Art. 66B, Sec 7 (n) * * *." Appellees complain that the order should not have been passed without first affording the appellees an opportunity to be heard. And in this contention they are correct. However, the error became harmless, for some of the protestants filed a motion to strike out the order, and, after a hearing thereon, the court denied the motion, stating that he had carefully considered the record before doing so. The hearing on this motion presented the protestants with an opportunity to present to the court any reasons as to why the order should not have been passed, which they could have presented before it was signed.

The appellees also state that Judge Turnbull had no power to pass the order "in conformity with Art. 66B, Sec. 7 (n)," and again they are right. We pointed out above the true sources of authority on appeals to the Circuit Court of this nature. It, therefore, becomes our duty to determine whether the court had the right to remand under the actual sources of authority, for nearly every judge, on occasion, finds that he is right, but for the "wrong reason."

The question turns upon whether the first decision of the Board was "in accordance with law." Throughout the first hearing, applicants' witness Gavrelis attempted to discuss the proposed use (and its effect) of the some 60 acres of the Sheppard Pratt tract obtained by the Greater Baltimore Medical Center (Center), which the appellants proffiered to prove was a $10,000,000 project with architects' plans and construction drawings and preliminary engineering completed, the sponsors were completely ready for financing (with the exception of $750,000, which was expected to be obtained within two months), and the breaking of ground was imminent. Appellants also offered evidence of the "very well laid plans for the development of [the some 28 acres purchased by] * * * the St. Joseph's Hospital * * *." In addition, appellants offered to prove that the county officials had demanded before beginning construction on any apartments (and they had agreed to such demand) a 70 foot right of way over the subject property from Stevenson

Lane on the south to the proposed hospital developments on the north.

The Board refused to consider evidence relative to the above projects because "we have nothing before us to show the building is under construction," "the Board cannot consider what is going to happen on [the] Sheppard Pratt property," "maybe Sheppard Pratt has some plans laid out too, but we are not allowed to listen to them." The Board stated further that "any testimony with regards to projects in the future would have the same objection from counsel, and would be sustained by the Board on the same objection, that such things that are in the future cannot have a bearing on the property at the present time." In other words, the Board felt that it was limited to a consideration of evidence of the situation existent at the time of the hearing, and no potential, even though imminent, future changes in that situation or future needs of the public could be considered.

Our previous decisions do not sustain such a conclusion. Of course, the comprehensive zoning map of 1955 was entitled to a presumption of correctness, and the burden was upon the applicants for reclassification to show an error in the map or a change of conditions in the neighborhood, or both, if they were to be successful. But in order to show a change in conditions, as was stated by Chief Judge Brune in Rohde v. County Board, 234 Md. 259, when quoting from Trustees of McDonogh, etc. v. Baltimore County, 221 Md. 550, the Board was entitled to consider (and therefore the applicants for reclassification were entitled to present) projects that were "'reasonably probable of fruition in the foreseeable future.'" And the same rule applies, we think, when an applicant attempts to prove an error in original zoning. The Board, at its first hearing, was too restrictive in not permitting the applicants to produce evidence of the hospital projects which were reasonably probable of fruition in the foreseeable future; hence the Board's decision was not "in accordance with law," and the judge was warranted, under the provisions of law mentioned above, in remanding the case for the taking of additional testimony. (In making this ruling, we are not be understood as holding that the court, upon appeals, are required to review in detail and pass upon the technical

admissibility of all the evidence offered before the Board. The instant case is unusual in that the Board refused to admit, or consider, the crucial matters upon which applicants' cause depended.)

The appellees contend that Robertson v. Board of Appeals, 210 Md. 190, is controlling, and that Judge Turnbull had no authority to remand the case for further testimony. That case and the instant one are different. In Robertson, Judge Hammond, for the Court, specifically stated that Judge Woodward had exceeded his power in two ways: "first, he remanded the case without finding an error of law, and second, he substituted his judgment on the facts for that of the Board." In the instant case, the trial judge did not substitute his judgment for that of the Board on the facts, and he was correct, as we stated above, in finding an error of law.

We now state the facts. The property here in question is a heavily wooded triangular parcel, located on the north side of Stevenson Lane, approximately 1000 feet west of York Road. It fronts 700 feet on Stevenson Lane (which runs east and west), and the western boundary of the property, which with Stevenson Lane forms the right angle of the triangle, extends north approximately 560 feet. The rear of the property closes the triangle from the northwesternmost to the southeasternmost point of the property.

There is a small, high, level area consisting of somewhat less than one-third of the tract at the southwest corner, from which plateau the land slopes very sharply, sometime exceeding 15 per cent to the northern and eastern borders.

Immediately to the west of the property is a 16 foot alley across from which, at approximately the same grade as the plateau on the subject property, is built Section 11 of the Rodgers Forge development. This section of Rodgers Forge is "one long area of group homes, divided into three groups of some 20 homes each," the backs of which face the subject property.

Directly adjoining the subject property on the north is a 400 acre tract known as the Sheppard Pratt property. This tract is now the subject of extensive hospital development. In addition to the Sheppard Pratt hospital itself, which has existed for some time, approximately 60 acres of the tract were

sold in 1960 to the Greater Baltimore Medical Center, a ten million dollar project formed by the merger of the Hospital for the Women of Maryland and Presbyterian Eye, Ear and Throat Charity Hospital.

Abutting the subject property on the south is Stevenson Lane. In 1955 this was a small twelve to fifteen foot road; in part a private drive. It was not connected to York Road on the east or Bellona Avenue on the west, and in fact, existed only in front of the row houses westerly from the subject property. It was not built in front of the subject property until 1957-58; and in 1955, when the zoning map was adopted, in had not been settled whether Stevenson Lane would ever be extended to connect with York Road and Bellona Avenue.

At present, however, Stevenson Lane is a fully paved forty-two to forty-four foot bituminous concrete road with a seventy to eighty foot right-of-way. It allows fourteen feet for traffic in each direction while cars are parked on both sides. It now extends from York Road, with its public transit facilities, on the east to Bellona Avenue and Charles Street on the west. As a result of the eidening and extension, which occurred in 1961 and 1962, Stevenson Lane is now a major traffic artery known as a "connector" or "collector" or "main feeder" road between York Road and Charles Street and Bellona Avenue. Stevenson Lane funnels traffic between these two major north-south arteries away from the interior streets of residential developments, and is "a major connection between the center of Towson and Charles Street arterial traffic."

Opposite the west end of the subject property on the south side of Stevenson Lane are some row houses and two school sites, one elementary and one junior high. To the west about 1200 feet from the subject property are the Rodgers Forge apartments, built before the comprehensive zoning of 1955.

Across Stevenson Lane and opposite the east side of the subject property and lower than the plateau on the side of Stevenson Lane abutting the subject property are five single-family homes, built before any of the group homes in the neighborhood. These homes, a part of the Rodgers Forge development built before Stevenson Lane was developed, were constructed as part of an agreement entered into by James Keelty, the developer

of Rodgers Forge, in consideration of the withdrawal of objections by persons in the area to the extension of a commercial use of property at Old Trail Road in which Keelty was interested. This fringe of individual homes is one house deep, and several rows of group homes are built immediately behind (sough of) these cottages, so that the single line of cottages "strips out" the group home development on the south side of Stevenson Lane, which is part of the overall group home and apartment development of Rodgers Forge. Beyond the eastern end of the subject property on the south side of Stevenson Lane are two additional cottages filling out the strip of single family homes.

To the east of the subject property on the north side of Stevenson Lane is a "finger" of Sheppard Pratt land; there is a sharp slope to a stream which is channeled into a 48 inch storm water pipe. Both the east and west sides of the stream are heavily wooded with willow trees, and the stream lies in a deep valley between the slope downward from the subject property and a hill on the east side going back up to high ground. On this ground to the east of the subject property are: the Sheppard Pratt land, the two heavily wooded hills, a driveway to a farm house on the Sheppard Pratt property, the stream and "severe drainage course," and after these barriers an older individual residence development known as Yorktowne. The land separating the subject property from Yorktowne has a minimum width of 105 feet and a maximum of 200 feet. The Yorktowne houses are built with their backs to the stream between Yorktowne and the subject property; and the Yorktowne house fronts all face a circular drive known as Yorktowne Road. Further east to York Road, which is a short distance away, are more single family homes.

The northwest corner of Stevenson Lane and York Road is used in an M-R (Manufacturing-Restricted category); and across the street is a gas station, which was rezoned by petition in 1950.

Two land use planners, both called by appellants, testified before the Board of Appeals as to the issues of original error and change of conditions. George E. Gavrelis, Deputy Director

of Planning in Baltimore County, who testified at the first hearing before the Board, said in direct examination that in his opinion R-A zoning was proper zoning for the subject property. On cross-examination he testified that R-6 zoning was not an error in 1955, although it was "suspect" and "maybe" erroneous even then, especially in the light of hindsight. Bernard Willemain testified for appellants before the Board at the second hearing. He had spent five years as the Deputy Director of the Baltimore County Planning Commission and was the draftsman of the Baltimore County Code. He testified that "it is my considered opinion that the map adopted November 14, 1955, zoning the subject property R-6 was in error in regard to that classification."

He gave as some of his reasons:

(1) The subject property is in the most concentrated development in the Towson area. There was, in 1955, no tract of six or more acres still vacant within at least a two mile radius, except the subject property and the Sheppard Pratt complex. The County Commissioners erred in failing to take into account the need for additional apartments in this area and to make available for such use the suitable tracts, which were limited to the subject property and the Sheppard Pratt complex.

(2) The Baltimore County zoning authorities failed to give proper consideration to the potential of the Sheppard Pratt property, which was bound to be developed much more intensively than R-20, which it was zoned in 1955, and to give proper weight to the fact that the subject property is more closely oriented to the Sheppard Pratt property than to any other land in the area.

The County Planning Commission in 1955 took into account both the need for apartments in the area and the inevitable intensive development of Sheppard Pratt by recommending R-A zoning for a portion of the Sheppard Pratt tract; and the R-6 zoning for the subject property was recommended on the basis that the Sheppard Pratt zoning adequately met the need for apartments. However, the County Commissioners, without any studies as to the need for apartments in the area and without any ...


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