*1
Court of Dec. 1995. 30, 1996. Denied Jan.
Reconsideration *6 (Carole Demilio, brief), Peter Max Zimmerman S. on the Towson, for appellant, People’s Counsel. (DiNenna Breschi, and on the Borgerding,
Francis X. Jr. brief), Towson, appellants, for Weber and Dembow. P.A., (Romadka, McLaughlin,
John B. Gontrum Gontrum & brief), Paltimore, appellee. on the CATHELL, MOYLAN, Argued before WENNER and JJ. MOYLAN, Judge. County
The for Baltimore appellants, People’s Counsel in neighbors property question, initially appeal- various of ed to the Circuit Court for Baltimore decision a grant Zoning to a Petition for Appeals by appellee, Reclassification that had been submitted (Beachwood). Beachwood I Limited In the cir- Partnership court, Turnbull, II affirmed the Judge cuit John Grason decision of the of This followed. Appeals. appeal has effect, in questions The three for resolu- appellants present, tion:
1) support finding to Was there substantial evidence a Appeals the Board of Council had made in comprehensive zoning mistake its earlier decision? 2) Did the Board of fail to make the specific findings necessary justify to its decision?
3) Did Appeals participate impermissible the Board zoning” Maryland “contract contravention of both the County regulations? case law and Baltimore which 144.9 property, The 148-acre acres were the sub- ject petition, the reclassification is located the North County along Point area of southeastern Baltimore the Back River, Bay. The is tributary Chesapeake property (a road) by county bound to the west Morse Lane and to the (or “Shore”) by north and east a small road called Todds Point nearby The via a intersection property Road. reached Boulevard, large Morse Lane and North Point state between lies six lanes. The intersection four and road with between property. south of the just to the History Zoning the Tract (Manufac- zoned M.H.-I.H. 1984, the was property Prior to intense the most Heavy—Industrial, Heavy), turing, owned County. in Baltimore The classification In Corporation. 1970’s the Bethlehem Steel through the develop 1980’s, owners made efforts early subsequent naught. the efforts came industrially, but the tract area is, measure, undeveloped an isolated major tract development over the industrial has been passed *7 Point Boulevard. Point and North Sparrows process, zoning quadrennial comprehensive part As of its zoning changed Council 1984 Baltimore 5.5, a to D.R. M.H.-I.H. of the from property classification at a development allows for residential classification As per part acre. dwelling 5.5 units density upof to zoning, subsequent comprehensive 1988 of D.R. 5.5. zoning classification continued Program Areas went 1988, Bay Critical Chesapeake In it as was near subject located property, and the into effect area.” development “limited river, designated a tributary was area, permitted residential development In limited such a up high 1 to a per low unit 5 acres from a density ranges zoning D.R. 5.5 existing The then 4 units acre. per area. development a limited allowed in than what was denser Zoning Comprehensive of 1992 1992, the zoning comprehensive part As subject on the changed the County Council Baltimore lowering thereby D.R. D.R. 5.5 to from property a As per unit acre. dwelling to 1 density residential permitted of a charter branch legislative decision made policy justifi no further requires county, v. Trainer correct. it. It is presumptively support cation Stratakis (1973); 672-73, A.2d 471 309 Md. Lipchin, 643, 652-53, Beauchamp, Md. 304 A.2d To place the remaining context, however, discussion in some we shall note least several criticisms that could arguably be made of that 1992 legislation, just as we shall also note several arguments that could be made support it.
Two neighboring communities, Point, Edgemere and Todd’s are both zoned D.R. 5.5. Land immediately the west of the subject zoned for manufacturing industrial purposes. The nearest significant D.R. 1 zone in Baltimore County is located some five miles away. hand,
On the other the community Edgemere is separat- ed from the subject water, property by body of Greenhill Cove; Point, the small community moreover, of Todd’s was in existence before either or the Critical Area law came to Baltimore County. significance It is also of density that a of 1 falls, unit per acre in terms of the Chesapeake Bay Critical Area requirements, halfway about between the lowest permit- ted density of one unit per 5 acres and highest permitted density of 4 per units acre. It may also be noted that other undeveloped along areas the shoreline of Back River are one instance zoned 1D.R. and in subject other instances more restrictive zoning of R.C. a Resource Conservation Zone, permitting only unit dwelling per 20 acres. *8 event,
In any the County Council’s comprehensive zoning of 1992 was is, presumptively therefore, correct and it the status quo ante from which we in proceed assessing the propriety any changes made therefrom. County
The Appeals The zoning subject of the parcel as D.R. 1 promulgated was by the County Baltimore part Council as the Comprehensive Zoning Map 15, it adopted on October later, 1992. Four-and-a-half months 1,1993, on March Beach- wood petitioned the County of Appeals to reclassify the property from D.R. 1 to D.R. 3.5. It assigned as its reason for the reclassification alleged the error by County the in the Comprehensive Zoning Map process of 1992. The thrust out of “zoning the 1992 is was that allegation
of the of error It surrounding area.” was the character with on the hardship an economic that it would be alleged further confiscation, required to be effectively amounting developer, density: at so low a level residential develop property the construction a require the site will developed To be impractical facilities are pumping station. Such sewage in a D.R. dwelling acre as limited per of one density making has the effect practical zone. The zone commercially undevelopable. property on the testimony heard two days The Board of reclassification, 2 and November on November proposed 2-to-l, Board, by a vote of January 1993. On property and reclassified the petition Beachwood’s granted of fact that found as matter majority opinion D.R. The 3.5. property error it zoned the when Council was 1: D.R. and considered the carefully has reviewed
The Board and testimony proceedings, in these presented evidence and, Petitioner presented by the testimony that the finds Mr. Crozier with testimony given by expert particularly, reasons, finding supports supporting his of fact erroneously zoned subject property Council, for the logical is no reason that there D.R. 1. We find that from D.R. 5.5 to to be down-zoned its case indicate by the Petitioner presented facts error, Board will and the is in D.R. fact D.R. from requested reclassification find that therefore (Empha- be and will so order. granted 1 to D.R. 3.5 should supplied.) sis no had “error” been concluded dissenting opinion Council, art as that term of
committed law: defined on this site zoning placed the D.R. 1
I no doubt that have Planning Board result- following the recommendation *9 not as a action of the Council intentional ed from the mistake, of an error as nor as result any result
637 body Maryland same is defined of case law that interpreting zoning concept. the D.R. 1 dissenting member concluded that
zoning classification the contemplative process from and deliberative
resulted] Council, error, County and not from any mistake fact particularly light that the D.R.
permits a reasonable use of land and devel- residential opment. Counsel,
People’s along protesting neighbors, appealed Court for County. reclassification Circuit Baltimore 1994, 12, On October Court Circuit ruled that issue of whether the Council had made an error or mistake in It, the 1992 comprehensive zoning fairly debatable. therefore, affirmed the reclassification order of the Board of Appeals.
Deferential Review: To Whom Is Due the Deference?
Ordinarily, when
judicial
government
branch of
is called on to review a
decision made
an administrative
agency,
Courts,
levels,
the watchword is deference.
at all
are
enjoined not to substitute
judgment
their
for that of the
government
coordinate branch of
to
judgment
whom such
has
been, in our
scheme
divided government, primarily entrust
Inns,
ed.
Counsel,
Red
219,
Inc. v. People’s
Md.App.
Roof
224,
(1993).
strive, rather,
A.2d 1281
Courts must
to
uphold the
decision
administrative
if
agency,
there is
any evidence which can be
to
said
have made the issue for
decision by
Stone,
agency fairly
debatable. Eger v.
533,
(1969).
Md.
In
less
routine institutional
configuration
this
case, however, the deference
due is exponential. Both
the trial court and this
determine,
Court are called upon deferentially,
albeit
whether
the Baltimore
was,
turn,
in its
appropriately deferential
*10
not
may
of Appeals
The Board
County Council.
Baltimore
Council,
if
even
County
for that of the
judgment
its
substitute
diametrically
have made a
it,
might
so empowered,
had it been
may
which it
circumstances under
decision. The
different
are
County
Council
or countermand
decision
overturn
second-guess.
simply
It
never
may
constrained.
narrowly
all,
County
including the
The
that is due
deference
is
County
Council
to the decisions
Appeals,
Board of
we
homage
pay
the Jeffersonian
explained
part by
its
Within
generally.
of
legislative
government
branch
County
sphere,
the Baltimore
governmental
appropriate
County.
of
for the citizens Baltimore
legislature
is the
3;
Maryland
XI-A,
Part
§
Art.
Ritchmount
Constitution,
48, 62-63, 388 A.2d
283 Md.
Supervisors,
v. Board
nership
of
(1978) (“The
opening
of
in the
sen
language
effect
repository
council the ultimate
of
3 is to render the
tence
Sect.
it
county.”) When
possessed by the
legislative power
of all
func
undertakes,
its
every
years,
four
v. Mont
people. Hyson
voice of the
tion, it
with the
speaks
55, 63,
As with
Even in the face however, delegated Council, powers are certain there to effect reclassifica- Appeals to the The particular pieces property. respect tions with 2-356(a)(l) (1978), § provides, Code Baltimore part: pertinent change to make a power shall have the appeals
The board division, particular within which a district, or zone as reclassification) (zoning classified piece provided. hereinafter 2—3-560') imposes then limits on that power.
Section if it find at may reclassify only is able to least of two satisfied. possible preconditions one Subsection (j) provides, pertinent part: section, any property
Before is reclassified to this pursuant the board of must find: appeals
(1) change That ... has substantial there occurred a in which neighborhood character the property *11 property is located since the was last classified or that the last the was in established classification of (Emphasis supplied.) error.
It is the second of
two
in
preconditions
the
is involved
this
The petition
case.
for the reclassification came a scant 4/6
adoption
months after the
of the 1992 Comprehensive Zoning
it is
Map, and
clear that no
in
change
substantial
occurred
the
of
character
the neighborhood
those four months.
during
Indeed,
allegation
Beachwood made no
of
change.
substantial
See, moreover,
County
2-356(k).
(1978),
§
Baltimore
Code
The only question is whether the
Council
County
was
of
guilty
a
mistake
error in the course of its 1992 comprehensive
zoning. The
precisely
posed
issue is
as
it in Boyce
we
v.
(1975):
Sembly,
25 Md.App.
The Validity of it reclassification, When undertakes to grant a of Appeals does not enjoy luxury writing of on a believe, clean For slate. it to a judgment as value or as a policy determination, that the County Council decision under wrong review was is not to ipso wrongful believe that the facto decision a necessarily “mistake” or was based on an “error.”
The regard deference this due of decision County by Board of Appeals Council was well expressed Appeals the Court in Stratakis Beauchamp, 268 Md. case, here, In that as the Baltimore 304 A.2d reclassification issued a Appeals Board of here, There, as petition.
pursuant to a reclassification a four months after was filed bare petition reclassification compre- promulgated quadrennial Council had its There, here, comprehensive rezoning as rezoning. hensive There, of land. density parcel permitted had lowered here, merely Appeals the reclassification as its density closely approaching to a more returned here, ruled Appeals, The Board of original classification. of a or error guilty had been mistake “down-zoning” property. Court its of a on the not sufficient evidence mistake held that there was fairly made that issue County Council to have part the stern standard review: Judge Levine set out debatable. enunciate While, years, we have had occasion to recent important principles the law applicable a number of rudimentary strong than the none moré zoning, perhaps zoning and of original the correctness of presumption change rezoning. piecemeal To sustain here, strong evidence present such as those circumstances *12 rezoning zoning comprehensive in or original of mistake change in the character or evidence of substantial Since, as we have also produced---- must be neighborhood said, onerous, confronting appel- ... the task burden is this rezon- comprehensive followed the lants, whose application months, is a difficult one. merely manifestly four ing by in 652-53, (Emphasis original) A.2d 244. 304 268 Md. omitted). 667, Lipchin, See also Trainer v. (Citations 269 Md. v. Pattey (1973); 471 672-73, 309 A.2d of (1974). Commissioners, 352, 359, 142 271 317 A.2d Md. validity of strong of presumption articulation Another Pier v. Wells is found in zoning attaching comprehensive (1969). a case 554, A.2d That also was Md. 253 749 pont, 253 a Board of issued Appeals in the Baltimore which changing what the Baltimore reclassification zoning Zon Comprehensive in its adopting done had earlier case, Board of found evidence Appeals In that ing Map.
641 change three-year period of a substantial in intervening judge the circuit affirmed that reclassification Appeals. The Court of reversed circuit court, cast one holding heavy upon seeking burden a zoning Judge reclassification had not satisfied. been McWil- liams there described the of weight presumption validity attending rezoning: comprehensive
It
firmly
strong
is now
that there is a
pre-
established
sumption of the
and of
original zoning
correctness of
com-
prehensive rezoning, and that to sustain a piecemeal change
therefrom there must be
produced strong evidence mis-
original
take
comprehensive rezoning
or
or
else
change
evidence
substantial
the character of the
And,
neighborhood....
course,
proof
the burden of
facing
seeking
quite
one
a
reclassification
onerous.
(Citations omitted).
557,
County,
(1970);
Md.
A.2d
v.
Creswell Balti
Aviation,
(1970).
more
Md.
What “Mistake” An “Error”? As as the helpful case law was describing otherwise 1) the strong presumption validity attending comprehensive 2) rezoning county council and the “onerous” burden on a landowner to an show error or mistake it zoning, only with a series three opinions Davidson, by Judge Rita two for this Court and one for the Appeals, Court of at last firm got we handle on precisely what was meant terms by the of art “mistake” and “error.” In first place, “mistake” and are “error” “inter changeable in zoning [as] terms used law.” Boyce Sembly, *13 43, 44, 25 334 Md.App. A.2d 137 “Change Inapplicable
1. Comprehen- or Mistake” Rule Rezoning:
sive Judge It Davidson’s opinion Coppolino County (1974) 358, 23 328 Appeals, Md.App. A.2d 55 that is of 642 decision, in a series of which pinpointing
particularly helpful decisions, enjoys strong presumption flip-flopping possibly of decision subsequent validity and is due the deference of found. the mistake must be place That is the where makers. case, had in this owner property In as Coppolino, zoning comprehensive under an earlier a classification enjoyed development a more intense permitted have that would here, There, subsequent comprehensive a as property. 1971 compre- In property. Coppolino, “downzoned” C, had to D.R. 5.5 Parcel which zoning downzoned hensive comprehensive under the 1966 a D.R. 16 classification enjoyed case, zoning down- comprehensive In this the 1992 zoning. enjoyed had a which property, 1 Beachwood’s zoned to D.R. of comprehensive zonings under the D.R. 5.5 classification moreover, downsizing 1971 In Coppolino, 1988 and 1984. from the only departure not County Council was by the contrary to but was also comprehensive zoning, earlier 1967 Planning and the Planning Staff of the recommendations [downzoning] for ac- Moreover, reason these Board. “[t]he at Md.App. in the record.” appear not [did] tions here, There, County Board the Baltimore A.2d 55. vote, ruled that the two-to-one by similar Appeals, a mistake had flawed been comprehensive Council’s error. mis purported the nature of the what, precisely, But to have believed error the Board take or which comprehensive zoning? County Council’s infected the fatally “comprehensive the earlier that argued The owners correct,” Md.App. to be presumed 1966 [was] comprehensive there was error and “that A.2d validity of the failing presumptive honor zoning” zoning: earlier zoning existing that the then maintain
The owners altered not be subject properly could D.R.-16 error in the was evidence unless there in the character assigned change in 1966 or classification assignment subsequent neighborhood classification.
643 In support position this the owners out that point (1972 Baltimore County §§ Code 22-20 and Cum.Supp.) 22.22.1 require comprehensive now rezoning entire take in county place every at least once four years. They argue that use of frequent comprehensive rezoning technique, rule, “change absent or mistake” permit arbitrary will capricious part action on the Council, which will permanence undermine the and stability of zoning classifications intended to be protected by the presumption validity accorded comprehensive rezoning. (Footnote 368-69, omitted) (Em- 23 55. Md.App. at 328 A.2d phasis supplied).
In just fashion, such a in present case seemed to the County cast on Council a burden to justify its 1992 why departed had zoning from presumptively its 1988 comprehensive correct zoning:
Originally property was zoned Manufacturing Heavy (M.H.). In 1984 the property was rezoned from M.H. to 5.5, D.R. and the D.R. 5.5 the 1988 reaffirmed map process. find, Board can from testimony received, evidence specific no reason down-zoning. this for logical [TJhere is no reason to be property down- zoned from D.R. 5.5 to (Emphasis D.R. 1. supplied.) court, well, The circuit seemed cast a burden on the County Council to justify departure its 1992 its earlier from comprehensive zoning:
It is inconceivable to this Court that the Council could downgrade property this 1 to D.R. when that would be completely incompatible surrounding this area. This Court questions why this was ever changed from D.R. 5.5 ... (Emphasis supplied.) however, Coppolino, rejected which, such an approach, effect, would have allocated to the County burden justifying change it any pre-1992 made 1992 from the quo. status Coppolino pointed out that the of Appeals “Court and this consistently Court have held ‘change
644 comprehen controlling involving in cases rule is not mistake’ A.2d 55. See also 328 rezoning.” Md.App. sive (1968); Coleman, 6, 12, A.2d 223 Trustees 251 Md. Scull 550, 560-61, 158 A.2d 221 Md. County, v. Baltimore Grant, A.2d 103 (1960); Md.App. *15 Roberts v. therefore, not, zoning is comprehensive A subsequent of its failure or error because with mistake charged to be zoning comprehensive or in earlier a mistake error have found hold Coppolino’s It has no such burden. changed. which it was clear: regard this ing process established cyclical zoning hold that under
[W]e not mistake” rule is County “change or Baltimore showing of either that the absence of a controlling and does comprehensive rezoning prior to change or mistake not constitute error. County, 55. McBee v. Baltimore A.2d Md.App. (1960), same 312, 317, 157 point: spoke A.2d 258
221 Md. it map adopted, is zoning] [comprehensive such a new When it is an is correct as same presumption is entitled to the original zoning. of “no specific in this case finding of Appeals’
The Board is, therefore, readily explained down-zoning” this reason for no Council under County was self-evident fact that by the In downzoning. reason for the specific obligation give any error, or mistake requisite no event does it constitute reclassification made of which the proper finding without a unjustified. of was Appeals Question- Something Other Than is 2. or Error Mistake able Choice: opin three of the series of in the second
It was (1975), A.2d 137 ions, Sembly, Md.App. Boyce that a conclusion on explicitly set out Judge Davidson comprehensive that the part ill- wrong, Council under review zoning of an actual an advised, adequate finding is not unsuitable or mistake or error the contemplation within law. The legal meaning of “mistake” or far more “error” is restricted:
In Board, order to assess evidence before the it necessary to understand the nature of inherent the terms “mistake” or they “error” are used A law. perusal cases, in which a particularly those finding error was upheld, indicates that the presumption validity accorded to a is overcome comprehensive zoning and error or mistake is probative established when there is evidence to show assumptions or relied premises upon by the Council at the comprehensive the time rezoning were invalid. be showing Error can established by that at the time of to take failed into existing facts, account then or projects trends which future, were reasonably foreseeable fruition in the so that was premised initially Council’s action on a misappre- hension. *16 50-51, Md.App. at A.2d (Emphasis supplied). 137.
To grasp this limited content of terms “mistake” law, “error” in helpful it to may be draw an analogy to a syllogistic flaw the process. finding of a mistake or error is not so much concerned with the logical validity or merit of ultimate conclusion-drawing as it is with adequacy of accuracy the factual premises that under the conclusion-drawing. lie A conclusion based on a factual predicate incomplete deemed, that is or bemay inaccurate law, error; a or mistake an allegedly aberrant conclu information, sion based on by contrast, full and accurate is simply judgment, case of bad which is immunized from second-guessing.
Boyce furthermore makes it that clear the burden 1) on those seeking a reclassification to show both the then- existing allegedly conditions that made the comprehensive 2) zoning incorrect and also the literal failure of the County Council even to have considered those conditions:
It is presumed, part of presumption of validity accorded comprehensive zoning, at time of did, in it and had map the Council
adoption
before
of
and circumstances
the relevant
fact, consider all
facts
upon
error based
Thus, in order to establish
existing.
then
reasonably foresee-
facts or events
existing
failure to take
to show
only
not
account,
necessary
it is
of fruition into
able
comprehensive
of the
that existed
at
the time
the facts
which,
not
those
were
any,
if
zoning but also
facts
evidentiary
This
bur-
actually
considered
by the Council.
physical
by showing
specific
accomplished
can be
den
the time of
readily
or discernible at
not
visible
facts were
zoning ...
comprehensive
51-52,
(Emphasis supplied).
137.
384 A.2d
Md.App.
hint
case,
suggestion
is no shred or
In the
there
present
majority
the circuit court or the
opinion
either
time of the
that at the
opinion
existing
then
condi-
in 1992 there were
comprehensive zoning
respect
or with
to
Beachwood
respect
tions with
not
that were
known
surrounding
to
areas
facto,
ipso
was,
showing
requisite
no
Council. There
necessarily
a reclassification would
or error on which
mistake
in this
the conclusion we
regard
appropriate
We find
depend.
in Boyce:
similar circumstances
under
reached
there
evidence to show that
probative
there is
Thus,
unless
Council,
fact,
existing
which the
were then
failed
facts
account,
which
occurring
events
take into
subsequently
account,
presump-
taken into
could not have
the Council
is not
accorded
validity
tion of
not “fairly
error is
debatable.”
question
and overcome
*17
(Footnote omitted)
52,
(Empha-
A classic
County
a “mistake”
the
erroneously attributed
Appeals
conclusion
on the basis of the Board’s
simply
a
choice was
had involved
Zoning
questionable
Comprehensive
667,
Lipchin,
Md.
A.2d 502 as yet another occasion on which the effect, Baltimore County Appeals, second-guessed Council, County essentially because of its conclusion that 2) Comprehensive Zoning had wrong; been on which the Baltimore County Circuit Court affirmed reclassifi- 3) cation by Board of Appeals; and on which the Court of Appeals reversed both the Circuit Court and the Board Appeals, holding the evidence before the Board of Appeals legally was not sufficient to make the issue possible on part mistake of the County Council even fairly debatable. reviewing legislative
When
action
Council,
courts,
such as
zoning, even the
broad inherent
not
powers
vested
the County Board of
Appeals, are limited
their power of review.
In Council Montgomery County v. District Land Corp., (1975),
Md.
It judicial is well settled that branch of government cannot institute an into inquiry the motives of the legisla- laws, ture the enactment of legislature lest the be subor- dinated to the courts ...
648 The District Land opinion A.2d 712. 387
274 Md. at Law, § 9-4 Rhyne, Municipal from C. approval with quoted (1957): at 229-30 of a motives, rule, propriety wisdom or a general
“As ordinance are not an governing body passing municipal judicial inquiry----” subject to made it Singley then Judge 712. 337 A.2d 274 Md. at courts to deference was due the same clear ordinances: zoning passing ordinances, which zoning to applies principle
The same courts unll not consequence, As a to be valid. presumed are such measures. (Emphasis sup- the wisdom pass on plied.) may not on “pass fortiori,
Id. A
County
measures.”
wisdom such
may
say that
Council
This is not to
legislative
on its
any restraints
without
operate
impunity
operate
within
it must
guidelines
which
general
function. The
spelled
were well
out
engaged
comprehensive
when
Montgomery County,
v.
Hammond Norbeck
Judge
Chief
(1969):
59, 66,
The broad test relationship public it a substantial whether bears order, convenience, gen- health, comfort, morals safety, welfare, strong enjoys presumption and such eral owner has no A property correctness. validity his status of or to the continuance right vested rely on the rule right merely property, neighboring required it for the not made unless change will be good. public omitted). Montgomery County Council See also
(Citations 699-702, 337 Corp., supra, Md. at v. District Land A.2d 712. authority to the ultimate in the courts
There resides
the action
whether
determine
Ark Readi-
discriminatory,
illegal.”
capricious,
“arbitrary,
Smith,
1, 4,
246 A.2d
Corp.
251 Md.
Concrete
Mix
56-57,
(1968);
County,
Hewitt v. Baltimore
Md.
*19
141,
(1959);
136,
96 A.2d
Kraft,
A.2d 144
v.
202 Md.
Wakefield
(1953).
however,
not
County
Appeals,
27
The
Board of
does
jurisdiction
or
over the
enjoy any supervisory power
appellate
County
Express
actions of the Baltimore
Council.
Powers
(1957,
25A,
5(V);
Act,
§
Repl.Vol.),
1994
Art.
Balti
Md.Code
County Charter,
602(a);
§
v. People’s
United Parcel
more
(1994).
Counsel,
569, 587-590,
336 Md.
3. The Conclusion of an That a Mistake Was Made:
The third of the series of opinions by Judge Davidson
clarifying
concept
of “mistake” or “error” was Howard
v.
County Dorsey, Md.
A part
quoted
and
opinion,
in this
137, not
discussed
yet
384 A.2d
Dorsey opinion,
observed:
approval
an
have
this Court
stated
The Court
strong
is not
of an
evidence
expert,
even that
opinion,
rezon-
error in a
to show
enough
substantial
basis
the witness as the
given by
unless the reasons
ing
him,
upon by
relied
facts
supporting
or other
opinion,
his
strong enough to do so.
are themselves
substantial
359,
expert
issue
fairly
debatable
generate
not sufficient
zoning was
*20
reasons, sometimes
so for various
“mistake” have done
to
single
in a
In the
of
case.
admixture
reasons
confusing
for a
however, some of those reasons
analytic clarity,
of
furtherance
sub-groups.
out into discrete
can be sorted
Conclusory
Testimony:
Inadequate Expert
a.
Quasi-Conclusory Opinions
or
an
rejecting
catalyst
as an effective
A self-evident reason
made is the fact that
a mistake was
expert
opinion
best,
is,
quasi-conclusory.
merely conclusory
opinion is
is of
expert
of an
opinion
of
principle
Illustrative
is
facts
strong supporting
in the absence
weight
little or no
469, 473-
Henley,
Rockville v.
Md.
and Council
Mayor
(1973):
74,
by appellee’s
question
simply responded
who
appraiser,
realtor
R-
zoning,
zoning is the correct
present
think the
you
“do
then,
sir,
And
“No,
wrong.”
I think that
by saying
60”
classification, an-
proper
would be the
asked what
when
that area and
“1-1,
I
that would stabilize
swered,
think
infiltration into the
be an
I
there would
don’t believe
naked
homes.” These
of residential
Lincoln Park sector
facts, are insufficient
to
by
declarations, unsubstantiated
attaches
of correctness which
presumption
overcome the
zoning plan.
comprehensive
of a
adoption
252 Md.
County,
v.
Howard
County
See also Smith
Comm’r (1969).
280,
There have been numerous occasions
witnesses that
testimony
expert
has held that the
generate
there had been a mistake was not sufficient
mistake. On a number
respect
debatable issue with
fairly
Appeals,
by
of occasions reclassifications
opinions,
of such
were over
finding a mistake on
basis
294, 206
v.
Bd.
237 Md.
A.2d
Appeals,
turned. Pahl
Dahne,
443, 255
(1965);
v.
254 Md.
Brenbrook Const. Co.
Aviation,
(1969);
257 Md.
A.2d 32
Creswell v. Baltimore
(1970);
268 Md.
Beauchamp,
on Economic Sometimes, contrast, the that a “mistake” expert opinion had been made in the based on a zoning was *21 clearly extensively developed predicate. identified and Even cases, however, in some of those the have been expert opinions generate dismissed as insufficient to a fairly debatable issue very predicates to “mistake” for the different reason that the themselves are immaterial on the issue of actual “mistake” or “error,” in zoning as those terms of art are used law. precise for an that particular type support expert opinion
One inadequate has been found to have been to show generally expert’s Comprehensive “mistake” is the conclusion that the in for Zoning question property will render the unsuitable or, least, development at all at unsuitable for development feasibility. with economic
652 alternative, as an had offered developers
In
the
Coppolino,
been
additional,
guilty
Council had
why
reason
the
.subject
testimony
the
downzoning
property
the
of mistake
that
opinion
the
expert
expressing]
a “number of
witnesses
in the
development
subject
was ‘unsuitable’
property
the
rock outcroppings,
of its topography,
D.R. 5.5 zone because
Perry Hall
proposed
Road and the
proximity
Ebenezer
A.2d 55. This Court
Md.App.
at
Boulevard.”
that
out, however,
experts
the
had “conceded
pointed
developed
property”
on the
single-family houses could be
might
the
not be
property
fact that
concluded that the mere
economically advantageous
in a more
development
suitable for
Zon-
in the Comprehensive
evidence of mistake
way was not
County Board
reclassification
overturning
In
ing.
not sufficient to
held that the evidence was
Appeals,
we
Md.App.
at
fairly
mistake
debatable.
make the issue of
371-72,
In similar Beachwood proper- a “mistake” guilty Council was assumption” that of its “erroneous ty D.R. because economically way in an feasible developed could be property very us is clear density. Beachwood’s brief before with that regard: this of the Council was that the assumption
A final erroneous 1 density. all at a D.R. As could be property developed indicated, sewer testimony public needed required by improvements If the cost of road service. unit is is added to the cost after the fiftieth built and the project needed both to serve the of the sewer houses, mandates then the infrastructure alone surrounding density on homes more than prices to have marketable Without permits necessary project. to build D.R. necessary improvements zone making the D.R. 3.5 virtually to the site becomes bringing the roads and sewer would These considerations alone impossible. financial rezoning assumptions based on the incorrect justify (Emphasis supplied.) Council. *22 had
Indeed, Appeals Coppolino, simply rule not so far as to gone had amount- but also that it had a “mistake” downzoning been out that pointing In property. ed to a confiscation confiscation, disadvantage synonymous is not economic we concluded: stated that an and this Court have Appeals of Court strong or of an is not evidence expert, even that
opinion,
in the comprehensive
to show error
enough
substantial
given by
unless the reasons
rezoning or confiscation
or other
facts
opinion,
supporting
as the basis for his
expert
him,
strong
are themselves substantial and
relied upon
Moreover,
Appeals
of
has
enough to do so.
Court
rezoning
a
on the
held that
order to obtain
repeatedly
confiscation,
must
applicant
of
unconstitutional
an
basis
an
reasonable use
his
deprived
show that he has been
all
any
permitted
and that it cannot be used
far
light
expert
in this
existing
uses in the
zone. Viewed
here does not
muster.
testimony presented
pass
(Citations omitted) (Em-
371-72,
at
Neither the fact that result a retention hardship may able use of land nor that follow the justification existing of an classification sufficient rezoning.
In
in an effort to show that
Boyce,
developers,
finding
had been correct
Zoning,
offered a number
Comprehensive
mistake
why
subject property
as to
“the
conclusory arguments
at
development.”
Md.App.
then unsuitable for residential
53-54,
addition,
In
they
We
testimo-
quasi-eonclusory
and even the
conclusory arguments
strong
to
not
overcome
ny
expert
enough
of the
had
been
Zoning:
validity
Comprehensive
in the
presumption of
subject
First,
property
conclusion that the
because
development
supported
was not
unsuitable for residential
if
facts,
any
it was entitled to little
adequate reasons or
sufficiently
not
and substan-
strong
It was
value.
probative
validity
compre-
presumption
tial to overcome the
zoning.
hensive
55,
c. Surroundinys Incompatibility on With case, under is the situation now frequently It review, that a mistake was made in the expert opinion that an on expert’s based observation comprehensive zoning is incompatible parcel question Frequently, tracts or surrounding parcels. by graphs, is buttressed incompatibility conclusion as charts, photographs. Incompati- and aerial diagrams, maps, result, however, has been held to be immateri- in the end bility in the Council’s al issue of a mistake error on the process. decisional in the qualified v. a “witness County Dorsey,
In Howard its subject property describing after planning, field classify subject environs, it was a mistake to testified that is surrounded property R-12 zone because ‘the property ” concluded that Appeals expert The Court by industrial.’ between the resi- only incompatibility on the opinion, based surrounding and the industrial question dential property of ‘error’ or question to make was “insufficient 364-65, 438 1339. A.2d 292 Md. fairly ‘mistake’ debatable.” situation, regard, in that Dorsey The Howard us, in which to the situation before resemblance strong bears a major played also “incompatibility” as to opinion a similar case, before the only testimony In role. this County Council’s the effect that the Appeals Board of that of Samuel a mistake was Zoning had been Comprehensive Indeed, only this was the Crozier, land expert planner. an that a mistake for the finding basis *24 County Council: by had been made the by testimony presented the ... finds that the The Board and, testimony given by expert the particularly, Petitioner reasons, finding supports Mr. with his supporting Crozier erroneously zoned subject property was of fact that the Council. the the
Early
majority opinion,
its
of Mr. Crozier:
testimony
in full detail the
up
summed
Crozier,
testified that he
expert
planner,
an
land
Samuel
1
site,
that the D.R.
opinion
and it was his
has studied this
to
almost 5
go
that one has
is in error. He noted
zoning
D.R.
makes it
to
which
any
miles
the site
from
find
the area. He further testified
out
character with
totally
residential,
density
for low
urban
that it is recommended
testified that the
refers to 3.5. He further
density
and low
to the “built-out”
Plan should conform
Management
Growth
comply
not
with this
nearby, and that D.R. does
area
that there is no
expert opinion
It was his
D.R. 3.5 does.
all
are
property
zone this
D.R.
since
services
reason to
docu-
available,
D.R. 3.5 under the
problems
there are no
with all
compatible
the
use is
plans,
proposed
mented site
area,
and not D.R. was the
the
and D.R. 3.5
other uses in
(Emphasis supplied.)
this
zoning
parcel.
for
proper
testimony
simply
consisted
A
of Mr. Crozier’s
large part
out
pointing
tracts and
zoning
surrounding
describing
miles
approximately
1 zone was
five
D.R.
that
nearest
reclassification
proposed
His conclusion was that
away.
with the
area and not
compatible
surrounding
D.R. 3.5 was
se,
was,
incompati-
comprehensive
per
that
D.R. 1
event, all of the facts as to which Mr. Crozier
any
ble.
In
or error for the reason
testified would not establish mistake
County Dorsey:
noted Howard
Thus,
premis-
no
to
that the initial
there was
evidence
show
respect
subject property
were
es
the Council with
assigned
classification
consequently
incorrect and
comprehensive rezoning
improper.
time of the
done,
totally
this record is
devoid of
When all is said and
comprehensive
that at the time of the
any evidence to show
subject
failed to take into
property
existing
then
relevant to
any
account
facts
circumstances
its initial
subject
and its environs so
property
determining
appropriate
assumptions
premises
subject
were
classification for the
erroneous.
365-66,
Md. at
25 Testimony: Inadequate Expert Predicated d. Divergence From Master Plan on made it clear that his of Mr. Crozier also testimony a Zoning had been Comprehensive conclusion that the 1992 to the on its failure to conform part was based mistake Growth Plan and with the attendant County Baltimore Master out pointed He that Program Guidelines. Management 1990, Plan, February adopted County Master Baltimore Density “Low Urban under discussion as labeled the area 3.5 and Residential,” is between D.R. which defined
657 County that the Baltimore pointed He further out D.R. 5.5. residential guidelines state residential out”) (“built within density existing equivalent be should the surround- and that neighborhood area or surrounding considerably great- tract were to the Beachwood ing densities 1. er than D.R. however, very emphatic was Dorsey, v. County
Howard
zoning plan
that a
is no requirement
there
applicable
of an
recommendations
must conform to the
master plan.
363,
Holding to a similar effect
292 Md. at Commissioners, Md. 271 Pattey v. Board of (1974): 142 317 A.2d is not to said, only guide a and plan a master
As we have zoning, zoning map, a comprehensive confused with be zoning classification. 280 Md. Lothrop, &
In
v. Woodward
Montgomery
(1977),
Murphy observed:
686, 704,
Judge
Chief
376 A.2d
statute,
absent
any requirement,
is there
Nor
recommendations
must adhere to the
amendment
map
docu-
planning
land use
or Master Plan. Such
the General
outlining
generally
a basic scheme
only
ments represent
area,
and are
an extensive
zoning objectives
planning
subject to
they
continually
are
plan;
in no
a final
sense
development
land use
light
in the
of actual
modification
jacket.
rather than a strait
guide
serve as a
701-03,
Webster,
Md.App.
People’s
also
Counsel v.
See
Prince
(1986);
Floyd
501 A.2d
(1983).
246, 258-59,
Underlying
argument
function,
product
the end
planning
between the
confusion
Plan,
for in County
specifically provided
which is Master
22-17,
through
§§ 22-12
and the
Code,
Planning,
Art. II.
Code,
§§
function,
Zoning,
III.
22-18
by
Art.
zoning
covered
accordance with
Zoning
rezoning
through 22-31.
function. There is no
legislative
is a
comprehensive plan
comprehensive plan adopted by
that
requirement
to the recommendations
legislative body must
conform
Plan.
Master
omitted)
(Citations
(Emphasis
Particularly to the case now before pertinent Appeals: of the Court of further observation jurisdictions have statute While it is true that other with the ordinances be in accordance required that has County Baltimore not. plan, master omitted). (Citation Id. Fairly To “Mistake” Debatable Issue As
No Zoning Comprehensive
In County before the Board of that the evidence We hold issue fairly debatable generate was not sufficient Appeals Comprehensive mistake the 1992 had been a that there mistake, such Council. Absent Zoning County granted should not have the rezon for Baltimore and the Circuit Court ing classification Appeals. affirmed that action not have should Zoning departed Comprehensive the 1992 The fact of no zonings consequence. from earlier of character with zoning is out the D.R. fact on the not se establish a mistake per does surrounding Master The fact that the County Council. part may have a more Plan, guidelines, suggested a set of part a mistake on the does not establish intensive *27 more residential The fact that a intense County Council. surrounding compatible have with circum- zoning been would 1 zoning not, that the D.R. establish ipso facto, stances does intense resi- The fact that more compatible. was also not the tract more development made of dential would have owner does not property to the economically advantageous Zoning. Comprehensive mistake in the establish a moreover, considerations, is the of other all Independent of the circumstances that none over-arching consideration have unknown to shown to been argued by Beachwood were Comprehensive the time of the County Council at not fairly was the issue of mistake It follows that Zoning. its decision County Appeals Board of before the debatable cannot be sustained. Flaw
People’s v. Mockard: The Procedural Counsel for Baltimore Coun of the Circuit Court Our reversal reclassifica and, indirectly, overturning our ty of rests County Appeals Board granted by tion the Baltimore only not that the conclude independent grounds. on two We substantively Appeals was County decision of the debatable, fairly of was not the issue “mistake” because flawed proce announcing but decision opinion also flaw is our procedural this fatal durally Dispositive flawed. Baltimore Mock People’s decision Counsel for ard, 340, 347-51, A.2d 1344 Md.App. (1978), § 2—356(j)explicitly spells
Baltimore Code be before out what must done may be reclassified: of a property any Before (j) Findings prior prop- to reclassification. section, the board of to this erty pursuant is reclassified must find ... appeals discussed, requires an (j)(l), already has been
Subsection change “a the character finding either substantial explicit or “that the last classification neighborhood” (j)(2) is error.” It subsection was established property that must be a list of the factors then forth detail sets findings must be made. and as which considered made, findings and the must be factors must be considered both moreover, finding change with respect mistake, instance, also respect in the first made, that is reclassification of the to be prospective finding: (j)(2) requires in the instance. second Subsection of the property reclassification prospective [t]hat *28 Any finding that or error. of such change warranted reclas- change any finding prospective error and or may only upon be made consideration sification is warranted zoning regulations relating purposes of factors the following: not to all of the including and but limited maps, trends; of and availability adequacy present and Population facilities, facilities, water-supply proposed transportation schools, facilities, recreation- solid-waste-disposal sewerage, facilities, facilities, of uses compatibility al and other public the classification with prospective allowable under generally the or character of present projected development the and area; the recommendation any pertinent surrounding zoning; and and consis- planning board or office of planning with the current and classifications tency prospective water-supply for and county plan sewerage master the plan, facilities, capital program. and the in this that reclassified respect With case, set of procedural requirements was an additional there Appeals. the opinion the imposed on in has litigation tract involved this Since most the area” within development as a “limited designated been (j)(3) provides that Critical Area. Subsection Chesapeake Bay Chesapeake pertaining land within any “reclassification The to” limitations. subject Area is additional Bay Critical case is contained pertinent limitation this additional (j)(3)(b): subsection unless the board has may granted, be
No reclassification findings reclassification made written proposed will: that result quality adverse on water impacts
1. Minimize discharged from structures pollutants from that are lands; surrounding or that runoff from conveyances have habitat; fish, wildlife, and plant 2. Conserve policies land use 3. Be with established consistent Area which in the Critical development Chesapeake Bay that, if fact even growth and also address accommodate movement, controlled, number, and activities pollution environmental in that can create adverse persons area impacts. (Emphasis supplied.) abjectly failed to opinion
The Board (j)(2) or subsec- of either subsection satisfy requirements Indeed, argument Beachwood (j)(3)(b). the feeble tion sentence at the single is based on regard makes this opinion: of the Board’s end and considered carefully has reviewed proceedings, these testimony presented
evidence and and, by the Petitioner testimony presented finds that Mr. Crozier with expert testimony given by particularly, reasons, *29 a finding supporting supports his of fact erroneously by County the was zoned subject property Council. (Emphasis supplied.) is palpable. to the satisfy provision
Its Code inadequacy to the attempt cavalier finesse from the almost Quite aside the findings by of fact precise of and considered requirement of Mr. Crozier into testimony of all of the incorporation casual it, attempted that transparent to it is that even a brief allusion that support finding to “a fact incorporation only is offered erroneously the subject was zoned the the to with additional- purport It does not even deal Council.” that, following finding of companion finding even ly required Plan, the in reclassification itself Comprehensive error the not, moreover, remotely to the even allude It does warranted. (j)(3)(b) to a respect with findings subsection required Bay Area. Chesapeake in the Critical reclassification Mockard, analyzed at People’s Counsel this Court In <j)(2) out in subsection requirements spelled length by the Baltimore reclassification concluded that reversed because of must be satisfy to opinion requirements failure of the Board’s very Bell opinion, Judge Rosalyn In that the subsection. set out: explicitly findings: must make two
Under
Board
provision,
that
2)
1)
zoning,
error
that there was
is warranted. Both
that
reclassification
prospective
consideration
may
“only upon
those
be made
findings
to, all
follow-
but not limited
including,
factors ...
...”
ing.
347,
suggested evidence, Board, could listening course of each of required to have thereby be deemed “considered” requires no means It that the subsection argued factors. rejected squarely on the record. We specific findings argument: 2-58.1(j)(2) § cross-appeal, arguing filed a
Appellees as to does not specific findings Board to enter require only required claim that the Board They each factor. “consider” the factors.... only need claim that the Baltimore
[TJhey factors, the Board did not need “consider” certain hence agree We do not with objectively with factors. deal conclusion. appellees’ (Emphasis original). A.2d 1344 Md.App. at clear of fact are why findings Bell detail
Judge
analyzed
from
dealing
appeals
administrative
necessary when
America
from United Steelworkers
quoted
She
agencies.
*30
AFL-CIO,
Corp.,
v. Bethlehem Steel
Md.
Local 2610
298
(1984):
679,
“Judicial review of
In the latter
judgment.
a trial court
review of
pellate
for evi-
search the record
court will
appellate
context
the
judg-
the
judgment and will sustain
the
support
dence
on the record whether
plainly appearing
ment for a reason
the trial
upon by
the
was
relied
expressly
or not
reason
action,
However,
the
judicial
agency
review of
court.
order unless it is sustaina-
may
uphold
agency
court
not
by
stated
and for the reasons
agency’s findings
ble on the
the agency.”
348-49,
Judge
pointed
Bell
findings
not
factual
may
supply
court
appeals,
appellate
It would
agency.
not made
the administrative
which were
Board of
were
findings
Appeals
be when the
only
one conclusion could be
only
uncontradicted and where
re-
findings
of such
would not warrant
reached that a lack
Ass’n v.
Hideaway
mand.
also
Condominium
See
Ocean
Venture,
650, 664-65, 515 A.2d
Md.App.
Boardwalk Plaza
(1986);
Calvert
Zoning Appeals
v. Board
Gough
for
It is not for us to search the record before in an rationale possible effort construct Robert M. might support its reclassification. (3d 1986), Anderson, § Zoning 3 American Law ed. 16.41 are why agencies states the reason administrative succinctly required express findings: to make can whether the express findings,
Given the court determine evidence, are substantial and whether findings supported by If no warrant the decision of the board. findings remand, made, if are the court elects not to its findings record, upon clumsy speculate alternative to read board, portions probably guess which were believed drawn from credited construct a portions, at the conclusions decision, a decision try basis for to determine whether process, at should be sustained. In the thus arrived board, assigned to much that is required court is do relatively latter inefficient instrument and the becomes (Emphasis supplied.) construction of a record. Board, findings by In the absence of required of this Court Mockard clear: conclusion *31 664 an requires of factors”
Hence, that “consideration we hold findings applicable of as to each of the articulation the 2-356(j)(2) in The Board must make [§ factors contained ]. in both of error in the finding comprehensive findings such was warrant- plan and in a decision that the reclassification ed. in (Emphasis original). A.2d Md.App.
73
at
533
1344.
in
comprehensive
of error
the
rejected
finding
We there
the
of the Board of
because of
failure
§
held
2-356(j).
in
We
compliance
render an opinion
and
“conclusory
the Board was
nature
of
opinion
which, if
any,
of
factors
Board
sufficient indication
lack[ed]
at
making
Md.App.
its determination.”
considered
moreover,
findings
for the
of
It is not enough,
There hovers zoning. shadows, of contract spectral apparition the almost Because neither reclassification of the
Council nor the
pro quo,
do
quid
forbidden
we
any
contains
Appeals expressly
us
an actual instance
contract
not
is before
treat what
42, 50-52,
County,
v.
Montgomery
Somerset
Md.
zoning.
Baltimore,
Pressman
(1962);
Md.
Appellants county’s correct may comprehensive vation and means be improper. to this site to coerce zoning process approach improvements truly responsibility government improp- that are the was er. permeates
Whether the contract that suggested real or or atmosphere imaginary, proved this case was unproved, proper subject or it is clear that improper, alleged zoning matter contract was an off-site traffic improvement to an intersection near the Beachwood property. Were the Beachwood to be developed residentially, use, basis, most of the residents would on a regular nearby intersection of Morse Road and North Point Boulevard. It is parties conceded all that there is at that intersection an undesirable configuration potential that creates a traffic haz- ard. not, however,
It is problem per that would se be created by more intensive traffic use nor that per one would se be eliminated less problem intensive traffic use. It is *a that 5,000 would exist whether one per day per day car cars should use the intersection. It is “sight- described as a distance” problem respect moving vehicles onto Morse Road from North Point Boulevard and vehicles onto moving North Point Boulevard from Morse Road. Both suffer ob- structions to their of vision as they prepare line to make the turn. necessary
Self-evidently, pass through the more cars that the intersec- tion, greater may the likelihood that an accident occur. volume, Although problem the traffic is not the result of traffic quite obviously in would exacerbate increase traffic volume an just quite decrease in traffic volume would problem, it. obviously mitigate of the Board of majority opinion in the
Nowhere that its Council’s finding there an indication way hinged any had been a mistake its traffic hazard or ameliora- possible on the existence of the subject explain- on the Notwithstanding that silence tion. decision, majority opinion, for its ing the rationale it, before was of the witnesses summarizing testimony situa- very in its allusions to traffic generous nonetheless tion. Board was John J. key witness before
One Stamm, pro- -with Beachwood its engineer working a civil It Mr. who Stamm jected development property. improvement for the traffic would be the cost estimated *33 $125,000. through It Mr. Stamm neighborhood the from the January introduced a 1993 letter that there was Administration with to Maryland Highway respect State to the respect for the and with plan property Beachwood’s site paragraph: the following That letter included problem. traffic to improvements no for currently plans funding has SHA developer’s representative MD 151 within this area. improvements willingness a to fund the above indicated However, not developer since the does meetings. previous request MD we must access onto require direct fund and construct these developer the county require the approval. of plan condition improvements Stephen the Board was key witness before Another for Weber, Operations Division of Traffic Chief the to traffic testifying respect Baltimore After County. any improve- to fund the State hazard and disinclination intersection, Weber, in a conversation it was Mr. ment Office, who Planning representative with a to way persuade pay to Beachwood possible suggested Mr. testified: Weber improvement. the traffic The issue is because had been offsite improvement, [that] how could the county reasonably get those improvements developer ? from [they] may
Sometimes be successful if developer willing cooperate, to but certainty there’s no that the county would be able to do developer improve- force offsite rectify ments to the problem. I MacMillan, said, well,
When with Ms. I spoke certainly, done, one very way possibly [roundabout] could be issue, would be to go ahead and recommend force downzoning based on the current limita- tions; if they could come back to the cycle zoning process certainly they could submit a documented site plan showing accommodated, how the would be or what traffic geometric improvements could be made to safely accommo- date that additional development, and that way those im- provements could then be tied to the development plan how, one, showing how the improvements would be able to support proposed development.
I’m not saying it, that’s a good way doing but it was certainly one method that could be done or used. (Empha- supplied.) sis
A third witness before the Board of Appeals was Jeffrey Long, a planner with the Baltimore County Office of Planning and Zoning. His testimony indicated that the positions taken by his implemented office the strategy suggested by Mr. Weber. The members of planning staff and the Planning Board itself took positions various on of the Beach- wood property, sometimes favor of the comprehensive *34 downsizing and at other times favor of requested question reclassification. One Long to Mr. was very point blank, “Would it be safe to say planning staff and planning agreed board to disagree?” He frankly responded, “Yes, I think that would be a fair statement to make.” His position against was to be the proposed reclassification to D.R. 3.5 initially, but then to change positions once Beachwood had committed funding itself to improvement to the off-site intersection:
Well, to D.R. 3.5 would result obviously, rezoning would, know, exist- any It exacerbate trips. you increased ing deficiency. agree to developer felt it was essential to have the
So we any rezoning improvements prior make these of property. filing of the through the accomplished
And that was plan. (Emphasis supplied.) documented site in this to contract One the allusions reason the case is that neither phantom-like quality have case such law, abroad, commentary seems nor the academic here and is the term exactly by what meant a firm on grip have “condition doppelganger, its doctrinal zoning” by “contract senses, some sort In of both involve the broadest zoning.” al unit and the governmental understanding between of doing developer acts whereby the certain developer, rezoning governmen treatment result favorable will that, to blur. begin the definitions Beyond tal unit. zoning” as the treat “contract academic authorities Some as a zoning” with “conditional more generic phenomenon, Plan- Hagman, Donald G. Urban instance thereof. special (1975), § 94 at 74- Law ning Development Land Control phenome- zoning” generic as 75. treat “conditional Others Robert M. non, as the instance. zoning” special “contract (3d 1986), §§ Anderson, 9.20 Zoning Law ed. American two terms Yet authorities treat the at 159-72. other and 9.21 zon- with “contract closely-related phenomena, but distinct but with “conditional beyond legality ing” being pale general acceptance. into therefrom slowly emerging zoning” 2 The Law A. Rathkopf Rathkopf, H. and Daren Arden 29A-30. through § 29A.03 at 29A-22 Planning, Zoning and zoning” “contract narrow- have treated Maryland cases into property enters developer as a situation wherein ly ultimate with the binding contract express legally an circumstances, Maryland cases such In zoning authority. to be null and hold such contract not hesitated to have authority may why the governmental reason void. Part the governmental a contract because into such not enter *35 may bargain away power. unit not its future use of the police Maryland’s zoning treatment of is with contract consistent the “illegal zoning” definition of contract set out in Arden H. Rathkopf Rathkopf, Zoning and Daren A. The Law and § Planning, at 29A-25: 29A.03[b]
Illegal contract said to rezoning process by is involve the government which a into agreement locd enters an developer whereby the government performance exacts a or promise from the developer exchange agreement for its to rezone the property. developer may agree The to re- strict development property, improve- make certain ments, a portion municipality, dedicate of land to the or payments make the municipality. Numerous state court decisions have held express implied agreements such (Footnotes omitted.) illegal zoning. invalid as contract The first Maryland case to find that illegal contract Baltimore, had Baylis City occurred was 219 Md. 148 A.2d vocabulary The was still a state of flux but Council, the decision was clear. The Baltimore City the repository of ultimate zoning authority, granted owner, reclassification to a property conditioned on a binding agreement property owner to use the benefit only reclassification for purpose building a funeral City home. The granted Ordinance that reclassifi- cation expressly incorporated agreement property owner that was the consideration the reclassification: form,
In its final the Ordinance made the reclassification upon conditional the execution of an agreement, set out in Ordinance, between the City, owners and the and the such recording agreement among the Land Records of City, Baltimore so as to binding upon be owners, successors, their heirs assigns. that, agreement provided in consideration of
rezoning, owners develop would the prop- maintain erty as a funeral home ... only 166, 148
219 Md. at A.2d 429. se, using Without the term “contract zoning” per the Court of Appeals illegal. Among held its nugatory resulting ‘contract’ the fact that “the
reasons was *36 is to make which agreements not able municipality because a 429. at 148 A.2d 219 Md. police powers.” inhibit its Baltimore is Pressman City Baylis to In contrast stark Baltimore, A.2d 379 v. City of 222 Md. had entered Baylis City the Baltimore Council Whereas in Pressman contract, it not. The did zoning into express an however, Stewart’s, did, owners, enter Food Fair property the Baltimore Agreement with undisputed formal and into a cer- The owners made property Commission. City Planning Planning Commis- of the “in consideration tain commitments Agreement, to Pursuant that rezoning.” approval sion’s City Council to the recommended Planning Commission subsequently rezoning The was rezoning be granted. granted. illegal Agreement that constituted
In
to hold
declining
the applica-
restricted
Appeals
the Court
zoning,
contract
wherein
to those instances
on contract
tion of thé ban
itself,
govern-
to some other
body
opposed
legislative
Judge
illegal contract. Chief
party
is a
to the
mental agency,
of Appeals:
out for the Court
pointed
Bruñe
refer-
omission of
reasons for the Council’s
Whatever
been,
is
this
may
it
clear that
Agreement
have
ence
body
sought
has not itself
legislative
Baylis,
case,
unlike
that
its
certainly
has
not stated
impose
to
conditions
any
condi-
compliance
dependent upon
own action
tions.
omitted).
(Citations
343,
222 Md. at
Planning
distinguished the
Com-
also
Appeals
Court of
The
to make recommen-
mission,
power
possessed only
which
Council,
dations,
possessed
which alone
City
from the
ordinance:
power
pass
to
was
City
in which the
a situation
thus have
We
Planning
Com-
by the recommendations
not bound
impose
to
condi-
sought
mission, in
that Commission
which
that are
to exact and
not authorized
that
it was
tions
under-
did not
invalid,
the Council
and in which
therefore
take or
attempt
incorporate
the invalid conditions
its
rezoning
and did not even
to them.
ordinances
refer
344, 160
379.
Md.
A.2d
Air,
In Beshore
Bel
v. Town
237 Md.
There is no supporting appellants’ evidence assertion that the property owners and the town of Bel Air entered into in any agreement regard zoning to of their respec- tive properties. The most that can extracted be from the record is property that owners let their in desires regard zoning to known town be and that the fulfilled these desires. No. Ordinance 157 makes reference to any no agreement be special and cannot termed interest legislation it applies any property since to which is proposed to be annexed. any Nor does Resolution No. 20 make reference to any agreement, state to any or conditions the annexation or zoning. 415-16, Md. at
237
We the case before us no presents problem contract, zoning by legislative body since of Bel Air has provision made no in Ordinance or No. 157 Resolution No. zoning upon in on annexation action conditioning their owners.
any acts
A.2d 678.
Md.
Baltimore
us,
argues
Beachwood
In the case before
zoning, somehow
Council,
comprehensive
in its 1992
that
zoning.
pertinence
contract
What
engaged
illegal
true,
to the limited decision before
have,
if
would
even
to
point,
is not
More
clear.
Board
as in Pressman that,
as in
just
however,
just
is the fact
Beshore,
in the 1992
no reference
there was
to the fact
with Beachwood or
zoning
any agreement
act to
any past
any way
related
the 1992
of contract
The evidence
by Beachwood.
future commitment
Beshore,
than was such evidence
even more bereft
is
speculative.
only
found to have been
which was
is
to make
trying
seems to be
The
that Beachwood
point
Planning
brought pressure
the Baltimore
to enter
Beachwood,
forcing Beachwood
thereby
to bear on
Planning
with the
Board.
zoning contract
an unlawful
into
recommen-
favorable
contract would have been
$125,000
in consideration of a
Planning Board
by
dation
the intersection.
improve
Beachwood
commitment
no
argument
go
seeks to
Beachwood
Where
Bresler, Greenbelt
clear,
light
especially
means
*38
(1967).
the Baltimore
210,
The situation of
Md.
236 A.2d
indistinguishable
from
in this case is
County Planning Board
Bresler,
In
in that case.
City
of Greenbelt
the situation
authority
George’s
Prince
resided
the ultimate
Baltimore
Council,
it resided
as in this case
case,
George’s County
the Prince
In that
County Council.
any
reclassification
engaging
before
required,
was
“to the
change
governing
proposed
to submit the
zoning,
of its
for its recom-
Greenbelt]
City
body
municipality [the
215,
a recommen-
at
However all of the foregoing cases involve a contract with deciding authority, the agency which final had control over the granting denial of the requested zoning reclassi- fication. We think there is significant distinction between those cases where the contract is made between the devel- oper and the zoning authority, and those cases involving a contract entered into in good faith between the developer and a which municipality does not have control over the classification and whose authority is limited to recommenda- tion. 215-216,
248 Md. 236 A.2d 1. A similar result was reached in Funger Town Somer- set, 249 Md. 239 A.2d The Court of Appeals agreed that a contact had been entered into the property owners and the Town Somerset. The Town of Somerset agreed to recommend to Montgomery County Council the
674
own-
property
owners. The
sought by
rezoning
ers,
return,
to the Town of Somerset.
made commitments
however,
only
was
made with
the contract
Significantly,
on a recommenda-
power
pass
with the
to
entity
governmental
entity
to enact
governmental
empowered
and not with a
tion
held,
v.
citing Greenbelt
Appeals
The Court of
rezoning.
thé
contract
Bresler,
and was not
“This
was valid
agreement
328,
A.2d 748.
Whatever let alone Board, suggestion, compelling is no there Planning evidence, majority opinion suggestion no certainly and Council, in its that of the Board of implicated in those twist- zoning of no There was evidence ings turnings. let alone scheming plotting, in any involved
Council was for the desired funding high- procure any zoning, contract discussed, the reasons For all of way improvement. in this is a non-issue contract improper allegation case. its sweep, far broader in on contract the ban
Were Beachwood, of contract allegation urged seems to be If would, indeed, two-edged sword. be in this case Planning was not the it speculate we were through County generally, operating but Baltimore specifically into a arms, to enter sought governmental all of its *40 Beachwood, contractual relationship with might we have an instance of contract zoning far more subtle and far more any devious than that we have thus far in encountered case law. Ordinarily, a disfavored zoning contract consists of single governmental agency offering favorable in return for a by commitment owner.
The speculative case, contrast, scheme in by this would involve two separate actions County government under- taken two different arms of that government. The first would consist of Council’s taking away preexist- of ing favorable zoning. The second would then consist of the Board of Appeals’s back, offering give it totally nearly, $125,000 return for a highway contribution to improvement. Ironically, charges Beachwood the County Council with engag- ing forbidden contract zoning appellants even as the charge the Board Appeals and Beachwood with violating the same taboo.
If plot were as widespread as the appellants and the combination, appellee, suggest, Beachwood would find itself on the horns of a dilemma. If the comprehensive the County Council could be faulted having for set an up illegal “deal,” contract zoning then the reclassification by County Board of Appeals could with equal fervor be faulted for having consummated that “deal.” Mercifully, this is a non- issue. REVERSED;
JUDGMENT COSTS TO BE PAID BY APPELLEE.
Concurring opinion by CATHELL, J.
CATHELL, Judge, concurring. I agree with that portion of the opinion that holds that the Board, reclassification, in its failed to make findings sufficient required by the Chesapeake Bay Critical Area law. While the case law as to findings runs the gauntlet from “complete comprehensive” to “findings sufficient apprise one decision,” reasons an administrative here, what occurred respect to the additional requirements of the “critical area” of law” of fact conclusions “findings any to meet
law, fails all necessarily agree with Thus, I do not while standard. its nor with opinion balance reasoning i.e., cases, triad Davidson’s Judge late interpretations I reached. the result I concur Dorsey, Boyce, Coppolino, reverse. would also