Lead Opinion
dеlivered the majority opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 201, infra.
Nearby homeowners in a presently relatively rural suburban
This is the third time the neighbors have entered the lists to defend the character of their environment. In 1955 the owners of the property under consideration sought its reclassification from R-55 (single family detached homes) to R-35 (two attached single family residences). AVhen opposition to the change loomed strong, the owners sought to withdraw the application for change. The District Council chose not to acquiesce in the withdrawal but to dismiss the application.
In October 1961 the owners tried again to secure the right to use their land to house more families than the zoning in effect permitted, asking for reclassification from R-55 to R-18, which would have then permitted some nine hundred fifty so-called garden type apartments on the forty-seven acres. This application was recommended for disapproval by the Technical Staff of the Maryland-National Capital Park and Planning Commission on the grounds that there had been neither original error nor substantial change, but the Planning Board rejected the recommendation and approved the application. The District Council dismissed the application after a hearing at which neighboring owners protested, and the owners appealed to the Circuit Court for Prince George’s County. On October 9, 1962, Judge Loveless sustained the action of the District Council, necessarily holding in so doing that it was supported by sufficient evidence that there had been neither mistake in the original zoning nor a change in the character of the neighborhood. No appeal was taken to this Court.
In the Spring of 1963 the owners of the property renewed their efforts to have it rezoned for garden apartments. Again the Technical Staff recommended denial of the application for the same reasons it gave in 1961. Again the Planning Board
The appellants, the protesting neighbors, appealed Judge Parker’s order of affirmance and urge upon us a number of errors, each of which they argue justifies reversal, including procedural errors of the Council such as its failure to state findings of fact and conclusions of law and its receipt of and reliance upon unsworn testimony. We find it unnecessary to discuss or decide the various contentions because we conclude that the principles of res judicata were controlling and find in the record no evidence of significant change in the neighborhood of the property between 1961 and 1964, which means that the action of the Council in rezoning in 1964 on essentially the same facts and conditions it found insufficient to permit rezoning in 1961 was arbitrary, capricious and illegal.
The District Council has no inherent power to zone or rezone. These powers are entirely delegated by grant of the General Assembly, as we рointed out in Perry v. Board of Appeals,
The provisions of Ch. 992 and other planning and zoning provisions applicable in Prince George’s County were repealed by Ch. 780 of the Laws of 1959, which enacted new sections on these subjects, which were in effect in 1961 and 1964, including §§ 78 and 79 and codified in the Code of Public Local Laws of Prince George’s County (1963) and which delineated the extent and charaсter of the right to rezone an individual piece of property and imposed limitations on that right.
Section 59-83 of the Code of Public Local Laws of Prince George’s County (1963) provided two prerequisites to rezoning: submission of the proposed change to the Planning Commission (now the Planning Board) for its approval, disapproval or suggestions, and a public hearing after appropriate public notice. Section 59-85 (a) made mandatory a stenographic transcript of each such hearing. An appeal to the Circuit Court was granted by § 59-85 (e) to “* * * any person aggrieved by a final decision of the district council * * On the appeal, to be heard without a jury, the trial judge under § 59-85 (i) could affirm or remand for further proceedings or could reverse or modify “the decision” if the appellant’s substantial rights had been prejudiced :
“* * * because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional provisions; or (2) in excess of the statutory authority or jurisdiction of the agency; or (3) made upon unlawful procedure; or (4) affected by other error of law; or (5) unsupported by competent, material and substаntial evidence in view of the entire record as submitted; or (6) against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency; or (7) arbitrary or capricious.”
Thus it is clear that the General Assembly imposed definite conditions and restrictions on the power and the right of the District Council to rezone in individual instances. The Council does not act as a plenary legislative body, it acts as an adjudicatory agency in large part. It must follow statutory authority and procedure, it must act lawfully, it must find support for its action in competent, material and substantial evidence adduced at a public hearing of which a transcript is made, and it must not act arbitrarily or capriciously. When the General Assembly enacted Ch. 780 of the Laws of 1959, the repeated decisions of this Court had clearly established that to justify a deviation from comprehensive zoning a change must be supported by evidence either of error in the original zoning or of a substantial change in the character of the neighborhood. The General Assembly is deemed to have known of this established rule and to have meant, in enacting Ch. 780 of the Laws of 1959, that unless the competent, material and substantial evidence at the hearing before the District Council fairly permitted a finding of error or change, a rezoning would be “affected by * * * error of law” or would be “arbitrary or capricious.”
Although it has been said that the action of the District Council in rezoning in individual cases is ultimately legislative, it is clear that in performing this delegated and restricted function it acts largely as an administrative or adjudicatory agency. In Board v. Levitt & Sons,
“We have repeatedly held that the action of zoning or reclassification of zoning is a function that is legislative in nature. However, this does not prevent the Council from making administrative findings of fact, drawing administrative inferences, and arriving at administrative conclusions and decisions, when hearing an application for rezoning, and the statute clearly anticipates such action. * * * After making its administrative findings of fact, etc., the Council is then in a position to exercise its legislative function of granting or denying the petition for reclassification.”
In light of the administrative procedures and adjudications which the District Council is required to follow and make in the process of rezoning, the principles of public policy which underlie the rule of res judicata logically would seem to be applicable to its actions in this respect. See 2 Davis, Administrative Law Treatise, Ch. 18 (1958); 2 Cooper, State Administrative Law, Ch. XV, §§ 1 and 4 (1965); 2 Am. Jur. 2d Administrative Law §§ 496-97 (1962); Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1, 20 (1964); Hollywood Circle v. Department of Alcoholic Bev. Con. (Cal., In Bank),
Our predecessors took a contrary view. In Knox v. City of Baltimore,
“Worst of all is what the Maryland court has done —to lump together all agencies, to say that they are ‘arms and instrumentalities of the Legislature and are not judicial at all,’ and to conclude that therefore administrative action can never be res judicata. The unfortunate results of this type of thinking are rather clearly brought out in the Maryland zoning cases. * * * Happily, however, the Maryland court has seemingly retreated from its extreme position, for it has specifically acknowledged that ‘innumerable controversies are decided today, by boards of legislative creation, of a character that traditionally fell within the scope of judicial inquiry.’ ” (citing Hecht v. Crook,184 Md. 271 , 277.)
See also Schutze v. Montgomery Co. Bd.,
Whatever view may be taken of the applicability of thе principles of the doctrine of res judicata to administrative or quasi-judicial determinations or actions of an agency, the text writers and the courts are in general agreement that the judgment or order of a court, including a trial court, which affirms or reverses such determinations or actions, ordinarily is. 2 Davis, op. cit. supra § 18.11, pp. 623-24 ; 2 Am. Jur. 2d Administrative Law § 499. See also annotation in 71 A. L,. R. 2d 1362, “Judgment denying permit for use of premises under zoning regulations as bar to subsequent application.” This Court has taken the position that in zoning cases principles of res judicata do apply, both where the first determination was as to an immutable fact or condition, Baltimore v. Linthicum,
“The general rule, where the question has arisen, seems to be that after the lapse of such time as may be specified by the ordinance, a zoning appeals board may consider and act upon a new application for a special permit previously denied, but that it may properly grant such a permit only if there has been a substantial change in conditions. * * * This rule seems to rest not strictly on the doctrine of res judicata, but upon the proposition that it would be arbitrary for the board to arrive at opposite conclusions on substantially the same state of facts and the same law.”
The changes in circumstances alleged to have occurred between 1949 and 1954 were then considered. These were: (1) increased commercialization of the area; (2) increased population of Baltimore County; (3) decreased opposition; (4) additional safeguarding conditions attached to the granting of the permit. There had been two changes in the immediate neighborhood—a stone church to replace a wooden one and a third filling station where there had been two, all some four hundred feet to the south on York Road. Considerable commercial development had come into being on York Road in the five intervening years, both north and south of the property, but none was shown to have had any effect “upon the residential char
“* * * one new fiiijng station, some four hundred feet to' the south on a busy highway, at or near an intersection already having two filling stations does not, in our judgment, show any substantial change or increase in commercialization between 1949 and 1954.” (p- 46)
The increased population of Baltimore County and the need for new funeral homes to care for their needs had been testified to in the first case. On this point it was stated:
“In the second case, they offered testimony to show a further increase in population and hence a greater need for a new funeral home. Testimony on this phase of the case was more detailed in the second case than in the first, but the issue was the same and the testimony in the present case does not, in our estimation, show a materially different situation from that prevailing in 1949.” (p. 46)
Neither neighborhood sentiment nor the slight distinction created by the additional restrictions were deemed to amount to a substantial change in circumstances. In conclusion we held:
“Because essentially the same facts appeared in the second case as аppeared or as could have been shown in the first case, the appellees are barred by res judicata, and their petition should have been denied.” (pp. 49-50)
We think Whittle is dispositive of the case before us. No substantial or significant change in fact or law was shown to have occurred between the 1961 application and its disposition in 1962, and that in 1963 and its disposition in 1964. The Board heard testimony as to, and Judge Parker considered as important in showing change between the two applications, four matters. The first was the proposed East-West Highway tentatively scheduled to run along one side of the property in question if and when built. That same road was alleged as a change
While what constitutes a neighborhood for the purpose of determining change under the law governing rezoning is not and should not be precisely and rigidly defined, but may vary from
In DuBay v. Crane,
“These changes have been numerous on both sides of Landover Road, and include reclassifications for apartments as well as commercial zones. None of these changes, however, is closer than approximately a half-mile to the property here involved, except for one lot which the aerial photographs show is undeveloped. The area immediately surrounding the appellant’s property is zoned R-55 for single family homes.”
“He [the trial judge] based his decision on the fact that several zoning changes had been granted in the area. But, an examination of the record shows that all except one of these changes were on the opposite, west side of York Road from applicants’ property. We have held in past cases that a street or road may be a natural boundary line between two zones. Sapero v. M. & C. C., 235 Md. 1 ,200 A. 2d 74 . In Shadynook Imp. Assn. v. Molloy,232 Md. 265 ,192 A. 2d 502 , we held that the existence of apartment uses on one side of the street does not alter the use of the land on the opposite side, and therefore the street is an appropriate line of demarcation.”
Finally, the Council heard testimony as to, and Judge Parker considered, the rezoning of a shopping center area beyond the school site from the instant property from C-l to C-2 and the rezoning to commercial of two small roadside areas along Annapolis Road. The shopping center area had been rezoned to C-l and was under construction when the first application was filed (it seemingly had been finished before the Circuit Court decision in 1962) and the change from C-1 to C-2 (to permit an automobile showroom, it was suggested at the argument) would not seem to have changed the character of the neighborhood between 1961-62 and 1963-64 anymore than the added filling station and the more distant increased commercialization in Whittle. One of the two small areas rezoned C-2 is at one end and the other at the other end of a small strip of land which was zoned and used as C-2 before the first application. The rationale of Whittle to the small extension of existing commercialization there applies to these rezonings here.
The appellees argue that the law has been altered since 1961-
The Council erred in granting rezoning without considering change between its first and second considerations of the matter, and would have erred if it had undertaken such consideration and granted rezoning on the testimony before it, since on that testimony substantial or significant change could not reasonably have been found by reasoning minds to have occurred, and the order of the Circuit Court affirming the Board must be reversed.
Order reversed, with costs.
Notes
. Amendments to the provisions as to zoning and rezoning in the Regional District in Prince George’s County as enacted by Ch. 780 of the Laws of 1959 were made by Chapters 634, 854, 873 and 898 of the Laws of 1965.
Dissenting Opinion
filed the following dissenting opinion.
I dissent for three reasons: 1) because of the unduly restrictive nature of the Maryland “mistake-change in conditions” rule, 2) because the doctrine of res judicata is, in my opinion not applicable, and 3) because, in my opinion, there were sufficient changes in conditions between October 1961 and the time of the change of zone to make that rezoning change “fairly debatable” even if the “mistake-change” rule in its present vigor and the doctrine of res judicata were applicable.
I pointed out at some length in Part III of my dissenting opinion in MacDonald v. Board of County Commissioners for Prince George’s County,
The majority opinion in the case at bar not only forces the legislative body upon the Procrustean bed, but adds several new slats to that bed, makes it shorter and more narrow and, to me, makes it far more uncomfortable than even it was before. The majority opinion adds further rigidity to the “mistake-change” rule by indicating that this rule has been incorporated by implication into the provisions of the Act of 1959, ch. 780, amending sections of the Code of Public Local Laws of Prince George’s County (1953 Edition), and particularly Section 79 (i) indicating the grounds on which the trial court can reverse or modify the action of the District Council. As I read the Section 79(i), the reasons set forth, except possibly subsection (6) which may well bе unconstitutional,
Further rigidity to the “mistake-change” rule is added by the vigorous application of the doctrine of res judicata to rezoning cases. My reasons for the inapplicability of this doctrine in rezoning cases will be considered later in this dissenting opinion.
The majority opinion to my mind indicates again the need for a reconsideration of the “mistake-change” rule and confirms the reasons for such a reconsideration set out in my dissent in MacDonald.
II.
The majority opinion recognizes that if rezoning is legislative in character, the doctrine of res judicata—a doctrine applicable only to final adjudication by judicial bodies—cannot apply. The majority opinion recognizes “that the action of the District Council in rezoning in individual cases Is ultimately legislative”. In other words, it begins as a legislative action and it ends as a legislative action. However, somewhere between the beginning of the action and its end result, the majority indicates that it takes on a judicial character and the doctrine of res judicata applies. In my opinion this concept is unsound. As I stated in the dissenting opinion in MacDonald:
“Another reason for upholding the action of the legislative body here is that it is a legislative body, and not a mere administrative organ. Zoning and rezoning is legislative in character; it is not quasi-judicial, administrative, quasi-legislative, quasi-executive, or anything other than legislative. Rathkopf, The Law of Zoning & Planning (3d ed.), Section 27; Yokley, Zoning Law & Practice (2d ed.), Section 83, and cases collected therein; 101 C.J.S. Zoning, Section 1 and cases cited.” 3
There is no doubt that the General Assembly in delegating the zoning power to the local legislative body may restrict the exercise of that power in any reasonable and constitutional way, including limitations or restrictions usually associated with judicial proceedings. But such limitations and restrictions do not, in my opinion, convert what is essentially a legislative function to a judicial function carrying with it the more restrictive requirements of due process of law ordinarily associated with judicial proceedings. Indeed it is constitutionally impossible in Maryland to effectuate a conversion of a legislative function to a judicial function as the judicial power is exclusively vested by Article IV of the Maryland Constitution in the Courts mentioned in that Article and this judicial power may not be delegated to either executive or legislative boards or commissions. Our predecessors specifically held this in Dal Maso v. Board of County Commissioners of Prince George’s County,
“The petitioners contend that the order of the defendant amending the zoning regulations is res judicata, which means, of course, that it has the permanence of a judgment or decree of a court of competent jurisdiction. There is some confusion as to the nature and character of these administrative boards, and there are many opinions and text writers who refer to them as quasi-judicial. They do hear facts and, based on them, make decisions, but those decisions are not judgments or decrees. If their findings, resolutions, or orders are resisted or ignored, they must call on the courts to enforce them. Administrative boards and officials are arms arid instrumentalities of the Legislature,, and are not judicial at all; they belong to and derive all their authority from the legislative branch under our form of government. In this State, all judicial authority is only such as is provided for by Article 4 of the Maryland Constitution, and it has been decided that only judicial functions can be exercised which find their authority in that Article (Day v. Sheriff, 162 Md. 221 ,159 A. 602 ; Humphreys v. Walls,169 Md. 292 ,181 A. 735 ; Quenstedt v. Wilson,173 Md. 11 ,194 A. 354 ; Levin v. Hewes,118 Md. 624 ,86 A. 233 ), and that no court not coming within its provisions cán be established in this State. This forbids any power in the Legislature to clothe administrative boards with any judicial authority. There may be states in which it can be done, but Maryland is not one of them.” (Page 205 of 182 Md.; page 466 of 34 A. 2d).
In 1962, Judge Prescott, speaking for the majority of the Court in Maryland Committee for Fair Representation v. Tawes,
“Section 1 of Article IV of the Maryland Constitution vests the judicial power of the State in the Judiciary, and this encompasses all the judicial power of the State. Magruder v. Swann,25 Md. 173 .” (The emphasis is in the original quotation).
The petitioners in Dal Maso had relied heavily on the decision of the Court in Board of Zoning Appeals v. McKinney,
“The powers conferred by the Legislature are powers which belong to it, and which the public necessity and convenience require to be administered by its creatures. As was said in the McKinney case,174 Md. 560 ,199 A. 544 : ‘The Board is a type of those administrative agencies which necessarily play so large a part in the operation of government under modernconditions, the function of which is to ascertain and determine ultimate facts upon which the legislative will is to operate. Such a function involves the exercise of discretion, and judgment, and is in its nature judicial.’ This might have been qualified by adding, so long as it does not conflict with or impinge on Article 4 of the Maryland Constitution. Their function and sphere of action as defined by Judge Miller of Iowa in a brochure on Administrative Raw of the American Bar Association is: ‘The inquiry is not for the purpose of determining existing facts and resultant and controverted rights and duties, which is a judicial function, but is for the formation and determination of future rights and duties, which is a legislative function.’ If there is no remedy provided, the usual methods of mandamus to compel action or injunction to prevent it are available.” (Pages 205-206 of 182 Md.; pages 466-467 of 34 A. 2d).
The Court in Dal Maso cited with approval its decision in Knox v. Baltimore,
“The most recent case in this court as to whether a zoning order, permit, or resolution is res judicata is Knox v. Baltimore,180 Md. 88 ,23 A. 2d 15 , where the appellant contended that the Board of Zoning Appeals could not revoke a prior resolution or classification of his property. It was there said (page 93 of 180 Md., page 17 of 23 A. 2d): ‘The Board of Zoning Appeals not being a court of competent jurisdiction or judicial tribunal it cannot be held that the resolution passed by that Boаrd on February 28, 1939, was res judicata as to whether appellant had a non-conforming use in the lot in question.’ ” (Page 207 of 182 Md.; page 467 of 34 A. 2d).
As the majority opinion points out, Professor Davis in his work on Administrative Law is critical of Dal Maso, but it has never been overruled by the Court of Appeals and the majority does not purport to overrule it. On the contrary, it has been
In Schultze v. Montgomery County Planning Board, 230 Md. 76, 79,
It seems clear to me that in conducting a hearing on a rezoning application the District Council is not required to permit cross-examination or even to swear the witnesses, which would be required if the proceeding were a judicial function, or if the provisions of the Administrative Procedure Act were applicable to the District Council.
In Schultze v. Montgomery County Planning Board, supra, the Montgomery County Planning Board in the absence of fraud, surprise, mistake or inadvertence and any additional facts had “a mere change of mind” in its approval of a final subdivision plan as complying with the provisions of the Montgomery County Code and attempted to disapprove it. The property owner filed a bill in equity to have the Circuit Court for Montgomery County declare that this action by the Planning Board was arbitrary and capricious. The trial court dismissed the bill of complaint, but the decree was reversed on appeal. The Court of Appeals held that this mere change of mind was arbitrary and capricious conduct. This holding is entirely consistent with the exercise of a function legislative in nature. Indeed there was no thought that the original action of the Plan
In Kay Construction Co. v. County Council for Montgomery County, supra, the County Council rezoned a tract of land in Wheaton from the R-60 Zone (single-family dwelling) to the R-20 Zone (medium density, multi-family) оr R-30 Zone (low density, multi-family) in November 1959 by a four to three vote. After petitions were filed for reconsideration by residents in the area and a citizens’ association, the County Council, on March 1, 1960, after there had been a replacement of a former member of the Council, by a four-three vote granted reconsideration and recited that it “finds for good cause shown that its decision should be reconsidered.” This “finding” was made in an attempt to comply with § 104-42 of the Montgomery County Code (1960 Ed.) which required that “good cause” be shown if the Council granted reconsideration of an amendment to the map or text of the zoning ordinance. A rehearing was held on March 22, 1960 and on April 12, 1960 the County Council by the same four-three vote rescinded the original rezoning resolution. There were no changes occurring between the original approval and the subsequent denial of the rezoning resolution. The trial court sustained the reconsideration and denial. Its order was reversed on appeal. The Court of Appeals held that the Council’s subsequent action was a “mere change of mind” and this was not good cause for reconsideration of the original action of the Cоuncil. In other words, the holding by the Court was predicated upon the legislative restriction requiring that good cause be shown. Judge Sybert, speaking for the Court stated at page 486 of 227 Md.; page 698 of 177 A. 2d:
“We recognize that the cases cited dealt with zoning boards exercising quasi-judicial powers, while, as we have indicated, the instant case involves the Council acting as a legislative body. However, the reasoning applied in those cases has some relevance to the issue before us. The Ordinance, by requiring that ‘good cause’ be shown as a necessary condition to the granting by the Council of a petition for reconsideration, has in effect grafted upon that agency a limitation •which exists in regard to quasi-judicial bodies evenin the absence of statute. It permits the Council to grant a petition for reconsideration only where there appears to be a substantial reason for doing so, as defined in the cases cited.” (Emphasis supplied).
The Court recognizes that the County Council was acting in a legislative capacity in granting the rezoning application and that the applicable limitation is legislatively, and not constitutionally, imposed. Again there was no reliance upon the doctrine of res judicata; the doctrine is not mentioned. The Court most certainly recognized that rezoning is a legislative function and was not a so-called “quasi-judicial” function.
It seems clear from our prior decisions that the doctrine of res judicata does not apply to any zoning decisions by Boards of Zoning Appeals. As Chief Judge Brune, for the Court, stated in Whittle v. Board of Zoning Appeals of Baltimore County,
“* * * [T]he doctrine of res judicata has been held not to be applicable where the earlier decision was made not by a court of record, but by a board of zoning appeals, an administrative agency. Knox v. Mayor & City Council of Baltimore,180 Md. 88 ,23 A. 2d 15 .”
When a case reaches the trial court level, however, in a case involving the application of the zoning ordincmce to a specific property owner in a contested matter, the principles of res judicata may then apply. This is because there is a contested case before a court exercising a judicial function. The doctrine has been applied in cases involving a judicial determination that a post office use was a business use not permitted in a residential use district, Baltimore v. Linthicum,
The majority indicates that the decision in Whittle is dis-positive of the case at bar. I cannot agree. Whittle dealt with a special use exception for a funeral home in a residential use district, and not with a change in the zoning law itself by the legislative body as is the situation in the case at bar. In the one case the law is not amended; in the other case, the law is amended. In the one case there is a definite issue of fact to be determined; in the other case, the question is whether or not the change in the zoning map is “fairly debatable.” The determination of this latter question means that on the facts then before the legislative body, the issue could have been decided either way.
Neither Linthicum, Bensel nor Whittle, involved a change in the zoning 'law, and there is no case in Maryland prior to the decision by the majority in the case at bar that applies the doctrine of res judicata in a rezoning case. In my opinion, it is an unwarranted restriction upon the legislative powеr. Indeed, upon the limited appeal provided by statute, the Court makes no determination of any facts—there is no testimony taken before the Court—as the entire determination is essentially limited to two issues 1) was the District Council’s action “fairly debatable” or 2) did it result in a taking of property without just compensation. When the District Council removes zoning restrictions from the rezoned property obviously consideration No. 2 does not apply. In regard to the determination that the issue was “fairly debatable”,
The mandate of Article 8 of the Declaration of Rights in the Maryland Constitution must always be kept in mind. It provides :
“That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.”
III.
But even if the “mistake-change” rule be vigorously applied and if the doctrine of res judicata should be deemed to be applicable, it appears to me that there were sufficient changes in conditions in the neighborhood between October 1961 and the time of the change in zone to make the rezoning change “fairly debatable.”
(A)
Since October 1961, there has been a change in the zoning law itself in regard to the R-18 zone—the very zone involved in the case at bar—reducing the density in that zone. It would be difficult to think of a more substantial “change in conditions” than an amendment to the zoning law itself to reduce the density in the very zone in question.
The majority indicates that the change in density was not substantial as “under the former density limitations perhaps 950 apartments could have been built on the subject tract in contrast to 800 to 850 under the new.” To my mind this is a substantial difference which would support the District Cоuncil in its rezoning action.
There was also a subsequent change in the zoning of the commercial property on which a shopping center has been erected lying approximately 700 feet to the southeast of subject property.
(C)
. . In my opinion the District Council was entitled to consider as a change in conditions which would indeed change the character of the neighborhood, the extension of the proposed East-West Highway immediately adjoining the subject property on the northeast. In the Report of the Technical Staff of March 18, 1964, it was stated:
“The proposed right-of-way for the extension of the East-West Highway forms the northeastern boundary of the tract.”
We held in Rohde v. County Board of Appeals for Baltimore County,
“There was testimony that the State Roads Commission was willing to build the proposed extension of Goucher Boulevard, if duly requested by the County to do so, and that the County would make such a formal request in writing. Though there was some question as to just how soon the Commission could or would act, we think that the evidence was sufficient to show that this extension was ‘reasonably probable of fruition in the foreseeable future.’ The Board was, accordingly entitled to consider it in determining the proper classification of the subject property. Trustees of McDonogh Educational Fund and Institute v. Baltimore County,221 Md. 550 , 570-71,158 A. 2d 637 .” (Page 264 of 234 Md.; pages 218-219 of 199 A. 2d).
See also Jobar Corp. v. Rodgers Forge Community Ass’n.,
The testimony in the case at bar establishes to my mind that the extension of the East-West Highway was “reasonably probable of fruition in the foreseeable future” and was properly сonsidered as a change in conditions. This extension of that large controlled-access road will greatly alter the character of the neighborhood and will erect a barrier between the subject property and the land lying to the east of that highway. The Prince George’s County Planning Board in recommending approval of the R-18 zone for the subject property gave this proposed extension consideration. James M. Hennessey in presenting the Planning Board’s favorable recommendation, stated:
“It is the Board’s considered opinion that the reclassification of the property to the R-18 Zone would provide for a more orderly development of the area,since the property is adjacent to semi-detached homes.
“Furthermore, the proposed East-West Highway forms a natural barrier between this property and adjoining property to the East, and between the property and East Pines is all undeveloped, so that this petition would assist in the orderly development of the Community.”
Cf. Lutherville Community Ass’n v. Wingard,
(D)
I am also of the opinion that the District Council could properly consider the substantially increased need for the R-18 type of apartments in an area close to the nation’s capítol and in a county which the uncontradicted evidence established “as the fastest growing county in the Country.” In 1960 the population of Prince George’s County was approximately 357,000. By the Planning Commission’s estimates there were at the time of the hearing in the case at bar 423,000 people in the County—a gain of 18%. The estimates indicated a population of 790,000 by 1980 or more than a 100% increase in the 20 years from 1960. It is apparent that in such a volatile situation, the need for the type of apartments permitted in the R-18 zone has substantially increased since 1961 or 1962 and the testimony indicated this. The factual situation in this case is quite different from that in the Whittle case, relied upon by the majority, as in the Whittle case it was pointed out in the opinion there was not “a materially different situation from, that prevailing” at the time of the prior decision. The evidence indicates to me that the situation is materially different in the case at bar at the time of the change in zoning than it was at the time of the prior decision.
We must not permit zoning to become static. As Judge Prescott, for the Court, aptly said in Missouri Realty v. Ramer,
“It is a principle of universal recognition that zoning, once imposed, is not static. If it could not be altered with the changing conditions that surround us in the world today, progress would be retarded, andmany of the advantages, logically expected from zoning, would be lost.”
See also Rohde v. County Board of Appeals for Baltimore County, supra, at page 267 of 234 Md., page 220 of 199 A. 2d; Offutt v. Board of Zoning Appeals of Baltimore County,
The Planning Board and the District Council thought that the change in zone was justified by the changes in conditions. Judge Parker thought the issue was fairly debatable, and so do I.
For all of the reasons stated, I would affirm Judge Parker’s order.
. MacDonald, supra, at page 582 of 238 Md.; page 344 of 210 A. 2d.
. We have heretofore declined to pass upon this issue. See Sampson Brothers (Md.) Inc. v. Board of County Commissioners of Prince George’s County,
. Page 586 of 238 Md., page 346 of 210 A. 2d.
. By the Act of 1939, Chapter 714, Secs. 17, 19 the restrictions placed upon the power of the District Council to rezone were a requirement for submission of the proposed amendment and any accompanying map to the Maryland-National Capital Park and Planning Commission for consideration and report for a prior period not less than 30 days, and for a hearing, for which 30 days рrior notice was required to be given in two newspapers of general circulation in the county in which the land was located. There was no provision for any appeal to the Circuit Court for Prince George’s County or to the Court of Appeals.
. Md. Code (1957), Art. 41, Sec. 344(a).
. Judge Loveless in his opinion affirming the former action of the District Council in declining to change the zone stated: “However, even though there is much indication in this record that an effort was made to sway the Commissioners by petitions and a large turnout of opponents, there still exists facts presented of a substantial nature that makes the question reasonably debatable and a ruling either way would not have been arbitrary, capricious or unsupported' by competent, material and substantial evidence.” (Emphasis supplied).
. In the majority opinion it is indicated that the shopping center is 1500 feet from the subject tract. In the Technical Staff’s Report in 1961, however, the following is stated: “Located approximately 700 feet to the southeast of the subject property is a tract of land zoned C-l which is the site of the Glenridge Shopping Center presently under construction.”
. An examination of the Prince George’s County Code will
[[Image here]]