Court Orders Reversal Of Rezoning Denial

Commissioners' Decision Ruled 'Unreasonable'

October 20, 1991|By Daniel P. Clemens Jr. | Daniel P. Clemens Jr.,Staff writer

The state's second-highest court said the county commissioners were "capricious and unreasonable" in denying an Eldersburg dentist's rezoning request in 1989 and has sent the matter back to the commissioners with orders to reverse it.

The Maryland Court of Special Appealsdenied the commissioners' appeal of a Circuit Court order to reversethe denial of Joseph D. Stephens' request for the rezoning of 6.25 acres from commercial to residential.

Stephens, who bought the property in 1972 and filed the rezoning request in 1988, operates a dentistry office from his home on the Liberty Road site.

County administrators, who learned of the court's decision on Tuesday, have not decided whether to pursue an appeal.

"There's nothing I can tell you on where we're going on it," County Attorney Charles W. Thompson Jr. said late Thursday. "It's too early.We're going to have to review the decision and determine what to do."

Stephens had requested rezoning of the tract from residential tocommercial.

The front half of the tract was zoned commercial and the back half residential when he purchased the property in 1972, according to court records.

In 1976, Stephens applied for and was granted a conditional-use variance from the county zoning administrators.

The variance allowed him to operate the dental office.

In 1977, the entire property was "down-zoned" to residential status as partof the county's comprehensive rezoning.

Other properties adjacentto Stephens' tract also were down-zoned, with existing businesses granted non-conforming-use permits.

When Stephens filed his rezoningpetition in 1988, he claimed

the county had erred when it down-zoned the tract from business to residential, because the area had developed a commercial character.

The dentist also argued that since the down-zoning, there has been sufficient change in the neighborhood to support a rezoning to a commercial classification.

The appeals court concluded that the 1977 down-zoning implied that county administrators expected the area to develop residentially.

Instead, the adjacent businesses -- a muffler shop, two restaurants, an office building and a beauty shop -- thrived and expanded in the intervening years, the court said.

"It is clear . . . that this area will retain its commercial character, and thus the assumption on which the 1977 rezoning was presumably based -- that the property would develop residentially -- was a mistake," the court wrote in the Oct. 11 ruling.

The commissioners handled the request because it is the only body with the authority to grant rezoning petitions.

Former Commissioner President John L. Armacost voted against the request, and former Commissioner Jeff Griffith voted in favor. Commissioner Julia W. Gouge was not present when the vote was taken. The 1-1 tie resulted in denialof the request.

Stephens appealed to Circuit Court, which reversed the board's denial and called it "arbitrary and capricious."

Thecourt later modified its ruling by sending the matter back to the commissioners with orders to approve the request.

Although no decision on whether the county will appeal has been made, there is a "wide panoply of choices" to consider, Thompson said. The possibilities include asking the Court of Special Appeals to rehear the case, and requesting that the state's highest court, the Court of Appeals, take thecase.

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