KENNETH RUEHL AND IDA RUEHL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER 2015-0217-R KENNETH RUEHL AND IDA RUEHL FOURTH ASSESSMENT DISTRICT DATE HEARD: DECEMBER 3, 2015 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER PLANNER: JOAN JENKINS DATE FILED: JANUARY 5, 2016

PLEADINGS Kenneth Ruehl and Ida Ruehl, the applicants, seek a zoning reclassification (2015-0217-R) from C3 General Commercial District to C4 Highway Commercial District on property located along the east side of Whiskey Bottom Road, south of Camp Meade Road, Laurel. PUBLIC NOTIFICATION The hearing notice was posted on the County s website in accordance with the County Code. The file contains the certification of mailing to community associations and interested persons. Each person designated in the application as owning land that is located within 175 feet of the property was notified by mail, sent to the address furnished with the application. The applicants testified that the property was posted in excess of 30 days prior to the hearing. I find and conclude that the requirements of public notice have been satisfied. The Property The applicant owns the subject property which has a street address of 3521 Whiskey Bottom Road, Laurel, Maryland 20724. The property is identified as Parcel 141 in Block 18 on Tax Map 19. The property is zoned C3-General Commercial District and not located in the critical area. The Proposed Rezoning The applicants are requesting a zoning reclassification from C3 to C4 for property comprising 39,552 square feet, as shown on the site plan introduced into evidence at the hearing as County Exhibit 2. 1

The Evidence Submitted At The Hearing Joan A. Jenkins, a planner with the Office of Planning and Zoning (OPZ), testified that the subject site is generally rectangular in shape and contains 39,735 square feet or 0.91 acres of land. The property is located with 100 feet of frontage on the east side of Whiskey Bottom Road, south of Old Camp Meade Road. The property is located within the Route 198 Corridor Revitalization District and is in Growth Tier 1. It is served by public water and sewer. The property is improved with a single-story commercial building and parking facilities. It is accessed directly via Old Camp Meade Road, a local road. Trees buffer the eastern side of the property from the adjacent property and trees and a fence buffer the southern property line from the adjacent property to the east and southeast. Ms. Jenkins testified that the applicants purchased the subject property on February 13, 1990. A special exception (Case No. S-176-90) to permit an automotive service station in a C3 district and a variance (Case No. V-177-90) to setbacks were both approved July 10, 1990 with conditions that included road improvements and that the service station shall be permitted only if an automobile station continues to operate on the adjoining property to the south (Parcel 31). On page 3 of the variance decision the applicants testified that while the new building on the site will have 11 maintenance bays, the facility will be devoted to light repairs only. There will be no engine rebuilding, fabrication, or substantial body work done on the premises. Since the maintenance operations will be 2

conducted inside the building, it will be isolated from other uses by Camp Meade Road and Route 198 and there is little chance that the activities associated with this repair facility will be objectionable to any of the nearby properties. The zoning analyst for this case testified that OPZ views the new service station (Parcel 141) as an expansion of the existing Shell station which has been on site, although on a separate property, for approximately 20 years. The applicants requested a use variance (Case No. 2012-0295-V) to allow an automobile and truck and towing and storage yard in conjunction with an existing repair center in a C3 district. The variance request was denied February 13, 2013 and was not appealed. Ms. Jenkins testified that the applicants filed an application to register the subject property as a nonconforming use (Case No. 2013-0167-N) to allow an automobile and truck repair facility and an automobile and truck towing storage yard in a C3 district that was denied April 1, 2014 and was not appealed. The current zoning classification is C3 district, as adopted by the comprehensive rezoning of the Fourth Councilmanic District zoning maps, effective July 10, 2011. Ms. Jenkins testified that the applicants seek approval to rezone the subject site from C3 to C4 district in its entirety. Accordingly, the total area to be rezoned to C4 is 0.91 acres. If the reclassification is granted, the applicants will continue conducting a full service automobile repair facility with towing operations that has been in operation on the subject property for 24 years. 3

At the time of the adoption of the 1952 Zoning Ordinance, effective July 1, 1952, the subject property was zoned Heavy Commercial District. As a result of the first comprehensive rezoning for the Fourth Assessment District, effective October 15, 1973, the property was reclassified as C3 General Commercial District. The C3 zoning designation was retained with the second comprehensive rezoning for the Fourth Assessment District, effective June 12, 1989, with the third comprehensive rezoning for the Jessup/Maryland City Small Area Plan (SAP), effective June 21, 2004, and with the fourth comprehensive rezoning, effective July, 10, 2011. It is noted that a small sliver on the east side of the site is designated C2 Commercial Office District. Ms. Jenkins testified that OPZ found no evidence that the applicants filed a petition to reclassify the subject property during the most recent comprehensive rezoning, the SAP process or the 2010 General Development Plan (GDP) process. OPZ defines the neighborhood for this request as that area bounded by 2000 feet north and south of the Route 198 Corridor, Brock Bridge Road to the west, and the Baltimore-Washington Parkway to the east. The subject property is centered in the neighborhood near the major intersection of Whiskey Bottom Road/Old Annapolis Road and Route 198. Whiskey Bottom Road is classified as a minor arterial road. The Route 198 corridor portion of the neighborhood consists predominantly of a mix of commercially zoned properties. Ms. Jenkins testified that directly north of the property, across Old Camp Meade Road, is a property used as a truck repair facility that has been zoned C4 4

since the first comprehensive rezoning in 1973. West of the property are C3 and C4 zoned properties consisting of a bar/lounge, the Maryland City Fire Company, and several car dealerships. The bar/lounge property was zoned C4 until the second comprehensive zoning when the zoning designation was changed to C3. Adjacent south and east of the property are C3 and C2 zoned properties developed with a gas station and an office complex. Southeast of the property heading east towards the BWI Parkway, on the north side of Route 198, are a variety of businesses; a liquor store, several fast food restaurants, and a hotel. A Planned Unit Development Subdivision known as The Russet is northeast of the property. On the south side of Route 198 directly south and southeast is a shopping complex. South and southwest of the intersection is a hotel, auto accessory shops, fast food restaurants, and The Tall Oaks apartment complex. In the R5 district to the south is Maryland City, a census-designated place. The Health Department commented that the property is served by public water and sewer facilities and has no objection to the variance request. Both the Fire Department and the Department of Recreation and Parks have no comment. The Development Division (South Team) of the OPZ commented that they defer to the Zoning Division on the appropriateness of rezoning this site to C4. No development is proposed with this application. However, for any future development, the applicants will be required to meet all applicable Code restrictions and Adequacy of Public Facilities criteria, including current 5

stormwater management regulations, traffic capacity, fire suppression and available public utilities. The Long Range Planning Division of the OPZ commented that the subject parcel is designated for commercial land use on the GDP Land Use Plan. It is located within a Commercial Revitalization Overlay Area. The GDP does not contain any site specific recommendations regarding the subject property. Ms. Jenkins testified that OPZ would find a C4 zoning classification on the subject parcel to be generally in conformance with adopted long range plans and to be generally compatible with surrounding land uses. The applicants contend that there had been significant change in the neighborhood as far back as 44 years ago when the applicants began their business operations on the adjoining property to the south. However, Ms. Jenkins testified that, from the information submitted by the applicants and through records maintained by OPZ, there is insufficient evidence of neighborhood change to support this piecemeal rezoning request. This conclusion is based primarily upon a review of the neighborhood since the most recent comprehensive rezoning, effective July 10, 2011. There has been no change in use or development on either the subject property or in the surrounding area subsequent to the last comprehensive rezoning to warrant a rezoning based on neighborhood change. Ms. Jenkins testified that under Maryland law, error can be established by showing that at the time of the comprehensive rezoning, the County Council failed to take into account then existing facts, or projects or trends that were reasonably 6

foreseeable to fruition in the future, so that the Council s action was premised initially on a misapprehension. Error or mistake may also be established by showing that events occurring subsequent to the comprehensive zoning have proven that the Council s initial premises were incorrect. Historical Maryland zoning case law establishes that when the assumption upon which a particular use is predicated proves, with the passage of time, to be erroneous, this is sufficient to authorize a rezoning. Thus, Ms. Jenkins testified that OPZ has concluded that an error was made by the Council when it assigned a C3 Commercial Office District zoning designation to the property. The 2009 Land Use Plan (Figure 7-1) of the Anne Arundel County GDP designates the subject property as Commercial. Table 7-1 of the GDP indicates the typical use within the Commercial category is community retail, commercial office, general retail, and highway commercial uses. The proposed C4 Highway Commercial zoning classification of the subject property is consistent with that designation. As such, the proposed reclassification from C3 to C4 conforms to the GDP. The Proposed Land Use map (Map #7) on page 31 of the 2004 Jessup/Maryland City SAP identifies the subject property as Commercial. Once again, the proposed reclassification from C3 to C4 conforms to the Jessup/Maryland City SAP. The subject site is surrounded by commercial development zoned C2, C3 or C4 on all sides. As such, the proposed C4 district classification of the property 7

is compatible with the uses in the neighborhood, which consists primarily of commercial uses. There is a strong presumption of correctness of the comprehensive rezoning, and the applicants must produce strong evidence of a mistake of fact in order to justify a piecemeal rezoning. For the proposed zoning reclassification, Ms. Jenkins testified that OPZ finds that the evidence presented by the applicants and provided via County records constitutes a mistake. The proposed reclassification would be compatible with the surrounding land uses and conforms to the commercial designation of the GDP. Based upon the standards set forth in 18-16-303 of the Code, under which a zoning reclassification may be granted, OPZ recommends approval of the proposed zoning reclassification of the 0.91 acre subject property from C3 to C4. The applicants were represented at the hearing by Shawn D. Bartley, Esquire, and Claudio M. Sayan Lazarte, both of the law firm of Shawn D. Bartley and Associates, LLC. Evidence was presented through the applicants that they have operated an auto repair center and towing operation on the property for at least 24 years. They adopted OPZ s recommendation. There would be no change to the ongoing operations at the site, and the rezoning would correct a mistake made by the Council when it did not rezone the property to match the activities that have been conducted on the site for decades and make it compatible with other C3 zoning in the area. 8

There was no other testimony taken or exhibits received in the matter. The Hearing Officer did not visit the property. Findings A rezoning requires affirmative findings that: (1) There was a mistake in the zoning map or the character of the neighborhood has changed to such an extent that the zoning map should be changed; (2) The new zoning classification conforms to the General Development Plan (GDP) in relation to land use, number of dwelling units or type and intensity of nonresidential buildings, and location; (3) There is compatibility between the uses of the property as reclassified and the surrounding land uses, so as to promote the health, safety, and welfare of present and future residents of the County; The applicants has the burden of proof on all questions of fact. The burden has been described as onerous. Agneslane v. Lucas, 247 Md. 612, 233 A.2d 757 (1967). Change or Mistake The Court of Appeals has provided a succinct statement of the changemistake rule applicable to piecemeal rezoning applications: The change-mistake rule is a rule of the either/or type. The change half of the change-mistake rule requires that, in order for a piecemeal Euclidean zoning change to be approved, there must be a satisfactory showing that there has been significant and unanticipated change in a relatively well-defined area (the neighborhood ) surrounding the 9

property in question since its original or last comprehensive rezoning, whichever occurred more recently. The mistake option of the rule requires a showing that the underlying assumptions or premises relied upon by the legislative body during the immediately proceeding original or comprehensive rezoning were incorrect. In other words, there must be a showing of a mistake of fact. Mistake in this context does not refer to a mistake in judgment. Additionally, even where evidence of a change or mistake is adduced, there is no reciprocal right to a change in zoning, nor is there a threshold evidentiary standard which when met compels rezoning. Even with very strong evidence of change or mistake, piecemeal rezoning may be granted, but is not required to be granted, except where a failure to do so would deprive the owner of all economically viable use of the property. The Mayor and Council of Rockville et al v. Rylyns Enterprises, Inc., 372 Md. 514, 538-539 (2003). 1 Applying the law to the facts in this case, I find and conclude that there is sufficient evidence of a mistake to support a decision that the continued zoning of the subject property as C3 General Commercial District was a mistake. 1 See also, Case No. 2007-0420-R, In Re: Regency Land Associates, LLC (March 13, 2008) at 7: This office treads lightly into the considerable morass of conflicting evidence that piecemeal cases often engender. There are several reasons for caution: comprehensive zoning is the exclusive province of the Council; piecemeal cases effect an amendment to the zoning maps; the mistake-change rule is intended to promote the public health, welfare and safety while recognizing private property rights; the rule is easily recited but hard to apply; the rule is supposed to be disjunctive but the operative facts can support both the mistake and the change prongs of the rule; mistake cases require evidence of incorrect assumptions or premises by the Council - mere error of judgment by the Council is insufficient; change contemplated in the comprehensive zoning process is typically not evidence of substantial change in the character of the neighborhood under the rule; the applicants has a high burden of proof; even with proof of mistake or change, the rezoning is not compelled unless the owner is denied economically viable use; and other reasons. And see, Case No. BA 75-06R/BA 76-06R, In Re: Severna Park Market Place Center, et al (June 25, 2008) at 18 (Dissent). 10

Conformity with the General Development Plan (GDP) 18-16-303(b)(2) of the Code requires that the new zoning classification conform to the GDP in relation to land use, number of dwelling units or type and intensity of nonresidential buildings, and location. Given the zoning of the surrounding area, I find that the proposed rezoning complies with the GDP. Compatibility with Surrounding Land Uses 18-16-303(b)(3) of the Code requires that the uses of the property as reclassified and the surrounding land uses are compatible, so as to promote the health, safety, and welfare of present and future residents of the County. I find that the proposed rezoning will meet this element of the Code. The property is surrounded by commercially-zoned property that is compatible with the proposed rezoning classification. The Description of the Land to be Rezoned The land to be rezoned is described as Parcel 141 in Block 18 on Tax Map 19, consisting of 0.91 acres, more or less, as shown on County Exhibit 2. ORDER PURSUANT to the application of Kenneth Ruehl and Ida Ruehl, petitioning for a zoning reclassification from C3 General Commercial District to C4 Highway Commercial District; and PURSUANT to the notice, posting of the property, and public hearing and in accordance with the provisions of law, it is this 5 th day of January, 2016, 11

ORDERED, by the Administrative Hearing Officer of Anne Arundel County, that the applicants request to rezone the subject property, approximately 0.91 acres, from C3 General Commercial District to C4 Highway Commercial District, described as Parcel 141 in Block 18 on Tax Map 19 in Laurel, Maryland, as shown on County Exhibit 2 attached hereto, is hereby granted. NOTICE TO APPLICANTS Within thirty days from the date of this Decision, any person, firm, corporation, or governmental agency having an interest therein and aggrieved thereby may file a Notice of Appeal with the County Board of Appeals. If this case is not appealed, exhibits must be claimed within 60 days of the date of this Order, otherwise they will be discarded. 12