text:
    JAMES LEO MANALANSAN v. STATE OF MARYLAND
    [No. 1055,
    September Term, 1979.]

      Decided June 11, 1980.

    The cause was argued before Thompson, Moylan and Weant, JJ.

      Gerald A. Kroop for appellant.

      William H. Kenety, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

We undertake the consideration of this appeal with the mental set still intact that we first articulated in Dixon v. State, 23 Md. App. 19, 20-21, 327 A.2d 516, to the effect that "no aspect of Fourth Amendment litigation has afflicted law enforcement with the yawning credibility gap wrought by inventory searches.”

We begin with the bedrock proposition that the inventorying of the contents of an automobile is not a constitutionally-permitted investigative technique. A search for evidence within an automobile may only be undertaken pursuant to a validly issued search and seizure warrant, Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); warrantlessly where there is probable cause to believe that the automobile contains evidence of crime coupled with an exigency excusing the warrant requirement, Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); warrantlessly where all or some of the automobile lies within the reach, lunge or grasp of an arrestee, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), and Peterson v. State, 15 Md. App. 478, 292 A.2d 714; or warrantlessly pursuant to valid consent, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The inventorying of the contents of an automobile, on the other hand, serves a noninvestigative purpose. In Waine v. State, 37 Md. App. 222, 232, 377 A.2d 509, Judge Thompson for this Court analyzed the then recent Supreme Court decision of South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), and well set forth the purpose of the automobile inventory:

"Three purposes which serve to legitimatize warrantless police intrusions into the interior of an automobile following its seizure were listed: (1) protection of the police from danger; (2) protection of the police against claims and disputes over lost or stolen property; and (3) protection of the owner’s property while it remains in police custody. Inventory searches, therefore, are not conducted in order to discover evidence of crime. They are conducted in accordance with police departmental policy to list what is in police custody. Probable cause to seek a search warrant would be irrelevant.”

It is, furthermore, clear that in assessing the ultimate constitutional fact of whether a police intrusion into an automobile is a bona fide inventory or a subterfuge for an otherwise unpermitted investigative search, we are required to make our own independent, reflective judgment. Walker v. State, 12 Md. App. 684, 694-695, 280 A.2d 260; Gardner v. State, 10 Md. App. 233, 245, 269 A.2d 186; Reagan v. State, 4 Md. App. 590, 601, 244 A.2d 623. Judge Liss stated this standard of review most recently in Herring v. State, 43 Md. App. 211, 220-221, 404 A.2d 1087:

"In order to justify the policeman’s conduct in this case, we would be required to conclude from our own independent examination of the record that the detective acted in good faith in making the alleged inventory search, and not as a subterfuge to conduct a warrantless search for investigative purposes.”

See also Cleckley v. State, 42 Md. App. 80, 399 A.2d 903.

By these criteria, we now assess the convictions of the appellant, James Leo Manalansan, in a nonjury case in the Criminal Court of Baltimore City for 1) simple assault and 2) the unlawful possession of PCP. The appellant challenges the constitutionality of the search for and seizure of the PCP.

Although the appeal is technically from the assault conviction as well as from the unlawful possession conviction, the physical evidence now in question had no bearing on the assault case. The assault victim, Catherine Burke, testified that the appellant assaulted her by spitting in her face. Officer Thomas Gerst also testified that he observed this assault take place in his presence. The arrest for the assault preceded the now questioned search of the appellant’s automobile. Since the only point now in issue does not remotely bear upon the evidence of assault, the conviction for assault will be affirmed.

The search that produced the evidence for the unlawful possession case was the proximate result of the arrest for assault. An earlier altercation had occurred between the appellant and Catherine Burke. At the suggestion of another officer, Ms. Burke came to the Southern Police Station to apply for a warrant. Officer Gerst was sitting in his patrol car across the street from the police station when he observed the appellant drive up and call Ms. Burke over to the driver’s window. Officer Gerst observed the appellant spit in Ms. Burke’s face and then drive off. Ms. Burke entered the police station, came out a short time later and, with her friend, went to get in her car and drive away. Officer Gerst was still observing the scene when the appellant’s car returned and double-parked in such a way as to make it impossible for Ms. Burke to get out of her parking place. Officer Gerst started up his own automobile, turned on the blue flashing dome light and moved his car in behind that of the appellant. The appellant moved on down the street and stopped. Officer Gerst approached him and placed him under arrest for assault. Thus far, the narrative is constitutionally unremarkable.

The appellant was still seated behind the wheel when Officer Gerst, from the window, informed him that he was under arrest. As he alighted from his automobile, the appellant took a grey container from his right front shirt pocket and laid it on the front seat of the automobile, toward the passenger’s side. After he was out of the automobile, the appellant was placed in handcuffs. The officer then went into the automobile and picked up the container. He opened it and found that it contained a greenish substance which he believed to be PCP. He admitted quite candidly that he seized the container "to find out what was in it.” The trial judge ultimately ruled that this seizure and subsequent search was unconstitutional since it was predicated upon the doctrine of search incident to lawful arrest and the item seized was beyond the reach, lunge or grasp of the arrestee. The evidence was, therefore, suppressed. Although this first unconstitutional search is not now before us, it does throw light on the state of mind of Officer Gerst as he proceeded further into the automobile. Additional light was thrown on that state of mind when Officer Gerst was asked if the appellant appeared to be high in any way. Officer Gerst replied that he "appeared to be either drinking or on something,” This observation by Officer Gerst, coupled with his discovery of suspected PCP, cannot be ignored as we attempt to resolve the question of whether the automobile search that followed was a mere bona fide listing of personal property or was a search for further evidence of drugs.

The subsequent search produced two hand-rolled cigarettes made from PCP and two clear plastic bags containing PCP. The officer testified that these items were recovered purely inadvertently in the course of a noninvestigative, routine inventory of personal property. The officer’s characterization of the search, however, is not dispositive. In dealing with a similar situation, the Court of Appeals in Duncan and Smith v. State, 281 Md. 247, 261, 378 A.2d 1108, concluded quite otherwise:

"[D]espite the disavowal of the searching officer, in light of the information within the knowledge of the officer and the scope of the search, there is the strong suggestion that the search was actually a pretext concealing an investigatory police motive.... As the police were not indisputably engaged in a caretaking search of a lawfully impounded automobile, the search and seizure cannot be said to be reasonable under the caretaking doctrine.”

Upon our own independent, constitutional appraisal, we conclude that the further search of the automobile was pursuant to "an investigatory police motive” and was, therefore, unreasonable. Several factors combine to lead us to this conclusion. The first was the very decision to take the automobile into custody in the first instance. Everything that transpired in this case occurred within the shadow of the Southern Police Station. There is no indication that when the appellant was arrested from his automobile that his automobile was not then at rest in a legitimate parking spot. If, arguendo, it was not, there was no showing of why the appellant himself or one of the officers could not have moved the automobile, within a few feet and within a few seconds, into a parking space, locked it and left it. The reasonableness of leaving the automobile essentially where it was is all the inore prominent in view of the fact that the appellant was about to be taken into the station to be booked on a charge of simple assault by spitting. He would have been released on his own recognizance or on nominal bond within a very brief time and would then have been able to return to his car and to drive home. The necessity for impounding the car was not remotely demonstrated. It is simply not reasonable to tow a car away to avoid moving it to the curb, if such minimal movement was indeed necessary.

This situation contrasts sharply with the automobile inventory approved by the Supreme Court in South Dakota v. Opperman, supra. In approving the inventory there, the Court pointed out that the "owner .. . was not present to make other arrangements for the safekeeping of his belongings.” 428 U.S. at 375. In the Opperman case, the Court concluded that there was "no suggestion whatever that this standard procedure, essentially like that followed throughout the country, was a pretext concealing an investigatory police motive.” 428 U.S. at 376.

We have in the present case, moreover, the salient fact that the officer had already undertaken a search for evidence when he seized and then further inspected the grey plastic container, which was ultimately suppressed. ■

The method used by the police, additionally, belies the innocuous, noninvestigative purpose. A list was made of the probable evidence seized. All of that evidence was promptly taken to the laboratory for chemical analysis. No list was made, however, of nonevidentiary items, either by way of listing them or by way of indicating that none were present. The officer’s failure of recall when it came to his search of the glove compartment was representative of the general attitude toward the nonevidentiary aspects of the inventory:

"Q. Did you go in the glove compartment.
A. Yes, sir. I believe I did.
Q. Was anything in the glove compartment?
A. I don’t recall.
Q. Did you make an inventory list of everything that you found in the car?
A. Everything that I took out of the car.
Q. Everything that you found in the car?
A. No, sir.”

The discovery of the two PCP cigarettes is also indicative of an investigatory purpose. A silver cigarette case was found on the floor of the automobile. If a listing of valuable chattels were all that had been involved, the list would have included "one silver cigarette case.” It was unlikely that a cigarette case would contain some other valuable item, itself worthy of special notation. In this case, however, the silver cigarette case was opened and not routinely closed. The observation was first made that the two cigarettes on the inside were "hand-rolled.” A more searching observation was then made that beneath the covering paper was a substance that appeared to be not regular tobacco but suspected PCP. The whole process bespeaks an investigatory frame of mind.

In the back seat of the automobile was found a black bag, which was closed. The officer looked inside the bag and discovered two clear plastic bags which also contained a greenish substance. Both the black bag itself and the two small bags of greenish substance were seized and taken to the crime laboratory. The officer justified his opening of the bag on the ground that he "wanted to find out if any valuables were inside the bag.” In dealing with a similar situation in Waine v. State, supra, Judge Thompson pointed out that under United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (and now under Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)), even probable cause coupled with exigency will not permit the police to open up suitcases, cartons and other containers. Even with probable cause, they are required to seize the suitcase or other container and keep it inviolate in the property room unless and until a warrant can be obtained. Judge Thompson there pointed out the irony of extending less protection to a citizen when his suitcase is being searched simply as an accommodation to himself and his property, saying at 37 Md. App. 234:

"As pointed out by Justice Powell in his concurring opinion in South Dakota v. Opperman, supra 96 S. Ct. at 3102, the upholding of inventory searches does not provide a general license for the police to examine all the contents of the container.”

From all of the above, we hold here, as we did in Dixon v. State, supra, at 23 Md. App. 38, "we cannot help but conclude that the officer’s resort to an inventory rationale was a case more of investigative opportunism than of genuine solicitude for personal property.”

Judgment of conviction for assault affirmed; judgment of conviction for unlawful possession reversed and case remanded for new trial; costs to be paid by the Mayor and City Council of Baltimore City.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    KENNETH MAURICE WILSON v. STATE OF MARYLAND
    [App. No. 22,
    September Term, 1980.]

      Decided June 11, 1980.

    Before Gilbert, C. J., and Melvin and Couch, JJ.
    Submitted by Kenneth Maurice Wilson, applicant.
    Submitted by Stephen H. Sachs, Attorney General, with whom was William A. Swisher, State’s Attorney for Baltimore City, for respondent.
   Couch, J.,

delivered the opinion of the Court.

Kenneth Maurice Wilson was convicted of rape and robbery in 1975 and sentenced to life imprisonment for the rape and ten years, concurrent, for the robbery, by the Criminal Court of Baltimore. He was also sentenced, in the same court under a different conviction, to ten years for perverted sex acts and two years for carnal knowledge, these sentences to run consecutive to each other but concurrent to the sentence for the rape conviction. These latter convictions were subsequently reversed because of a finding by the Court of Special Appeals that Wilson had been denied a speedy trial. Wilson v. State, 44 Md. App. 1, 408 A.2d 102 (1979). In December, 1978, pursuant to Wilson’s motion for a reduction of sentence, the trial judge reduced the life imprisonment sentence to twenty-one years. If nothing further had taken place, this matter, no doubt, would not be before us, but the trial judge further modified the robbery sentence, as well as those for the sex acts and carnal knowledge convictions, by making them run consecutive to the twenty-one year sentence for the rape conviction. Wilson sought relief from the sentencing judge, to no avail. Subsequently he filed a petition for post conviction relief raising, initially, the illegality of the above-modified sentence and, later, by a supplement to the petition, two additional issues. These supplemental issues were withdrawn at the evidentiary hearing held in March, 1980. The hearing judge denied Wilson any relief, stating in part:

"Despite the fact that a change from concurrent' to consecutive occurred, the overall effect of the modification was to lessen the Petitioner’s sentence. It is the totality of the picture that is important in the instant sentencing situation. The only case cited as authority to the contrary by Petitioner pointedly did not decide the issue. Dawson-vs-State, 17 Md. App. 316. Since the modification of the Petitioner’s sentence did produce an overall reduction of time to be served, there was no violation of Maryland Rule 774 (b).”

We believe the trial judge erred in denying relief and shall therefore grant this application for leave to appeal. In State v. White, 41 Md. App. 514, 397 A.2d 299 (1979), we specifically held "to change a sentence from a concurrent one to a consecutive one is a modification upward.” Furthermore, Maryland Rule 774 (b) clearly precludes the court from increasing the length of any sentence. See also Smith v. State, 31 Md. App. 310, 356 A.2d 320 (1976). In the instant case the hearing judge concluded that White was distinguishable because, there, three different sentences were given by three different judges on three different occasions for three different crimes, whereas petitioner was sentenced by one judge on a single occasion. In our view this is exalting form over substance; it would seem to make little difference to a defendant whether he was being sentenced by three judges for three different crimes rather than a single judge on a single occasion. If a sentence is illegal, it is illegal and cannot be allowed to stand. The hearing judge also found that the totality of the sentences had to be looked at and, in doing so, if there was a reduction of the total, then there was no impropriety. We disagree. We believe each sentence must be viewed singly and if it is illegal, it cannot stand. Maryland Rule 774 (b), by its terms, when referring to a sentence, consistently does so in the singular and makes no reference to multiple sentences. In our view the hearing judge had no authority to lump all the sentences together and treat them as a single sentence. Furthermore, we note that by now Wilson has served nearly five years of his concurrent robbery term, but if his modified sentence is allowed to stand he will be subject to serving his robbery sentence only after he has served his rape conviction, obviously a change to his detriment. Changing the ten year robbery sentence to consecutive from concurrent was a violation of Maryland Rule 774 (b).

Leave to appeal granted; case remanded with instructions to strike that portion of the sentence for robbery making it consecutive and substituting therefor ’’concurrent to the sentence imposed for the conviction of rape. ”


author: Moylan, J.,

text:
    JAMES JACKSON-EL, the younger v. STATE OF MARYLAND
    [No. 1076,
    September Term, 1979.]

      Decided June 12, 1980.

    The cause was argued before Morton, Moylan and MacDaniel, JJ.

      Patricia A. Logan, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Mark Cohen, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The profusion of alarm systems — state and federal, statutory and constitutional — prodding, measuring and sometimes short-circuiting the progress of investigation and trial provides a veritable tintinnabulation of the bells. Constitutional due process may ring the bell on inordinate pre-charging delay and post-verdict delays. The filing of charges, moreover, may not timely make it under the wire according to various statutes of limitations. There is the statutory alarm clock regulating interstate detainers. There is yet a different statutory alarm clock regulating intrastate detainers. There is the constitutional speedy trial limitation provided both by the Sixth Amendment of the Federal Constitution and Article 21 of the Maryland Declaration of Rights. There is an additional statutory alarm provided by Art. 27, § 591, and implemented by Md. Rule 746. Within this cacophony, Md. Rule 1085 — limiting our power of review to those questions actually presented to the trial court — still abides, even as it does not with respect to all other issues. To direct the trial judge to harken to the ringing of a single bell is not to invite judicial appraisal of the entire belfry. In reviewing a decision below, we must ask, with John Donne, not simply for whom the bell tolls but also which bell is tolling.

The appellant, James Jackson-El, the Younger, was convicted by a Baltimore City jury, presided over by Judge David Ross, of murder in the second degree. At the trial stage, specifically upon his motion of July 3, 1979, he claimed that time had run out on the State because Md. Rule 746, then requiring that an accused be tried within 120 days "after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723,’ was ringing. State v. Hicks, 285 Md. 310, 403 A.2d 356, had just been decided as of June 25, 1979, and provided that the dismissal of the indictment was the appropriate remedy for a violation of Rule 746. The appellant’s motion relied exclusively on this rule of court, and at the hearing on the motion on July 3, only this argument was made. Judge Ross ruled against the appellant on the ground that extraordinary cause for a delay beyond 120 days had been shown by the State. The merits of that ruling are now moot, for on July 19,1979, upon a motion for reconsideration of its opinion in State v. Hicks, supra, the Court of Appeals issued a per curiam supplemental note to that opinion, 285 Md. at 334, 403 A.2d at 368, pointing out that Hicks was to be applied only prospectively. The appellant does not now dispute the inapplicability of Hicks to his case. He now claims, rather, that time had run out on the State because a different bell was ringing — his constitutional right to a speedy trial under the Sixth Amendment. That question, however, was never presented to Judge Ross and was never ruled upon. The Sixth Amendment issue is not preserved for appellate review, Md. Rule 1085, and we will not examine its merits. To direct the court’s attention to the running of a specific clock is not, ipso facto, to direct its attention to the running of all other possible clocks.

The appellant’s remaining contentions will not detain us long. He claims that the evidence was not legally sufficient to permit the charge of murder in the second degree to go to the jury. He does not contest the sufficiency of the evidence to show the corpus delicti of the killing or his own homicidal agency. He urges rather that his own evidence of either excuse or mitigation was enough to entitle him to a judgment of acquittal as to murder. The jury was not obligated to believe the appellant’s self-serving testimony in this regard. Jacobs v. State, 6 Md. App. 238, 242, 251 A.2d 33. At best, he generated a jury question and was, therefore, not entitled to a judgment of acquittal taking this issue from the jury. Gilbert v. State, 36 Md. App. 196, 209-210, 373 A.2d 311.

The appellant’s contention that the trial judge erroneously permitted the prosecutor to cross-examine him as to his bad character is trivial in the extreme. The appellant volunteered on direct examination that he was "not allowed to go up in a certain neighborhood.” In a very tightly limited cross-examination on this issue, the prosecutor sought to have the appellant explain what he meant by that. The appellant’s answer was in classic Casey Stengelese and was utterly incomprehensible. The court curtailed- any further examination of the subject. Whether to permit a question to be asked is within the sound discretion of the trial judge, Dove v. State, 33 Md. App. 601, 606, 365 A.2d 1009, rev’d on other grounds, 280 Md. 730, 371 A.2d 1104, and we see no abuse of that discretion.

The appellant’s final contention is that the court erred in permitting two knives found two weeks after the killing in the basement of the house where the killing occurred and underneath a bed where the appellant slept to be introduced into evidence. He claims further that the court erred in permitting expert testimony by the postmortem examiner to the effect that some of the wounds on the body of the victim were consistent with the shape and size of one of the knives. We see no error in the admission of this evidence, particularly in view of the fact that the appellant himself identified one of the knives in question as the knife which he used to stab the victim. In view of the appellant’s admission of homicidal agency and his exclusive reliance on the defenses of either excuse or mitigation, his present contention is really beside the point.

Judgment affirmed; costs to be paid by appellant.

      . The rule was amended on November 16, 1979, to substitute 180 days for 120 days.


author: Thompson, J.,

text:
    MAYOR AND CITY COUNCIL OF BALTIMORE et al. v. JAMES CROCKETT et ux.
    [No. 1139,
    September Term, 1979.]

      Decided June 12, 1980.

    The cause was argued before Thompson, Lowe and MacDaniel, JJ.

      C. Laurence Jenkins, Jr., Assistant City Solicitor, and Michael A. Pretl, Special Deputy City Solicitor of Smith, Somerville & Case, with whom were Benjamin L. Brown, City Solicitor, and Richard M. Hartman, Chief City Solicitor on the brief, for appellants.

      Henry M. Decker, Jr., with whom were David K. Hayes and A. Dwight Pettit on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

On July 19, 1974, the Mayor of Baltimore approved Ordinance No. 701 which amended the City’s Comprehensive Rezoning Ordinance which had been passed and approved in 1971. The effect of the amendment was to prohibit sale or lease signs on individual residences in those parts of Baltimore which had been zoned "Residence and Office-Residence Districts.” The Comprehensive Zoning Ordinance had, prior to the amendment, permitted such signs. Curiously, the amendment permitted such signs within those districts on multiple-family dwellings, apartment hotels, and non-residential buildings.

James and Mary Crockett, appellees, owners of a residence at 1929 McCulloch Street, which is in a residential zone, posted a "For Sale” sign on the property. A violation notice was issued by the City and when the sign was not removed the appellants, the Mayor and City Council of Baltimore and James J. Dembeck, Zoning Administrator, (both together are hereinafter called the "City” and considered as one body) filed a bill of complaint in the Circuit Court of Baltimore City seeking an injunction. The Crocketts filed an answer admitting all of the material allegations in the bill but asserting that the zoning ordinance was unconstitutional. The Crocketts thereafter filed a motion for summary judgment and the City answered claiming that there was a dispute between the parties as to material facts.

A hearing was held before a master on March 27, 1979, at which time an affidavit of the Zoning Commissioner, James J. Dembeck, was filed, which included the following:

"In the 1971 version of the comprehensive rezoning ordinance, it was determined that 'For Sale’ signs would be permitted, with a limitation as to number and size. However, following passage of Ordinance No. 1051, [the Comprehensive Rezoning Ordinance], it was determined that 'For Sale’ signs should also be included in the Zoning prohibition, since many realtors were permitting their signs to remain on properties long after they had been sold, and in some instances, included 'Sold’ labels on the signs; thus, instead of accomplishing what the original ordinance had sought — that is the sale of residential homes — it was learned that, in addition, such signs were also being used as a form of commercial advertising, and inasmuch as it had been the Commission’s determination that commercial advertising was not to be permitted in residential neighborhoods, the Zoning Ordinance was amended to prohibit 'For Sale’ signs.”

At the same time a stipulation by the parties was filed including a copy of the Baltimore City Council file pertaining to Ordinance No. 701, as approved on July 19, 1974. The file contained no testimony but several letters from community groups generally expressing the idea that "For Sale” signs in neighborhoods undergoing ^ racial transition could create panic selling. There were several letters from real estate interests, expressing the view that it was improper to deprive homeowners of the means by which a substantial portion of home properties are sold.

Perhaps it is significant that in the City’s memorandum before the master, there was no argument that the ordinance was passed in order to remedy a panic selling situation. The master recommended that the bill be dismissed on the basis of Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977). At the hearing before the chancellor (Mary Arabian, J.), the City persisted in its position but amici curiae, Northeast, Incorporated and Harbel, Incorporated, argued that the ordinance was enacted in order to remedy a "panic selling” situation which existed in Baltimore. There was nothing in the City Council file that would support a finding that "panic selling” or "block busting” was then in progress in Baltimore City. After appropriate hearing, the chancellor adopted the report of the master and granted the motion for summary judgment. In her oral opinion, she stated in part as follows:

"The City contends that the Master was in error and that there is a genuine dispute of material facts in the case. Its principal claim is that the Supreme Court case of Linmark Associates, Inc. ’vs’ Willingboro, 431 U.S. 85 (1977), is not applicable to the instant case because Ordinance No. 701 (1974) is part of Baltimore City’s comprehensive zoning law, Ordinance No. 1951 (Chapter 10.0-2b(l) (1971) thereof having been amended) distinguishable from the Willingboro Ordinance, and as such regulates the time, place or manner of speech. Linmark stated that regulations of said nature 'stand on a different footing from laws prohibiting speech altogether’ and if satisfactory alternatives of communication are available, may withstand First Amendment attack. To support its position, the City proffers that it would present at a trial on the merits the history, purpose and effect of the Ordinance through members of the City Council and representatives of the Real Estate Commission. However, all of those facts were before the Master, by way of stipulation, and the Court has carefully reviewed them. Interestingly, the Planning Commission abstained from making a recommendation and the Zoning Board gave an unfavorable report to the City Council. The only distinction between the Willingboro Ordinance (a copy of which was supplied to the Court by the City and which was also a part of its zoning law) and Ordinance No. 701 is that the former directly prohibits 'For Sale’ signs while the latter does the same, in the words of the Master, 'by negative implication.’ When Ordinance No. 701 was enacted no new purpose for the law was enunciated. Rather, it is urged, the Ordinance merely terminated a previous exception. The Court finds, as the Master infers, that Ordinance No. 701, in and of itself, as it applies to the prohibition of the display of'For Sale’ signs in residential and office residential districts is not 'genuinely concerned’ with a regulation of time, place or manner of speech. Having so concluded, it is not necessary to consider alternative methods of communication but Linmark clearly addresses the inadequacy of the alternative methods of communication suggested by counsel in this matter. The Court concludes there is no genuine dispute of the material facts.”

In Linmark, the Supreme Court phrased the question to be decided as follows:

"[W]hether the First Amendment permits a municipality to prohibit the posting of 'For Sale’ or 'Sold’ signs when the municipality acts to stem what it perceives as the flight of white homeowners from a racially integrated community.” 97 S. Ct. at 1615.

In evaluating the record, the Supreme Court held that the ordinance violated the First Amendment. The Court stated:

"The record here demonstrates that respondents failed to establish that this ordinance is needed to assure that Willingboro remains an integrated community.9 As the District Court concluded, the evidence does not support the Council’s apparent fears that Willingboro was experiencing a substantial incidence of panic selling by white homeowners.”

The Court’s footnote is as follows:

"9 As the District Court itself observed, its finding concerning the lack of panic selling distinguishes this case from Barrick Realty, Inc. v. City of Gary, 491 F.2d 161 (CA7 1974), in which Gary, Indiana’s prohibition on 'For Sale’ signs was upheld on a record indicating that such signs were causing 'whites to move en masse and blacks to replace them.’ Id., at 163-164. We express no view as to whether Barrick Realty can survive Bigelow and Virginia Pharmacy Bd.” 97 S.Ct. at 1619-20.

This footnote indicates that if an emergency panic selling situation existed as in Barrick, a "For Sale” sign ban might be constitutional. The Court in Linmark, continued:

"The constitutional defect in this ordinance, however, is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd. [v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L. Ed. 2d 346 (1976)] acted to prevent its residents from obtaining certain information. That information, which pertains to sales activity in Willingboro, is of vital interest to Willingboro residents, since it may bear on one of the most important decisions they have a right to make: where to live and raise their families. The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners’ self-interest and the corporate interest of the township: they will choose to leave town. The Council’s concern then, was not with any commercial aspect of 'For Sale’ signs — with offerors communicating offers to offerees — but with the substance of the information communicated to Willingboro citizens. If dissemination of this information can be restricted, then every locality in the country can suppress any facts that reflect poorly on the locality, so long as a plausible claim can be made that disclosure would cause the recipients of the information to act 'irrationally.’ Virginia Pharmacy Bd. denies government such sweeping powers. As we said there in rejecting Virginia’s claim that the only way it could enable its citizens to find their self-interest was to deny them information that is neither false nor misleading:
'There is ... an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them ... But the choice among these alternative approaches is not ours to make or the Virginia General Assembly’s. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.’ 425 U.S., at 770, 96 S.Ct., at 1829.
Or as Mr. Justice Brandéis put it: 'If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.’ Whitney v. California, 274 U.S. 357, 377, 47 S. Ct. 641, 649, 71 L. Ed. 1095 (1927) (concurring opinion).
Since we can find no meaningful distinction between Ordinance 5-1974 and the statute overturned in Virginia Pharmacy Bd., we must conclude that this ordinance violates the First Amendment.” 97 S. Ct. at 1620-21.

The City argues here that its Ordinance is dissimilar to the Willingboro Ordinance because the Baltimore Ordinance is a part of a Comprehensive Zoning Plan, and that freedom of speech is not absolute but is subject "to reasonable limitations related to time, place and manner or mode of expression of the speech.” The argument is not persuasive. The dissenting opinion in Linmark Associates, Inc. v. Township of Willingboro, 535 F.2d 786, 805-06 (3d Cir. 1976), which is the same case that was later before the Supreme Court, shows that the amendment to the Willingboro Comprehensive Ordinance was also a zoning amendment, and it appears very similar to the Baltimore amendment which is before us. Indeed, the failure of the Supreme Court to even mention this circumstance would indicate that the City’s argument is without substantial basis. The Court did say "the Willingboro ordinance is not genuinely concerned with the place of the speech — front lawns — or the manner of the speech — signs. The township has not prohibited all lawn signs — or all lawn signs of a particular size or shape — in order to promote aesthetic values or any other value 'unrelated to the suppression of free expression.’ ” 431 U.S. at 93, 97 S. Ct. at 1619. The same can be said about the ordinance in question. The City further argues that in all first amendment litigation there must be a balancing of interests. Whatever merit this argument might have in another case, it has none here because we entirely agree with the chancellor that there is no substantial difference between the Willingboro Ordinance and the Baltimore Ordinance and no substantial difference in the considerations leading to its adoption despite the attempt of the Zoning Commissioner to ignore the real basis that motivated the Council to pass the ordinance and that motivated the citizens groups to support such an ordinance.

The City’s primary stress in its brief and in its oral argument here is that there was a genuine dispute as to facts and the chancellor should not have proceeded by summary judgment. Appellant argues that the record discloses a genuine dispute of material facts as to whether or not the for sale sign ban is necessary to enhance stabilization of integrated neighborhoods. This argument, too, must be from desperation. We note that in its pleadings and in its arguments to the court below the City avoided making this argument which, if based on the facts, might have brought the case within the holding of Barrick Realty, Inc. v. City of Gary, 491 F.2d 161, 163 (7th Cir. 1974), which upheld a ban on such signs on a record showing that the signs were causing "whites to move en masse and blacks to replace them.” We think it avoided the argument because there was nothing in the stipulated record to support it and we note particularly the trial judge’s finding.

"An additional issue is raised by Amicus Curiae. The present case, he claims, may fall within the possible Barrick Realty, Inc. -vs- City of Gary, 291 F.2d 161 exception to the Linmark holding in that if an emergency situation exists as a result of en masse panic selling, emergency legislation to meet the crisis may also withstand First Amendment attack. It must be stressed that the City has not embraced that argument, the City Council did not declare such acute circumstances as reasons for its legislation and the documents of the history of Ordinance 701, as presented to the Court, do not justify a belief that such an emergency existed.
* * *
"The Court wishes to take the opportunity to say that from its observations, the citizens of Baltimore generally are proud of their City and it is highly unlikely that they will become victims of unethical panic peddling and resort to panic selling.”

The City failed to allege in its pleadings the only triable issue of fact which could possibly have permitted the ordinance to be sustained under Linmark; we affirm the chancellor’s grant of the motion for a summary decree. Our position is supported by Harris v. City of Buffalo, 90 Misc. 2d 561, 394 N.Y.S.2d 794 (1977). In that case Harris, et al. sought to have a city ordinance which banned "For Sale” signs declared unconstitutional and the Court granted their motion for summary judgment stating:

"Even assuming the continued validity of that holding, [Barrick] however, the instant motion must be granted as the defendant City has offered absolutely no factual support of its conclusory allegations concerning 'block-busting’, 'panic selling’ and other evidentiary criteria upon which the Barrick decision and the City’s position herein are founded.”

Decree affirmed.

Appellants to pay the costs.

      . The amendments to Section 10.0-2bl of the Zoning Ordinance are shown by the following excerpt from Ordinance No. 701, brackets indicating matters stricken from the prior law and italics indicating new matter added to the prior law:
      "b. The following types of signs, subject to the limitations prescribed for them, shall be permitted for uses authorized as principal or conditional uses in Residence and Office-Residence Districts:
      "1. One non-illuminated sale or lease sign for [each street frontage of the lot, not exceeding a height of five feet, and having an area not exceeding six square feet. For] multiple family dwellings, apartment hotels, and non-residential buildings. Such [such] sign shall not exceed a height of eight feet if free standing, and shall not extend above the roof line if attached to a building and shall not exceed an area of 36 square feet.”

      . It appears that the Zoning Commissioner may have been shaping his statement to avoid the direct holding of Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977).


author: MacDaniel, J.,

text:
    HOWARD COUNTY, MARYLAND et al. v. WILLIAM P. DORSEY
    [No. 1141,
    September Term, 1979.]

      Decided June 12, 1980.

    The cause was argued before Thompson, Lowe and MacDaniel, JJ.

      Carol B. O’Keeffe, Assistant County Solicitor for Howard County, with whom was Timothy E. Welsh, County Solicitor for Howard County, on the brief, for appellants.

      Bernard F. Goldberg for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

Appellee William P. Dorsey is the owner of a parcel of land, 4.76 acres more or less, in the Sixth Election District of Howard County, Maryland. In March 1978, he filed a petition to the Howard County Zoning Board requesting a change of zoning for his property, from R-1.2 (Residential, 12,000 square feet minimum lot size) to M-l (light manufacture). The requested change was opposed by the Howard County Office of Planning and Zoning, the Planning Board of Howard County and several neighboring residents. Hearing on the petition was held and testimony presented on August 7, 1978. The Zoning Board rendered its decision denying the petition on September 8, 1978. On October 2, 1978, an appeal was taken to the Circuit Court for Howard County (Guy J. Cicone, J., presiding) in accordance with provisions of the Howard County Code. The circuit court heard arguments on April 24, 1979, and, in a Decision and Order dated September 17, 1979, reversed the Zoning Board’s decision. The circuit court ruled that the decision to zone the property R-12 was in error, and that the Zoning Board’s denial of proper zoning (M-l) was arbitrary and without proper foundation. The court ordered that the present zoning of the property be M-l, and remanded the case to the Zoning Board for proceedings consistent with its decision.

Howard County has filed this appeal alleging error in the circuit court’s reversal of the Zoning Board’s decision. We shall affirm the decision of the circuit court.

The 4.76 acre tract of smooth, somewhat graded, mostly undeveloped land lies nearby the Town of Guilford (see Appendix). Looking to the north and then clockwise, it is bordered by Berger Road, Oakland Mills Road, a plant/warehouse and a set of railroad tracks which runs through the northern part of Guilford, and some other warehouses. One dwelling sits on the property, in the northeastern corner; it is rented out. Five other houses sit nearby: one across from the property on the northern side of Berger Road, and four in a line due west from the property on the south side of that road. One of these four houses serves as the offices of a contracting company, and not as a residence. Berger Road, which provides access to all of these houses, is a dead end. The road was cut in half as part of the redevelopment of the area when Columbia, Maryland, was planned.

Immediately north of the property, east of the house on the north side of Berger Road, is a parcel of land zoned "New Town,” which currently is being developed by the Howard County Research and Development Corporation to accommodate business or industry of some kind. Farther to the north lies the Snowden River Parkway, a divided highway and major thoroughfare for Columbia. North of the Parkway stands the Village of Owen Brown, which is part of Columbia.

Oakland Mills Road, which abuts the eastern border of the property, runs roughly north to south, abutting the open end of Berger Road and intersecting the Snowden River Parkway. On the southeast corner of the intersection of the Parkway and Oakland Mills Road stands a sign proclaiming "Guilford Industrial Center.” East of the property, across Oakland Mills Road, is a warehouse or plant. Near this is another sign: "Guilford Industrial Center — East.” Slightly farther south lies a parcel of land under development as another warehouse or plant. Farther to the east of these properties is a parcel belonging to the General Electric Company, known as Appliance Park — East.

Immediately south of the Dorsey property run the tracks of the Baltimore and Ohio Railroad. Between the property and the tracks sits the manufacturing plant and warehouse of the Ryland Company, which builds prefabricated houses. Other warehouses also lie in this vicinity, and together they generate considerable rail and truck traffic. The railroad tracks skirt the northern portion of Guilford; the area contains small and medium-size houses which are much older than those situated in Owen Brown and Columbia, to the north.

Finally, to the west of the single house on the north side of Berger Road lies an empty grassed lot designated New Town Open Space. And farther to the west, past the dead end of Berger Road, the land slopes downward and leads to a large site of manufacturing and industrial firms, notably Eastern Products Corporation.

In summary, we think the circuit court aptly described the property in its Decision and Order when it wrote:

"The situation, as evident from a description of the surrounding properties and their uses, is a parcel of residentially zoned land almost totally surrounded by manufacturing uses and separated from any residential development by a divided highway to the north and railroad tracks to the south. The publicly-declared use of that area, as the signs indicate, is industrial or light manufacturing. Development is continuing for industrial uses for this property. No residential development is occurring in the immediate vicinity of the subject parcel. It sits alone as a residentially zoned piece of land (along with the small cluster of five houses) while industrial use and development continues around it.”

According to the record, the Dorsey property was originally zoned R-20 (Residential, 20,000 square feet minimum lot size). In the mid-1970’s however, the Howard County Office of Planning and Zoning (OPZ) developed a comprehensive rezoning plan, and as a part of which they recommended that the property be reclassified R-12. Appellee opposed this and requested an M-l zone. Nevertheless, in October 1977, the Howard County Council adopted the comprehensive rezoning plan as recommended by the OPZ.

Appellee attacked the comprehensive plan by filing a petition with the Howard County Planning Board in March 1978, requesting an M-l zone for his property. The Planning Board reviewed the petition and the opinion of the OPZ on the matter, and ultimately recommended to the

Howard County Zoning Board that the petition be denied. We quote from the Planning Board’s recommendation in part, as follows:

"The Board notes that the parcel in question is practically surrounded by Industrial Zoning classifications and is of the opinion that the parcel in question probably should have been zoned in such a classification.
On the other hand, the zoning authority apparently considered this parcel in its study and review prior to the adoption of the Comprehensive Zoning on October 3, 1977, and chose to classify it in the R-12 District, it previously having been zoned in the R-20 District.
The Planning Board’s review of the above cited documentation reveals no evidence of a mistake in the legal sense, in reference to the zoning of this parcel as part of the Comprehensive Zoning Maps adopted October 3, 1977.
The Planning Board also finds no evidence of change in the character of the neighborhood of the subject parcel subsequent to October 3, 1977.”

Appellee’s petition and the Planning Board’s recommendation were then forwarded to the Howard County Zoning Board for its decision. In its September 8, 1978, Decision and Order the Zoning Board reviewed the evidence and testimony presented at its August 7, 1978, hearing on the petition, and denied appellee’s request after making the following findings of fact and conclusions of law:

"1. That the [Zoning] Board had considered the subject parcel in the course of its deliberations in formulating the comprehensive zoning map, a part of the Comprehensive Zoning Plan adopted October 3, 1977, held a specific public hearing thereon and at that time the parcel had been reclassified from an R-20 to an R-12 residential classification.
2. The Board further finds that there was no mistake in placing this parcel in the R-12 zoning classification at that time.
3. The Board agrees with the finding of the Department of Planning and Zoning of Howard County that the proposed zoning change is not in accordance or in harmony with the land use as shown on the Howard County General Plan adopted December 6, 1971, as amended on August 2, 1976.. ..
4. The Board finds that there was no evidence of change in the character of the neighborhood subsequent to the adoption of the aforesaid amendment to the General Plan of Development of Howard County and subsequent to the adoption of the Comprehensive Zoning Plan of Howard County on October 3, 1977.
5. That a reclassification of the subject property as requested would further isolate a substantial residential area from the Guilford residential neighborhood and would have an adverse effect on other residential property fronting on Berger Road.”

In accordance with provisions of the Howard County Code appellee appealed the Zoning Board’s decision to the Circuit Court for Howard County, where, after a hearing on April 24,1979, the Zoning Board’s decision was reversed. In his Petition in Support of Appeal appellee alleged, inter alia, that: the decision of the Zoning Board was devoid of any competent, material and substantial evidence, in view of the entire record as submitted; the Zoning Board’s findings were contrary to the evidence presented at the hearing; its decision was so grossly erroneous, when viewed in the light of the evidence produced at the time of the hearing, as to imply bad faith, and that its failure to grant the application as requested denied the appellee all reasonable use of his property and was therefore tantamount to confiscation without compensation.

In its September 17,1979, Decision and Order, which was admirably thorough and well-reasoned, the circuit court carefully reviewed the situs of the property, the zoning background and the structure of court review of zoning decisions in Maryland, and made the following findings of fact and conclusions of law. The court found the evidence insufficient to establish that the Zoning Board’s (or the County Council’s) actions were confiscatory, or so erroneous as to imply bad faith. Nor, in the court’s view, was there any evidence to indicate change in the character of the neighborhood since the enactment of the comprehensive plan. However, the court ruled that the record did establish "mistake” in the council’s 1977 decision to zone the property R-12. The circuit court held that the entire record presented strong and substantial evidence that the council either "failed to take into account pertinent evidence, failed to recognize trends that were reasonably foreseeable, [or] failed to consider the full body of the evidence and to give appropriate weight to that evidence” in reaching its decision. The court therefore ruled:

"[T]hat the zoning of this property in 1977 from R-20 to R-12 was in error; that the issue of the proper zoning of this parcel is not fairly debatable and that the appellant has met his burden of demonstrating that the evidence does not substantially support the action of the Board. The denial of proper zoning of this property in 1977 and in the present petition was arbitrary and without proper foundation.”

The court ordered that the present zoning of appellee’s property be M-l, that the Zoning Board’s September 8,1978, decision be reversed, and that the case be remanded to the Board for proceedings consistent with the court’s opinion.

In this appeal appellants argue, in essence, that the record below contains no strong or substantial evidence of "mistake” in the council’s 1977 decision; and that, under the standard applicable in this case, the council’s decision was "fairly debatable,” and therefore not subject to reversal by the circuit court. Appellants further argue that assuming such mistake was established, nevertheless, the circuit court rezoned the property M-l when it was without power to do so. We find merit in neither argument.

We shall begin to address these issues with observations on the standard of judicial review applicable in cases such as this. The standard, as applied to decisions of administrative agencies in general, and to those of zoning boards in particular, has been stated and restated in many decisions of this Court and the Court of Appeals. Most recently, in Annapolis v. Annapolis Waterfront Co., 284 Md. 383 (1979), the Court of Appeals wrote, at 394-96:

"[W]e have held that courts of this state are without power to interfere with 'any exercise of the legislative prerogative within constitutional limits, or with the lawful exercise of administrative authority or discretion.’ However, such administrative discretion does not go unchecked. The judicial branch of the government ordinarily may, through appeal, the writ of mandamus, by injunction, or otherwise, correct any abuse of discretion by administrative agencies or review

their actions when arbitrary, illegal, capricious or unreasonable. Heaps v. Cobb, supra, 185 Md. at 379; Dickinson-Tidewater v. Supervisor, supra, 273 Md. at 255; Hecht v. Crook, supra, 184 Md. at 280-81. However, the scope of judicial review of decisions by administrative agencies is narrow, recognizing that board members have expertise in a particular area and ordinarily should be free to exercise their discretion as such. Finney v. Halle, 241 Md. 224, 216 A.2d 530 (1966). Accordingly, this Court adheres to the proposition that a reviewing court will not substitute its judgment for that of an administrative board where the issue is fairly debatable and the record contains substantial evidence supporting the administrative decision. E.g., Mont. Co. v. Woodward & Lothrop, 280 Md. 686, 376 A.2d 483 (1977), cert. denied sub nom. Funger v. Montgomery Co., 434 U.S. 1067 (1978); Agneslane, Inc. v. Lucas, 247 Md. 612, 233 A.2d 757 (1967). See also Heath v. M. & C.C. of Baltimore, 187 Md. 296, 49 A.2d 799 (1946); Oppenheimer, supra, at 209.

When reviewing an administrative decision for arbitrariness or capriciousness, a court must first determine whether the question before the agency was fairly debatable. In Eger v. Stone, 253 Md. 533, 542, 253 A.2d 372 (1969), we defined the term 'fairly debatable’:

We have made it quite clear that if the issue before the administrative body is 'fairly debatable’, that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body, in the absence of an unconstitutional taking of private property for public use without the payment of just compensation. . . . [emphasis supplied]” (Footnotes and citations omitted).

Or, as this Court stated in Kanfer v. Montgomery County Council, 35 Md. App. 715, 730 (1977), citing Bosley v. Hospital for Consumptives, 246 Md. 197, 204 (1967): "... the appellate court may not substitute its judgment for that of the zoning body and should affirm when the latter’s decision is supported by substantial evidence.” And, lately, in Sedney v. Lloyd, 44 Md. App. 633, 637 (1980), we had occasion to note:

"The 'fairly debatable’ test is analogous to the 'clearly erroneous’ standard commonly applied under Md. Rules 886 and 1086. A court must consider all of the evidence before the zoning authority; the decision is 'fairly debatable’ if it is supported by substantial evidence on the record taken as a whole.” (Citations omitted.)

In Sedney we cited Board v. Oak Hill Farms, Inc., 232 Md. 274, 283 (1963), wherein the Court of Appeals wrote:

"Whether the test of substantial evidence on the entire record or the test of against the weight of all the evidence is followed, the courts have exercised restraint so as not to substitute their judgments for that of the agency and not to choose between equally permissible inferences or make independent determinations of fact, because to do so would be exercising a nonjudicial role. Rather, they have attempted to decide whether a reasoning mind could reasonably have reached the result the agency reached upon a fair consideration of the fact picture painted by the entire record.”

And, as the Court of Appeals stated in County Comm’rs v. Brown, 253 Md. 632, 640 (1969), citing Oak Hill Farms, supra: "[i]n the context of a zoning case, 'substantial evidence’ means 'more than a scintilla’; such evidence 'as a reasonable mind might accept as adequate to support a conclusion’; and 'enough to justify, if the trial were to a jury, a refusal to direct a verdict.’ ”

In Hoy v. Boyd, 42 Md. App. 527, 533 (1979), we observed: "There is a strong presumption of the correctness of comprehensive rezoning. Consequently, the burden of proving mistake or change is a heavy one. Stratakis v. Beauchamp, 268 Md. 643, 652-3, 304 A.2d 244 (1973); Boyce v. Sembly, 25 Md. App. 43, 49-50, 334 A.2d 137 (1975).” Unless this burden is met, a zoning authority’s action must be presumed to remain "fairly debatable,” and the action cannot be attacked on grounds of "mistake,” Cabin John Ltd. v. Montgomery Co., 259 Md. 661, 671-72 (1970).

We discussed the concept of zoning "mistake” or "error” at some length in Boyce v. Sembly, 25 Md. App. 43, 50-52 (1975):

"[I]t is necessary to understand the inherent nature of the terms 'mistake’ ór 'error’ as they are used in zoning law. A perusal of cases, particularly those in which a finding of error was upheld, indicates that the presumption of validity accorded to a comprehensive zoning is overcome and error or mistake is established when there is probative evidence to show that the assumptions or premises relied upon by the Council at the time of the comprehensive rezoning were invalid. Error can be established by showing that at the time of the comprehensive zoning the Council failed to take into account then existing facts, or projects or trends which were reasonably foreseeable of fruition in the future, so that the Council’s action was premised initially on a misapprehension. Bonnie View Club v. Glass, 242 Md. 46, 52-53, 217 A.2d 647, 651 (1966);. Jobar Corp. v. Rodgers Forge Community Ass’n., 236 Md. 106, 112, 116-18, 121-22, 202 A.2d 612, 615, 617-18, 620-21 (1964); Overton v. County Commissioners, 225 Md. 212, 216-17, 170 A.2d 172, 174-76 (1961); see Rohde v. County Board of Appeals, 234 Md. 259, 267-68, 199 A.2d 216, 218-19 (1964). 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. As the Court of Appeals said in Rockville v. Stone, 271 Md. 655, 662, 319 A.2d 536, 541 (1974):
'On the question of original mistake, this Court has held 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.’
See Rohde, supra, at 234 Md. 267-68, 199 A.2d 220-21; England v. Rockville, 230 Md. 43, 45-47, 185 A.2d 378, 379-80 (1962); Pressman v. Baltimore, 222 Md. 330, 338-39, 160 A.2d 379, 383 (1960); White v. County Board of Appeals, 219 Md. 136, 144, 148 A.2d 420, 423-24 (1959); cf. Dill v. The Jobar Corp., 242 Md. 16, 20-21, 24, 217 A.2d 564, 567-68 (1966); Marcus v. Montgomery County Council, 235 Md. 535, 540-41, 201 A.2d 777, 780 (1964); Offutt v. Board of Zoning Appeals, 204 Md. 551, 558, 105 A.2d 219, 221-22 (1954); Wakefield v. Kraft, 202 Md. 136, 144-45, 149, 96 A.2d 27, 30 (1953); Hoffman v. City of Baltimore, 197 Md. 294, 307, 79 A.2d 367, 373-74 (1951).
It is presumed, as part of the presumption of validity accorded comprehensive zoning, that at the time of the adoption of the map the Council had before it and did, in fad, consider all of the relevant facts and circumstances then existing. Thus, in order to establish error based upon a failure to take existing facts or events reasonably foreseeable of fruition into account, it is necessary not only to show the facts that existed at the time of the comprehensive zoning but also which, if any, of those facts were not actually considered by the Council. This evidentiary burden can be accomplished by showing that specific physical facts were not readily visible or discernible at the time of the comprehensive zoning, Bonnie View Club, supra, at 242 Md. 48-49, 52, 217 A.2d 649, 651 (mineshaft and subsurface rock formation); by adducing testimony on the part of those preparing the plan that then existing facts were not taken into account, Overton, supra, at 225 Md. 216-17, 170 A.2d 174-75 (topography); or by producing evidence that the Council failed to make any provision to accommodate a project, trend or need which it, itself, recognized as existing at the time of the comprehensive zoning, Jobar Corp., supra, at 236 Md. 116-17, 202 A.2d 617-18 (need for apartments). See Rohde, supra, at 234 Md. 267-68, 199 A.2d 221. Because facts occurring subsequent to a comprehensive zoning were not in existence at the time, and, therefore could not have been considered, there is no necessity to present evidence that such facts were not takén into account by the Council at the time of the comprehensive zoning. Thus, unless there is probative evidence to show that there were then existing facts which the Council, in fact, failed to take into account, or subsequently occurring events which the Council could not have taken into account, the presumption of validity accorded to comprehensive zoning is not overcome and the question of error is not ’fairly debatable.”’ (Footnotes omitted; emphasis added.)

With the applicable standard of review, presumptions and burden of proof clearly in mind, we turn to consider the record of the evidence presented.

The evidence and testimony presented at the hearing established the following facts. The Howard County Council adopted a General Plan for the county on December 6,1971. According to the zoning map accompanying the plan, the Dorsey property was zoned R-20, and shown clearly north of, and separate and apart from, the neighborhood of Guilford. The latter’s northern boundary was drawn to coincide with the Baltimore and Ohio Railroad tracks previously described. The property was shown lying in an area labeled "Special Study South,” which incorporated very large areas of industrial, New Town land, including the General Electric plant.

In 1973, efforts to rezone residential land within the neighborhood, as well as the general encroachment of surrounding industry, impelled Guilford residents to approach the Community Development Committee (CDC) for help. At CDC’s initiative, OPZ began a pilot area study (later to be known as the Guilford Pilot Study) to determine whether preservation of the Guilford neighborhood made economic sense to the county and, if it did, to propose a plan to achieve that end. As a result of the study, OPZ determined that Guilford could and should be preserved; that, as part of such preservation, the Guilford Elementary School should be retained; and that, to justify the school’s continued exi&tence, it was necessary to increase residential density within the community (or, at the very least, to preserve the residential density then existing). The comprehensive plan developed from the study was reviewed and ultimately approved by the Planning Board and County Executive, and accepted by the CDC.

The CDC wanted a second opinion and so retained the services of Louis Earl Armiger, Jr., a qualified planning consultant. Appellants’ statement, that "Armiger’s conclusion essentially confirmed the validity of the pilot study; both emphasized the need to achieve higher density in the Guilford Community” is, in our view, somewhat disingenuous. Armiger testified for appellee Dorsey. He stated that he had been hired by the CDC to prepare an evaluation of the Guilford Plan prior to the passage of Howard County Council Resolution No. 43, of the 1976 Legislative Session, wherein the 1971 Comprehensive Zoning Plan was amended to include the Dorsey property as part of a new Guilford Land Use Plan. Armiger testified that Dorsey’s property, and the 9 or 10 acres which comprised the rest of the residential "island” north of the railroad tracks (the "Berger Road area”), was never considered a part of Guilford by the 1971 General Plan. In fact, he stated that of all the maps which he was shown while making his study, none so much as showed the property in any detail. Furthermore, he stated that the CDC had never included, much less considered, the property as part of the Guilford Plan prior to the 1976 amendment; they had only recommended that the Guilford Plan include land south of the railroad tracks. The record of Armiger’s testimony, though at times hard to follow, is nevertheless instructive, and bears repetition here. We quote it in part, as follows:

"(Mr. Arminger [sic]) O.K. there might be a little confusion on my part had that this property was ever in the Guilford Plan. The maps that I showed are the maps that I was showed when I was hired by CDC to evaluate the Guilford Plan. I was evaluating a plan as as contained in the; Well the Guilford Plan actually came out as a part of the March 1st, 1975 Howard County Housing Plan. In that plan the Guilford Plan as indicated on page . .. five dash thirtysix and this is the plan that we went by. It did not include any areas north of the railroad tracks. So the plan we evaluated was from the railroad track south. So we didn’t even consider it, this area up here as part of the Guilford Plan. And . . . my understanding really, it never was a part of the Guilford Plan. It was taken in separate because this is where developed houses. So when we evaluated Guilford Plan our objective . . . purpose we were hired was to determine whether nor not it made sense for .. . to implement the Guilford Plan was called for protecting and preserving the Guilford as resident the Guilford neighborhood as residential as oppose to letting a natural course force .. . more industrial before it can take place and letting it go.
There was a lot of thinking, I think on the Community Development Committee’s part of the time that made more sense to the county to let it go. That it is too small of an area for to really to justify the tremendous public expenditure to make it a viable neighborhood. So in our study we determined that yes it did make sense for the county to protect the Guilford neighborhood. The Guilford residential neighborhood. Only if a couple of things happen only if the county did a couple of things. That is number one, stipulate it new residential development in the area so that you can justify the expenditure for public facilities that were needed in all that wood area would be a viable neighborhood. Secondly, that you cut off the industrial encroachment from the north here and the place to cut it off logically was to be those railroad tracks. However, since HRD has New Town land which is indicated as referring ... south of the railroad tracks extending into the area that we consider as the Guilford neighborhood south of the railroad tracks since thats [sic] already committed to employment. We determined that the place to cutoff this encroachment was between this New Town land and these properties known as Cams and people. Property shown here is R-A-l. So that was our recommendation regarding this area in the Guilford Plan. This would always consider as a part of an industrial area. The cutoff logically would have been the railroad tracks south of the subject property but since a pattern was already committed to non-residential use south of the railroad tracks we recommended cutting it off as the northern boundary.”

Armiger also testified that the proper use of the subject property was M-l, and that zoning the property R-12 had been a mistake. He stated, in his opinion, the property could not reasonably be used for residential development because of the presence of surrounding industrial uses and lack of adequate access to the land. Appellee testified likewise.

The testimony of appellants’ expert witness, Joseph Rutter, an OPZ planner, is even more interesting. Rutter testified that he had been involved with the Guilford project from its inception in 1973. He stated that, as a result of the Guilford Pilot Study, the General Plan of 1971 was amended to include the Berger Road area because it was "stable residential,” and because it was necessary to include the property in the plan to insure the continued existence of the Guilford Elementary School and, ultimately, the Guilford community. More importantly, although Rutter testified that neighborhood boundaries are not defined until and except by amendment to the General Plan, yet, like Armiger, he testified that the General Plan of 1971 did not establish the Guilford neighborhood north of the railroad tracks. In essence, he stated that although the 1976 amendment included the property within the Guilford Land Use Plan, the amendment did not include it in the Guilford neighborhood, since the 1971 neighborhood boundaries were not affected by Resolution No. 43. We quote from his testimony on direct examination:

"[Resolution No. 43] ... is an amendment to the 1971 General Plan to change the land uses for the Guilford Community. As part of this resolution what was also adopted and made part of the resolution is a map of the Guilford Community . .. I believe that this map and resolution clearly show the subject property is part of the Guilford Community. Furthermore there has been some reference to the comments of the Office of Planning and Zoning in this case and in the findings a statement from the Office of Planning and Zoning signed by Mr. Harris states that the proposed zoning change is not in accordance or in harmony with the land use as shown on the Howard County General Plan adopted December 6, 1971 amended August 2nd, 1976. The amended General Plan does show this property and the surrounding properties as stabled [sic] residential. I might point out that the 1971 General Plan also shows this series of properties as stabled [sic] residential. The major difference as far as this group of property is concerned is that in the 1971 General Plan the general line that follows the railroad did exclude these properties but as a result of the study which began in 1974 the recommended Guilford Plan and Pilot Project which was included in the housing plan which has also been introduced as recommended by the Office of Planning and Zoning did intend to include these properties and as a result of that pilot project the Office of Planning and Zoning recommended the adoption of the amendment to the General Plan which was done in August of 1976. The neighborhood seventyfour as referred to in the Office of Planning and Zoning report is also clearly what the adopted amendment to the general plan was. A neighborhood numbered seventyfour there are no references by name to neighborhoods in the 1971 General Plan and therefore continuity even though we call it the Guilford neighborhood amendment to the general plan it is referred to by number... .
(Mr. Green) At what point in time if you can possible [sic] date it, were the boundaries of the Guilford neighborhood determined?
(Mr. Rutter) For the purpose of our study it would have been approved in the Fall of 1974 and this is the time when the community survey was conducted for the purposes of the community survey. The neighborhood or study area boundaries as they were referred to in the pilot project it is study area boundaries ... were defined so that who would be interviewed would be determined. However the neighborhood boundaries aren’t defined until you amend the general plan. That’s the only place that they can be defíned.
(Mr. Green) Were you present at any occasion where there was discussion regarding the inclusion and exclusion of the neighborhood north ... that portion north of the railroad track?
(Mr. Rutter) There was no discussion of whether or not to include that area in the office of planning and zoning’s ... preparation and ... review of the pilot study. It was right from the beginning included because of being a stable residential area adjacent to the neighborhood seventyfour and because of being stable residential area on the seventyone general plan — not being compatible with the surrounding commercial industrial land uses in special study area south shown on the general plan.
(Mr. Green) Mr. Arminger [sic] has testified that certain specific emphasis were to be given to portions of the neighborhood south of the railroad tracks. Is this inconsistent with the inclusion of that area north of the railroad tracks?
(Mr. Rutter) No it is not and in fact because of the nature of the Guilford Community any attempts to enlarge the community in a logical manner were made. The existing population was so low and one of the critical elements of the Guilford community is the neighborhood school and I think one of the initial motivated forces for the community to request and become involved with the offíce of planning and zoning was the fear of losing that school. So the additional residences although there is only four or five residents in this northern pocket here, it could be added in to the school generation. It certainly would not eliminate fifteen acres of potential development land.” (Emphasis added.)

However, upon cross-examination Rutter admitted:

"(Mr. Goldberg) I now want to show you a plat which you say is part of Resolution number
(Mr. Rutter) Fortythree.
(Mr. Goldberg) Fortythree. I’m going to show you Resolution number fortythree. Show me that any place on the map where it says that Guilford Plan is that this is the subject property subject property is in neighborhood number seventyfour as the planning staff says it is —
(Mr. Rutter) The —
(Mr. Goldberg) the resolution. In one word saying that its [sic] in seventyfour.
(Mr. Rutter) No the resolution is stated ... an amendment to the 1971 General Plan.
(Mr. Goldberg) But it doesn’t. Does it change the neighborhood?
(Mr. Rutter) No it doesn’t change the neighborhood.
(Mr. Goldberg) Does it put the, does it show — does it say anything in there that it puts this piece of property in the neighborhood number seventyfour?
(Mr. Rutter) It puts it in the land use of the Guilford Community.
(Mr. Goldberg) Land use of the Guilford Community but not the neighborhood number seventyfour.
(Mr. Rutter) The neighborhood number is not in the resolution no. To my knowledge.
(Mr. Goldberg) Alright then, I’m looking at the plat that’s attached to resolution number seventy .. . number forty three. You have not shown the fact that the only link between this neighborhood of Guilford and the property that’s the subject of this hearing and the fifteen acres the grand total of fifteen acres maximum is only connected by the road. You don’t show any industrial in between.
(Mr. Rutter) 1 think its [sic] clearly its [sic] clearly shown that —
(Mr. Goldberg) Let me finish and I’ll give these questions —
(Mr. Rutter) It is clearly shown on the map that it is only connected by the road. The road is the connection.
(Mr. Goldberg) And you say then this was done because you needed this population to show the requirements of the school?
(Mr. Rutter) Its its [sic] part of the school service area that I refer to is the basis for these neighborhood delineations on the 1971 General Plan.” (Emphasis added.)

Upon review of this and other evidence in the record the circuit court ruled that the County Council had committed "mistake” in 1977 by zoning the property R-12, and that the Zoning Board "refused to zone the property industrial in the wake of clear and strong evidence that a residential zone is improper in this instance.” We wholeheartedly agree with the circuit court.

It was obvious from Armiger’s testimony that the property is not now, nor has it ever been, included within the boundaries of the neighborhood of Guilford. Rutter’s testimony supported him in this. However, the area residents who testified claimed that they had "always considered” the property part of the Guilford neighborhood ,and the Board apparently relied upon this evidence, disregarding Armiger’s and Rutter’s statements. This was error. As we said in Boyce v. Sembly, supra, 25 Md. App. at 53:

"... ¿he opinion or conclusion of an expert or lay witness is of no greater probative value than that warranted by the soundness of his underlying reasons or facts. Surkovich v. Doub, 258 Md. 263, 272, 265 A.2d 447, 451 (1970); Anderson v. Sawyer, 23 Md. App. 612, 618, 329 A.2d 716, 720. The Court of Appeals and this Court have stated that an opinion, even that of an expert, is not evidence strong or substantial enough to show error in a comprehensive rezoning unless the reasons given by the witness as the basis for his opinion, or other supporting facts relied upon by him, are themselves substantial and strong enough to do so. Stratakis, supra, at 268 Md. 655, 304 A.2d 250; Coppolino v. County Board of Appeals of Baltimore County, 23 Md. App. 358, 371-72, 328 A.2d 55, 62 (1974).” (Emphasis added.)

The circuit court correctly noted that "what is a neighborhood is not subject to strict definition and is different in different circumstances,” citing Border v. Grooms, 267 Md. 100, 109-10 (1972) and Clayman v. Prince George’s County, 266 Md. 409, 417-19 (1972). But, as we recently noted in Sedney v. Lloyd, supra, 44 Md. App. at 639: "The neighborhood must be limited to the 'immediate environs of the subject property’ and cannot extend for miles in all directions. Pattey v. Board of County Commissioners of Worcester County, supra, 271 Md. at 363, 317 A.2d at 148.” And, at 640: "Normally, the greatest deference must be allowed the zoning authority’s judgment regarding the scope of the neighborhood to be drawn; however, the legal requirement remains that the neighborhood delineated by the authority must be 'reasonable’,” citing Pattey, Id. Without repeating the description of the property and its environs earlier given, we think it obvious that the property was not part of the Guilford neighborhood; that it was unsuited for residential development; that the character of the surrounding parcels made it extremely unlikely that residential development would occur in the vicinity, and that therefore the property ought to have been zoned M-l, in conformity with the usage of surrounding land. From the record of the testimony it appears that the Board appreciated the fact that a residential zone was improper in this instance, but that it nevertheless imposed that classification in an attempt to add to the residential area feeding the Guilford Elementary School. Rutter testified that the only basis for adding the Berger Road area to the Guilford Land Use Plan was to justify the continued existence of the school. This was improper. The Court of Appeals stated in Chayt v. Maryland Jockey Club, 179 Md. 390 (1941), at 395:

"In order to impose restrictions some valid exercise of the police power must be proven. But such power is invoked for the protection of the property restricted and not to give protection to surrounding property.”

And, in England v. Rockville, 230 Md. 43 (1962), at 47, the Court held:

.. benefit to neighboring residents is not a proper test. Restrictions imposed under the police power must be related to the general welfare and cannot be supported on the basis of benefit to surrounding property.”

And, in Benner v. Tribbitt, 190 Md. 6 (1947), at 20:

"There is no magic in the word 'zoning’, but there is a wide difference between exercise of the police power in accordance with a comprehensive zoning plan, which imposes mutual restrictions and confers mutual benefits on property owners, and arbitrary permission to A and prohibition to B to use their own property, at the pleasure of neighbors or at the whim of legislative or administrative agencies.”

Under all the circumstances of this case, therefore, we agree with the circuit court that it was not fairly debatable, not something over which reasonable minds could differ, that this property should be zoned M-l, consistent with contiguous parcels. The Zoning Board’s failure to do so was arbitrary, capricious and an abuse of discretion.

Finally, appellants argue that the circuit court "violated the separation of powers doctrine by ordering the Dorsey property rezoned M-l.” Appellants cite the Court of Appeals’ decision in Montgomery County v. Shiental, 249 Md. 194, 199 (1968), as authority for the proposition that "courts lack the power to rezone property, even upon a showing that the challenged classification is arbitrary and capricious.” Not only is this a misstatement of the Court’s holding, but Shiental is altogether inapposite. The question before the Court in Shiental was whether the zoning authority had erred in refusing the appellant’s request that his property be rezoned. The Court first enunciated the standard for review which we have outlined in this opinion. Then it ruled that the appellants had failed to present sufficient evidence to establish that the zoning authority’s denial of rezoning was arbitrary and capricious, so that the authority’s decision remained "fairly debatable,” not subject to reversal. But when, in so doing, the Court wrote that "[t]he lower court had no power to rezone,” it was merely restating the rule that courts may not substitute their judgment for the expertise of the zoning authority, and that the latter’s decisions must be upheld unless substantial evidence to the contrary is presented. Such evidence was presented in this case.

Furthermore, the circuit court’s review of the Zoning Board’s decision in this case was governed by the provision of the Howard County Code, § 16.207, "Judicial Review,” which specifically provides in part, in subsection (b):

"The review of the record of proceedings made before the zoning board shall be conducted by the court without a jury. In cases of alleged irregularities in procedure before the zoning board amounting to a denial of due process, not shown on the record, testimony thereon may be taken in the court. The court shall, upon request, hear oral argument and receive written briefs. Upon the hearing of such appeal, the action of the zoning board shall be presumed by the court to be proper and to best serve the public interest. The court may affirm the decision of the zoning board or remand the case for further proceedings, or it may reverse or modify the decision if the substantial rights of the appellants to a fair hearing before the board and a fair decision by the board may have been prejudiced because the zoning board’s findings, inferences, conclusions or decisions were or are:
(5) So grossly erroneous as to imply bad faith; or
(6) Only in cases involving map amendments or a decision which changes the regulations, unsupported by competent, material and substantial evidence in view of the entire record as submitted; or
(7) Only in cases involving map amendments or a decision which changes the regulations, arbitrary or capricious; or
(8) Affected' by other error of law.” (Emphasis added.)

Under the circumstances, the circuit court’s Order, "that the present zoning of this property be M-l, that the decision of the Howard County Zoning Board of September 8, 1978 be, and it is hereby, REVERSED and that the case is REMANDED to the Zoning Board for proceedings consistent” with its opinion, was proper.

Judgment affirmed.

Appellants to pay the costs.

APPENDIX

LEGEND

      . ZB Case No. 710.

      . In view of the fact that, ultimately, appellee was appealing the Howard County Council’s decision to zone his property R-12 (since the change from R-20 to R-12 was made when the County Council adopted the Comprehensive Zoning Plan) it is interesting to note that the Howard County Council and the Howard County Zoning Board are one and the same thing. The County Council sits as the Zoning Board to decide questions pertinent to the County and to institute zoning maps, general plans, development plans, zoning areas and zoning changes with respect to large and small areas of Howard County. Its authority in this is granted by the Howard County Code, §§ 16.200 to 16.206, and its decisions are subject to judicial review in accordance with § 16.207.

      . Howard County Code, § 16.207, Judicial Review.

      . In the Circuit Court for Howard County, No. A-9309, filed October 13, 1978.

      . The seeming incoherence of this testimony should not reflect unfavorably upon the persons testifying. We think the fault lies entirely with the manner in which the testimony was recorded and transcribed.

      . In addition to the testimony which we have reviewed, the record contains the testimony of area residents to the effect that they had always considered the property part of the Guilford neighborhood. The circuit court also recited the following passage from the Recommendation of the Planning Board:
      "The Board notes that the parcel in question is practically surrounded by Industrial Zoning classifications and is of the opinion that the parcel in question probably should have been zoned in such a classification.”

      . We cannot emphasize too strongly that, especially in cases of this type, our decision must rest upon application of general rules to the facts and circumstances peculiar to each case. Thus, it is upon the particular facts and circumstances of this case, taken as a whole, that we base our holding here today.