author:
Davidson, J.,

      Lowe, J.,

text:
    WILLIAM W. BOYCE et al. v. BERTHA SEMBLY et al.
    [No. 153.
    September Term, 1974.]

      Decided March 7, 1975.

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

      Ernest C. Trimble, with whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellants.

      Anne Kay Kramer for appellees.
   Davidson, J.,

delivered the opinion of the Court. Lowe, J., concurs in the result and filed a concurring opinion at page 62 infra.

This case presents the narrow question of whether the County Council of Baltimore County (Council) committed basic and actual “mistake” or “error” as those interchangeable terms are used in zoning law, when on 24 March 1971 it adopted a comprehensive zoning map on which the subject property, consisting of 5.84 + acres, was classified as D.R.-5.5 (Density Residential, 5.5 dwelling units per acre).

Most of the facts are not in dispute. The subject property, located in a community known as Lutherville, lies in an area bounded by Seminary Avenue on the north, the Harrisburg Expressway on the west, and the,Baltimore Beltway on the south. (See location map attached hereto.) It is roughly triangular in shape and fronts on the west side of Railroad Avenue approximately 480 feet south of its intersection with Seminary Avenue.

On the west side of Railroad Avenue, approximately 250 feet north of the subject property, there is a relatively small parcel of land, located at the corner of the southwest quadrant of the intersection of Railroad Avenue and Seminary Avenue, which was reclassified to the B.L. zone (Business, Local) by a local map amendment adopted subsequent to 1955, on which a Citgo service station has long been and still Is in operation. In the northwest quadrant of the Intersection there Is also a comparatively small parcel of land zoned B.L. upon a portion of which a refinishing shop, called The Wood Butcher, was developed around 1960. A furniture store known as Leers, containing about 15,000 square feet, is presently under construction on the remaining portion of that B.L. zoned land. At the corner of the southeast quadrant of the intersection there exists still another relatively small parcel of land which was classified in the B.L. zone in 1955, upon a portion of which a small grocery store has been located for many years. Subsequent to 1955 a relatively small parcel of land adjoining this B.L. zoned tract on the south was reclassified from the then R.-10 zone (Residence, one or two family, lot area 10,000 square feet) to the B.L. zone. An office building has been developed on this B.L. zoned tract. Adjoining this B.L. zoned parcel on its south is a tract of land zoned D.R.-3.5 (Density Residential, 3.5 dwelling units per acre), a portion of which confronts the northern portion of the subject property.

Moving south along the east side of Railroad Avenue and confronting the southern portion of the subject property there is a parcel of land which, subsequent to 1955, was reclassified by a local map amendment from the then R.-10 zone to the D.R.-16 zone (Density Residential, 16 dwelling units per acre). An apartment complex known as the Cardiff of Charles Apartments, consisting of 160 units, has been developed on a portion of that tract. Lying between this D.R.-16 parcel and the Beltway, on the east side of the railroad right-of-way, there is a relatively large tract of land which, subsequent to 1955, was reclassified by a local map amendment from the then R.-10 zone to the B.R. zone (Business, Roadside). “Warehouse office storage”-type buildings have been developed on this parcel. The record further shows that the Lutherville Supply & Equipment Company, which sells heavy machinery, earth-movers and cranes, is also located on the land east of the subject property and across the railroad track. It is unclear, however, whether this business enterprise is located on the D.R.-16 zoned land or the B.R. zoned land.

The subject property, which is fairly level, has a low elevation lying approximately 15 to 20 feet below the roadbed of the Northern Central Railway, which adjoins Railroad Avenue on the east. It is bisected by the Roland Run Stream which traverses the subject property from north to south. That portion of the subject property lying to the west of Roland Run Stream is further bisected by a tributary of the Roland Run Stream which passes through that portion of the subject property from west to east. Parallel to Roland Run and its tributaries there are 10-foot-wide easements for utilities and sewers.

For 60 years a building materials and lumber supply yard, located on the southeastern sector of the subject property, has been in operation. This nonconforming use is still being carried on, with annual sales in 1971 of $1.5 million. At present, there are five frame buildings located on the southeastern portion of the subject property, all of which are 50 to 60 years old and in a “bad state of repair.” Their utility for operation as a modern-day lumberyard is substantially impaired because none of them is designed to accommodate forklift trucks, necessitating the piling of lumber by hand. At one time a residence and a shed had been located on the southwestern portion of the subject property, but those buildings have been razed. Currently, that portion of the tract has no development upon it.

At present, access to the subject property is limited to Railroad Avenue, which runs along a small portion of the northeastern sector of the subject property and then deadends. That street has a 20-foot right-of-way and a paved width of 15 feet. The Northern Central Railway right-of-way which adjoins Railroad Avenue on the east, as well as a portion of the southeastern sector of the subject property, contains one railroad track over which two to four freight trains travel daily. School Lane appears to provide access to the northwestern section of the subject property. The 20-foot-wide pavement of that road ends, however, 60 feet from the northern boundary of the subject property.

The subject property was classified in the R.-6 zone (Residence, one or two family, lot area 6,000 square feet), which was the then equivalent of the D.R.-5.5 zone, by the comprehensive zoning map which preceded that of 1971. On 10 September 1970 the Zoning Commissioner (Commissioner) of Baltimore County granted an application requesting reclassification of the subject property to the B.R. zone. An appeal was taken to the Board of Appeals (Board). While that appeal was pending, the Council was considering the adoption of a new comprehensive zoning map. The Log of Issues and Recommendations to the Council, Relative to the Central Sector, used at the public hearing preceding adoption of the 1971 comprehensive zoning map, indicates that the existing zoning of the subject property was R.-6; that the Planning Board recommended that the subject property be designated D.R.-5.5; that the property owner was requesting a B.R. zoning classification in a local map amendment case then pending; and that a proposed Council resolution recommended D.R.-16 zoning for the subject tract. On 24 March 1971 the Council adopted a comprehensive zoning map on which the subject property was classified in the D.R.-5.5 zone.

Within three weeks of the adoption of the comprehensive zoning map the owner of the property and the contract purchaser of the tract [hereinafter called applicants] petitioned the Commissioner for a reclassification of the subject property to the B.R. zone, alleging that there was error in the comprehensive zoning map with respect to the subject property. After a hearing the Commissioner concluded that the comprehensive zoning map was in error in classifying the subject property in the D.R.-5.5 zone. On 8 February 1972 he granted the requested reclassification to the B.R. zone. An appeal was taken to the Board and, on 6 September 1972, the action of the Commissioner was reversed in part and affirmed in part by the Board which believed that the applicants had “met the burden of proof in showing error in original zoning on that portion of the petitioned tract southeastwardly of the stream, but not on that portion northwestwardly of the stream.” Accordingly, the Board granted reclassification of the 2.3 ± acres of the subject property, which lie on the southeast side of the center line of Roland Run to the B.R. zone, and retained the remaining 3.54 + acres of the subject property, which lie on the northwest side of the center line of Roland Run, in the D.R.-5.5 zone.

The protestants, neighboring property owners, filed an appeal in the Circuit Court for Baltimore County from that portion of the order which reclassified the southeastern portion of the tract to the B.R. zone. On 29 January 1974 Judge Lester Barrett found that “[t]he testimony of the Protestants in this case supported the correctness of the County Council’s comprehensive zoning of March 1971” and that “the testimony produced by the Petitioner-Appellee is not sufficient to overcome the presumption of correctness which attaches with the adoption of a comprehensive zoning map by the County Council.” An order was entered reversing that portion of the Board’s order which had reclassified the 2.3 + acres lying on the southeastern portion of the subject property to the B.R. zone. It is from this order that the applicants appeal.

The applicants initially contend that the trial court applied an improper standard in determining whether the action of the Board should be reversed. They point out that while the trial court found the evidence adduced by the protestants supported the correctness of the 1971 comprehensive zoning and that the evidence adduced by the applicants was insufficient to overcome the presumption of correctness which attaches to a comprehensive rezoning, it did not determine whether the action of the Board was arbitrary and discriminatory or “fairly debatable.” The applicants conclude that under these circumstances the trial court impermissibly weighed the evidence and substituted its judgment for that of the Board. We do not agree.

The applicable test for determining the scope of judicial review in a zoning case alleging error in a comprehensive rezoning has recently been restated in Trainer v. Lipchin, 269 Md. 667, 672-78, 309 A. 2d 471, 474 (1973), in which the Court of Appeals, quoting from Stratakis v. Beauchamp, 268 Md. 643, 652-53, 304 A. 2d 244, 249 (1973), said:

“ . Where a legislative body, or a board of county officials, pursuant to authority conferred upon it, has granted a rezoning of property, the question on judicial review is whether or not such action is arbitrary and discriminatory or fairly debatable. We shall follow that test in considering this appeal.
“ ‘While, in recent years, we have had occasion to enunciate a number of important principles applicable to the law of zoning, perhaps none is more rudimentary than the strong presumption of the correctness of original zoning and of comprehensive rezoning. To sustain a piecemeal change in circumstances such as those present here, strong evidence of mistake in the original zoning or comprehensive rezoning or evidence of substantial change in the character of the neighborhood must be produced. Since, as we have also said, this burden is onerous, the task confronting appellants [appellees], whose application followed the comprehensive rezoning by merely four months, is manifestly a difficult one.’ ” (Emphasis in original.) (Citations omitted.)

Under this test “strong evidence” of error is required to make the issue of mistake in comprehensive zoning fairly debatable and unless such strong evidence is presented by the applicant, the action of the Board in granting a reclassification is arbitrary and capricious.

Here, the trial court’s finding that the “testimony produced by the Petitioner-Appellee is not sufficient to overcome the presumption of correctness which attaches with the adoption of a comprehensive zoning map by the County Council” is, in essence, a determination that there was not evidence of mistake in the comprehensive zoning strong and substantial enough to make that issue fairly debatable and that, consequently, the action of the Board in granting the reclassification was arbitrary and capricious. The trial court’s further finding that the evidence adduced by the protestants supported the correctness of the 1971 comprehensive zoning, while correct, was not required for a resolution of the issue in this case. Until the presumed validity of the comprehensive zoning map has been overcome, evidence supporting its correctness is immaterial. Thus, while the trial court made a gratuitous finding, he applied the appropriate standard for judicial review. He neither weighed the evidence nor substituted his judgment for that of the Board.

Secondly the applicants contend that the Council erred in placing the subject property in the D.R.-5.5 zone because, at the time of the adoption of the 1971 comprehensive zoning map, it failed to take certain facts into account.

In this case, in order to grant the requested reclassification, the Board needed strong and substantial probative evidence that there was “mistake” or “error” in the comprehensive zoning of 1971. In order to assess the evidence before the Board, it is necessary to understand the inherent nature of the terms “mistake” or “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 fact, 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 taken 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.”

Moreover, in reviewing the evidence before the Board, it must also be noted that the 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. Surkovich, supra, at 268 Md. 655, 304 A. 2d 250; Coppolino v. County Board of Appeals of Baltimore County, 2.3 Md. App. 358, 371-72, 328 A. 2d 55, 62 (1974). Viewed in the light of the principles applicable to “error” or “mistake” the testimony presented here does not pass muster.

The applicants contend that at the time of the comprehensive rezoning of 1971 the Council erred in placing the subject property in the B.R.-5.5 zone because they failed to take into account the fact that the subject property was then unsuitable for residential development. A witness qualified in the fields of real estate and real estate appraisal and the contract purchaser of the subject property testified that it was “unsuitable” for residential development because of its physical characteristics and its proximity to the railroad tracks. They stated that much of the land in the western sector of the subject property lay in the flood plain, and was not usable for any purpose; that in order to provide access to the western portion of the tract it would be necessary to bridge Roland Run Stream at great expense; and that, in any event, the maximum permitted density of 35 units could not be achieved either by single-family residential development or apartment development because the eastern portion of the subject property, adjoining the railroad right-of-way, was undesirable for residential development while the western portion contained insufficient usable land for the construction of 35 units. They concluded that residential development on the subject property would be economically unfeasible and that the only reasonable use which could be made of it consisted of commercial use on the eastern portion of the tract with off-street parking located on the western portion. They acknowledged that the subject property presently contains a profitable nonconforming use and that a single-family residence had been located on the western portion of the tract. They further conceded that the subject property was adjoined on the west and north by land upon which single-family development had taken place; that single-family development presently existed along the right-of-way of the railroad on land adjoining or lying in close proximity to the subject property; and that single-family residential development had recently occurred on land adjoining the railroad right-of-way in other communities located near Lutherville. There were no facts presented to show how much of the land contained in the total tract was unusable; how many units physically could be located on the tract; or how much it would cost to bridge Roland Run in order to provide access to the western portion of the subject property. Moreover, there was no explanation as to why it would be impossible to provide access for residential development via School Lane; or why it was any more undesirable here to locate residential units next to the right-of-way of the Northern Central Railroad than it had been to locate residential units next to the railroad within the same and neighboring communities.

This evidence was insufficient to make the question of “error” or “mistake” fairly debatable for two reasons. First, because the conclusion that the subject property was unsuitable for residential development was not supported by adequate reasons or facts, it was entitled to little if any probative value. It was not sufficiently strong and substantial to overcome the presumption of validity of the comprehensive zoning. Secondly, there was no evidence to show that at the time of the comprehensive zoning the Council was unaware of the readily visible physical characteristics and location of the subject property and failed, in fact, to take them into account. Indeed, the existence of easements for public sanitary sewers supports an inference that the Council was, in fact, aware of the physical characteristics of the subject property. Thus, there was no evidence to show that the initial premises of the Council with respect to the subject property were incorrect and that consequently the classification assigned at the time of the comprehensive rezoning was improper.

The applicants next contend that at the time of the comprehensive zoning of 1971 the Council erred in failing to take into account various physical changes which had occurred in the area between the adoption of the 1955 comprehensive zoning map and the 1971 comprehensive zoning map. These changes included the development of a large furniture store on land in the northwest quadrant of the intersection of Railroad Avenue and Seminary Avenue on land zoned as commercial by the 1955 comprehensive zoning map and the development of extensive commercial and apartment uses on land, in close proximity to the subject property, which had been reclassified from single-family residential zones to commercial and apartment zones after the adoption of the 1955 comprehensive zoning map. The zoning map shows that none of the changes in zoning classification or development have occurred in the area bounded by the Harrisburg Expressway on the west, Seminary Avenue on the north, Railroad Avenue on the east, and the Beltway on the south. Thus, the immediate neighborhood within which the subject property lies has been left essentially unchanged and contains no land classified in the commercial zone other than that at the intersection of Railroad Avenue and Seminary Road, which has been so classified since 1955. Moreover, the zoning map shows that all of the commercial uses existing in a much broader area are located at road intersections. There is not an iota of evidence in the record to indicate that at the time of the comprehensive zoning of the subject property the Council was unaware of either the zoning reclassifications or development which had taken place between 1955 and 1971. Indeed, the presumption that the Council was aware of these occurrences is buttressed by the fact that it was reasonable for the Council, cognizant that commercial uses had already been extended at various road intersections in the area, to conclude that the intrusion of additional commercial zoning into the area at a location other than a road intersection, was contrary to the public interest. Consequently, there is insufficient evidence to make fairly debatable the question of whether the Council erred in failing to consider the effect of the zoning and development which had taken place between 1955 and 1971.

The applicants additionally contend that the Council erred in failing to take into account the projected widening of the Harrisburg Expressway and the Beltway interchange as well as the extension of Charles Street. The only evidence presented as to the impact of these roads on the subject property was that of the applicants’ expert, qualified as an expert in real estate and real estate appraisal. He testified that the Beltway interchange requires a “lot of bridgework” and “will go way up in the air,” so that It might be seen from the subject property in the wintertime when the trees are barren of leaves. He conceded, however, that at the time of the comprehensive zoning map, the Council anticipated the widening of the Harrisburg Expressway and the Beltway interchange. Moreover, he acknowledged that even at the time of the Council hearing no plan for an extension of Charles Street had been finalized, making uncertain when, if at all, such an extension might take place. The evidence with regard to widening of the Harrisburg Expressway and the Beltway interchange is insufficient to establish either error or mistake because it supports, rather than rebuts, the presumption that at the time of the comprehensive zoning the Council was aware of the fact that those roads were to be widened. The evidence with respect to the proposed extension of Charles Street is insufficient because it is too speculative in nature to have properly been considered. At the time of comprehensive rezoning, the Council is required to take into account only existing facts and those projects or trends which are reasonably probable of fruition in the foreseeable future. Hunter v. County Commissioners, 252 Md. 305, 310, 250 A. 2d 81, 84 (1969) see Chapman v. Montgomery County, 259 Md. 641, 649-50, 271 A. 2d 156, 160-61 (1970); Johar Corp., supra, at 236 Md. 112, 202 A. 2d 615; Rohde, supra, at 234 Md. 264, 199 A. 2d 218-19; Trustees of McDonogh Educational Fund and Institute, 221 Md. 550, 570-71, 158 A. 2d 637, 648 (1960).

The applicants also contend that the Council erred because it failed to take into account the B.R. zoning classification of the subject property, which they assert existed at the time of the comprehensive rezoning, and further failed to take into account the fact that the property owner was seeking a commercial classification for his property. They maintain that at the time of the comprehensive rezoning the Council considered only the possibility of reclassifying the subject property from the R.-6 zone to the D.R.-16 zone. In support of this position they rely on the Log of Issues and Recommendations to the Baltimore County Council, Relative to the Central Sector, used at the public hearing preceding adoption of the 1971 comprehensive zoning map. This log indicates that the then existing zoning of the subject property was R.-6; that the Planning Board recommended that the subject property be designated D.R.-5.5, the new equivalent of R.-6; that the property owner was requesting a B.R. zoning classification in a local map amendment case then pending; and that a proposed Council resolution recommended D.R.-16 zoning for the subject tract. This evidence, rather than overcoming the presumption that the Council was aware of all of the relevant existing facts at the time of the comprehensive rezoning, supports it.

The record clearly shows that at the time of the comprehensive zoning the subject property had been reclassified to the B.R. zone by the Zoning Commissioner but that that action by the Commissioner was then pending on appeal. Because an appeal was pending, the reclassification granted by the Zoning Commissioner was deprived of the force and effect of law. Consequently, the existing classification of the subject property was properly reflected in the log as R.-6. Moreover, the log patently indicates that a request for reclassification to the B.R. zone was then pending, thus putting the Council on notice of the property owner’s desire to have the subject property placed in that classification. Under these circumstances there can be no doubt that the Council was aware of the facts as they then existed, and in particular, of the classification sought by the property owner. Accordingly, its decision to place the subject property in the D.R.-5.5 zone was not premised on a misapprehension.

Finally, the applicants contend that the Council erred in failing to take into account the fact that their property had been utilized for the past 60 years as a building materials and lumber supply yard; that this nonconforming use had always been compatible with the adjoining residential uses; that this nonconforming use could be continued even if the requested reclassification were denied; and that the requested reclassification was sought only for the purpose of permitting the owner to update and improve his present facilities and to protect his right to continue that business in the event that the building should be destroyed by fire.

This contention is without merit for several reasons. There is no evidence to indicate that the Council was unaware of this nonconforming use which had been in existence for 60 years. Moreover, nonconforming uses are by definition inherently incompatible with permitted uses in a zone. Indeed, it is public policy in Baltimore County to drive such nonconforming uses out of permanent existence by preventing the expansion of such uses or their restoration if substantial damages are incurred. Finally, in response to the applicants’ argument that they were seeking B.R. zoning solely as “insurance” to guarantee the right to rebuild the present use in the event of casualty, it need only be noted, as the applicants conceded, that once the reclassification was granted, nothing could prevent the development of any of the uses permitted in the B.R. zone on the subject property. Consequently, the evidence again was insufficient to make the question of error fairly debatable.

When all is said and done, this record is totally devoid of any evidence to show that at the time of the comprehensive zoning of the subject property the Council failed to take into account any facts or circumstances then existing relevant to the subject property and its environs so that its initial assumptions and premises in determining the appropriate classification for the subject property were erroneous. Nor was there any evidence of any events occurring subsequent to the time of the comprehensive rezoning, which would show that the Council’s assumptions and premises at the time of the comprehensive rezoning had been proved invalid by the passage of time. Under all of the circumstances in this case the presumption of validity accorded to the comprehensive rezoning was not overcome and the question of “error” or “mistake” in the comprehensive zoning of the subject property was not “fairly debatable.” The trial court was correct in reversing that portion of the Board’s order which granted reclassification to the B.R. zone of the 2.3 + acres of the subject property which lie on the southeastern side of the center line of Roland Run Stream. Accordingly, the order of the trial court will be affirmed.

Order affirmed.

Costs to be paid by appellants.

Lowe, J.,

Concurring:

I agree with the result in this case, and with the reasoning, but I feel that we are making more and more complicated, a rule which should and could be kept simple.

A presumption of correctness and validity attaches to the assignment of a zoning classification to any parcel of land, whether by the adoption of a comprehensive zoning map, or, though perhaps with less force, by an individual map amendment.

When a board or other governmental body exercising the zoning function is called upon to decide whether to change a zoning classification, it must determine either whether there was a mistake in the existing zoning, or whether the character of the neighborhood has changed to such an extent that reclassification should be granted.

Judicial review of the action of a board exercising zoning authority is confined within narrow limits. If the evidence before the board is so strong, or conversely so weak, that it does not raise a fairly debatable issue, the board’s action must conform to that evidence. If it does not conform, the action is arbitrary, capricious, discriminatory, or illegal, and the court will declare it so. But if the evidence on an issue falls within that broad range that makes the issue fairly debatable, then it is the function of the legislative body, not of a court, to make a finding on that issue.

The dual and not always separable issue has been called the “change-mistake rule”. In Muhly v. County Council, 218 Md. 543, 147 A. 2d 735 (1959), the Court of Appeals referred to the rule when it said, at 545-46:

“The chancellor dismissed the bill, on the ground that the question was fairly debatable, and stated that there was evidence before the Council to support a finding that there was either a mistake in the original zoning or that the character of the neighborhood had changed to such an extent that reclassification should be granted.”

The Court said further, at 547:

“But zoning can never be completely permanent, and reclassification which finds support in a genuine change in conditions, or clear evidence of mistake, should not be stricken down, even if the reviewing court would have reached a different conclusion.”

In White v. Board of Appeals, 219 Md. 136, 148 A. 2d 420 (1959), the Court quoted from Muhly, supra, and went on to say, at 144:

“As must appear from the resume of the facts, the case is at least fairly debatable on all issues. The Zoning Commissioner found a change of conditions and a mistake in the original zoning. The County Board of Appeals seems to have based its action on changed conditions, and the Circuit Court certainly did. Actually, there can be said to be aspects of both original error and change. * * * We think it is not important which view is taken for under either, or a combination of the two, the presumption as to the correctness of the 1955 zoning vanishes.”

Appellants in Pressman v. Baltimore, 222 Md. 330, 160 A. 2d 379 (1960), who protested below against three ordinances rezoning certain tracts of land, contended on appeal, inter alia, “that all three ordinances are invalid because there has been no showing of error in the original zoning plan or of such change in conditions as would warrant a departure from it”. I note that neither the appellants there nor the Court considered it necessary to consider mistake and change as separate concepts. The Court said, at 339:

“However desirable commercial strip zoning along arterial highways may have appeared in 1931, there is ample evidence in this case to support the view that it has not stood the test of time and experience. Whether this should be regarded as an error in original zoning or the result of changed conditions may be a matter of a choice of words or of approach. In either event, a contention that the action of the legislative body in rezoning these properties is devoid of support, simply cannot be sustained.”

When their rezoning application was denied by the Mayor and Council of Rockville, there being no statutory appeal procedure, appellants in England v. Rockville, 230 Md. 43, 185 A. 2d 378 (1962), alleged that the denial was arbitrary and confiscatory. The court below denied relief, but the Court of Appeal reversed. It said, at 46-47:

“There was clear evidence of original mistake or change of condition, in addition to the evidence of practical inability to improve the lots for residential use, and that the granting of the application would conform the use to the recommended future use of the whole area, as set out in the proposed comprehensive plan. * * * There was not sufficient evidence to the contrary to make the issue fairly debatable.”

In Overton v. County Commissioners, 225 Md. 212, 170 A. 2d 172 (1961), a zoning reclassification was opposed by protesting neighbors. The rezoning was granted by the governing body, affirmed by the Circuit Court, and affirmed by the Court of Appeals. One of the contentions on appeal was the combined allegation

“that there was no substantial evidence of a basic mistake in the original zoning or of a substantial change in the character of the neighborhood to warrant the reclassification.”

The planning staff had recommended the rezoning on the ground that there was a mistake in the original classification. The governing board found that there had been a mistake. The lower court and the Court of Appeals said the issue was fairly debatable. The Court of Appeals, quoting from West Ridge, Inc. v. McNamara, 222 Md. 448, 160 A. 2d 907 (1960), and referring to its decisions there cited, said, in part, at 218-19:

“These cases recognize the familiar rules that in the case of piecemeal rezoning, there must be a showing of either an error in original comprehensive zoning or such a change in conditions as to warrant rezoning, that if either of these is shown, or if there are facts from which the legislative body could reasonably have made such a finding (i.e., that the matter is at least fairly debatable), the courts may not interfere with the legislative action * * *.”

The Court in Overton confined its decision to the question of whether a mistake was made in the original classification, and said that there was ample evidence before the legislative body from which it could find mistake in the original comprehensive zoning.

In Rohde v. County Board, 234 Md. 259, 199 A. 2d 216 (1964), the Court of Appeals affirmed a circuit court order affirming the County Board of Appeals in granting an application for rezoning. The Court said, at 267-68:

“To warrant piecemeal rezoning, there must be a showing of error in the comprehensive rezoning when made or a subsequent change of conditions, or both. It is sometimes difficult to say whether some evidence shows original error or a change in conditions, and it may not be necessary to resolve the question. Pressman v. City of Baltimore, 222 Md. 330, 160 A. 2d 379. That, we think, is the situation here. The applicant produced considerable expert testimony to show that either as a result of lack of anticipation of trends of development in 1955 or as a result of changes in trend which have occurred since then, whether anticipated or not, the existing zoning was in error at the time of the hearing.”

After commenting that a comprehensive zoning map was entitled to a presumption of correctness, and the burden was on the applicants for reclassification to show an error in the map or a change of conditions in the neighborhood, the Court of Appeals held in Jobar Corp. v. Rodgers Forge, 236 Md. 106, 202 A. 2d 612 (1964), that a Board’s decision was not in accordance with law when it declined to permit evidence of projects which were reasonably probable of fruition in the foreseeable future. It said in effect that the Board was wrong when it felt that it was limited to a consideration of evidence of the situation existent at the time of the hearing, and no potential, even though imminent, future changes in that situation or future needs of the public could be considered. On the original appeal to the circuit court, that court had remanded the case to the Board for further hearing. Upon further hearing, the Board found both original error and change, and granted the rezoning. When that order was appealed, the circuit court reversed. The Court of Appeals reversed the lower court, and held that the evidence before the Board at the second hearing made both original error and change fairly debatable issues, and that the Board’s grant of the rezoning should not be disturbed by the courts.

In the very recent zoning case of Rockville v. Stone, 271 Md. 655, 319 A. 2d 536 (1974), the Court of Appeals observed that, “despite the intriguing factual and procedural posture present here, there is really very'little new under the sun in this State as far as zoning cases are concerned”. One element of the factual posture was that the rezoning involved was a down zoning, applied for by the City of Rockville Planning Commission, granted by the City over the opposition of the landowners, reversed by the circuit court, and reinstated by the Court of Appeals. The down zoning nullified a piecemeal rezoning which the City had previously granted. The Court of Appeals concluded that the evidence before the legislative body made each of the issues of change and of mistake fairly debatable. It commented that the original mistake was an assumption which proved, with the passage of time, to be erroneous.

It seems to me that the failure of an expected change to take place could be characterized, with equal effect, as a change, negative in nature, or as a mistake in making the assumption in the first place. But an assumption may be sound at the time it is made, even though subsequent events do not bear it out.

The dilemma is one of words, not principles. This is why I urge simplicity, not proliferating complexity, in expressing the legal requirement for a zoning change. I think we should make it clear that whether we say “mistake” or “error” in the original zoning, we mean exactly the same thing. I think we should make it clear that whether we say “change in the character of the neighborhood”, or “change in conditions”, or “change in circumstances”, we mean exactly the same thing. A change in “conditions” or a “change in circumstances”, which affects the “character of the neighborhood” obviously indicates a “change in the character of the neighborhood”, and any attempt to give different meanings to these phrases is a distinction without a difference. A change of “conditions” or of “circumstances” which does not affect the character of the neighborhood is irrelevant in any event.

I see no significance in attempting to put on a different basis, a failure to consider facts in existence at the time of zoning, or a failure to foresee a future which was foreseeable at the time of zoning, or a failure to foresee a future which was not foreseeable at the time of zoning.

The cases I have cited, and from which I have quoted, are not intended to show that I disagree with the law which governs the outcome of the case now before us. The cases are cited to show that in no case has there been a significant distinction among “mistake”, “error”, or “change”. In no case has there been a significant distinction based on whether known facts were overlooked, foreseeable facts were not foreseen, or unforeseeable changes later occurred. Rarely has the Court even treated mistake and change as separate concepts.

I believe that the majority opinion in this case unnecessarily takes the long way around. I prefer the short way around, expressed by Chief Judge Bruñe for the Court in Rohde v. County Board, supra, when he said:

“The applicant produced considerable expert testimony to show that either as a result of lack of anticipation of trends of development in 1955 or as a result of changes in trend which have occurred since then, whether anticipated or not, the existing zoning was in error at the time of the hearing.”

The test that the courts should apply in any review of legislative action on a rezoning request is this: Did the applicant produce evidence sufficient to overcome the presumption of correctness of the existing zoning, and to make fairly debatable the issue of whether the existing zoning was in error at the time of the hearing.

      . The record is devoid of any evidence showing the development, if any, existing on this parcel.

      . The date upon which the zoning application was filed does not appear in the record. Provisions of Baltimore County Code (1972 Cum. Supp.) § 22-22(e) and (d) support an inference that the application was filed prior to 16 April 1971.

      . In applying the change-mistake rule to test the validity of comprehensive rezoning, the Court of Appeals has long recognized the inherent difficulty in attempting to distinguish between “error” and “change” and has frequently found it unimportant to differentiate between the two. See, e.g., Rohde, supra, at 234 Md. 267, 199 A. 2d 221; Pressman, supra, at 222 Md. 339,160 A. 2d 383; White, supra, at 219 Md.144,148 A. 2d 423-24. The fact of the matter is that “error” and “change” are opposite sides of the same coin. On the one hand there can be a change in conditions so pervasive as to constitute a change in the character of the neighborhood which demonstrates that the Council's initial assumptions as to the character of the neighborhood were incorrect. In such cases it has been held that evidence of change in the character of the neighborhood is substantial enough to overcome the presumption of validity ordinarily accorded to a comprehensive rezoning. See, e.g., Rockville v. Stone, supra, at 271 Md. 661-62, 319 A. 2d 540; Himmelheber v. Charnock, 258 Md. 636, 641-42, 267 A. 2d 179, 182 (1970); Wier v. Witney Land Co., 257 Md. 600, 614-15, 263 A. 2d 833, 84041 (1970). On the other hand there can be less significant changes, such as the construction of sewers or roads, which may also indicate that certain other initial assumptions of the Council were incorrect. In such cases it has been held that evidence of change is sufficiently strong to establish error in the comprehensive rezoning so that the presumption of validity generally accorded is overcome. See, e.g., Rockville v. Stone, supra, at 271 Md. 662, 319 A. 2d 541; Rohde, supra, at 234 Md. 267-68, 199 A. 2d 221; White, supra, at 219 Md. 144, 148 A, 2d 422-23. In either event, because the evidence of change demonstrates that the initial premises of the Council were invalid, the presumption of validity accorded to comprehensive rezoning vanishes. Thus, whether the evidence of change is viewed as establishing “change in the character of the neighborhood” or “error in comprehensive rezoning” the result is the same. When subsequent events demonstrate that any significant assumption made by the Council at the time oí the comprehensive rezoning was invalid, the presumption of validity accorded to the comprehensive rezoning is overcome.

      . The applicants do not contend that the assignment of a residential classification, D.R.-5.5, to the subject property constituted impermissible confiscation.

      . Baltimore County Zoning Regulations (Interim ed. 1971) § 500.3a provides:
      “Any such reclassification when granted by the Zoning Commissioner shall in the absence of an appeal, have the force and effect of law.”

      . Baltimore County Zoning Regulations (Interim ed. 1971) § 104 provides, in pertinent part:
      "... in case any nonconforming business of manufacturing structure shall be damaged by fire or other casualty to the extent of seventy-five (75) per cent of its replacement cost at the time of such loss, the right to continue or resume such nonconforming use shall terminate.”
      Baltimore County Zoning Regulations (Interim ed. 1971) § 253.1A (29) classifies a lumberyard as a permissible use in a manufacturing zone, thus presumably designating such use as a manufacturing one.

      . See Baltimore County Zoning Regulations (Interim ed. 1971) § 101, which defines a nonconforming use as:
      “A legal use of a building or of land that antedates the adoption of these regulations and does not conform to the use regulations for the zone in which it is located.”

      . See note 6, supra.

      . These uses include, among others, the following: restaurants, office buildings, bakeries, department stores, food stores, laundromats, automobile sales rooms, bowling alleys, night clubs, warehouses, laboratories, kennels, farm implement stores, and stone or monument works. Baltimore County Zoning Regulations (Interim ed. 1971) § 236.


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    LOUISE G. DAVIS et al. v. FREDERICK COUNTY BOARD OF COUNTY COMMISSIONERS et al.
    [No. 148,
    September Term, 1974.]

      Decided March 12, 1975.

      The cause was argued before Orth, C. J. and Powers and Davidson, JJ.

      Herbert D. Morrison, with whom was W. Milnor Roberts on the brief, for appellants.

      Joseph S. Kaufman, with whom were Ralph D. Gastley and Peter Max Zimmerman on the brief, for appellees.
   Davidson, J.,

delivered the opinion of the Court.

Justice Benjamin N. Cardozo wrote in United States v. Memphis Cotton Oil Co., 288 U. S. 62, 67-68, 53 S. Ct. 278, 280 (1933) that: This case turns upon the definition of “cause of action” as that term relates to the doctrine of res judicata.

“A ‘cause of action’ may mean one thing for one purpose and something different for another. It may mean one thing when the question is whether it is good upon demurrer, and something different when there is a question of the amendment of a pleading or of the application of the principle of res judicata. ... At times and in certain contexts, it is identified with the infringement of a right or the violation of a duty. At other times and in other contexts, it is a concept of the law of remedies, the identity of the cause being then dependent on that of the form of action or the writ. Another aspect reveals it as something separate from writs and remedies, the group of operative facts out of which a grievance has developed. This Court has not committed itself to the view that the phrase is susceptible of any single definition that will be independent of the context or of the relation to be governed.” (Citations and footnotes omitted.)

The appellants, homeowners in the Urbana region of Frederick County, allege that they were injured and aggrieved when on 31 July 1973 the Frederick County Commissioners (Commissioners) enacted Ordinance P.U.D. 73-2 (P.U.D. Ordinance). This P.U.D. Ordinance approved the first stage of a planned unit development to be built on property (subject property) adjoining that of the appellants, which land had formerly been classified in the A-l Agricultural zone. It was adopted pursuant to Frederick County Code, Article I, § 40-23, as amended (Enabling Act), which the Commissioners enacted originally in 1959. The Enabling Act authorized the Commissioners, in accordance with designated procedures and standards, to approve applications for planned unit developments within specified zoning classifications existing in Frederick County.

On 31 August 1973 in the Circuit Court for Frederick County, the owners of homes on property adjacent to the subject property and the Urbana Civic Association filed a “petition for appeal” alleging insofar as here relevant that the Commissioners had employed improper procedures at the hearings on the application for the P.U.D. Ordinance, and that the action of the Commissioners in granting the P.U.D. Ordinance was unsupported by the evidence and was, therefore, arbitrary and capricious. The relief prayed was that the P.U.D. Ordinance be rescinded. That petition for a direct appeal was dismissed on 6 December 1973 for lack of jurisdiction, because the Enabling Act did not provide a right of appeal from the grant or denial of a planned unit development application. See Urbana Civic Association v. Urbana Mobile Village, Inc., 260 Md. 458, 463, 272 A. 2d 628, 631 (1971).

On the same date the same adjacent property owners and the Civic Association filed a “bill of complaint for declaratory relief.” Combined demurrers and answers were filed by the appellees, the Commissioners and the owners and developers of the subject property, which Judge Samuel W. Barrick sustained with leave to amend. An amended bill of complaint was then filed on 14 December 1973 which alleged, insofar as here relevant:

1. that the P.U.D. Ordinance was adopted pursuant to the Enabling Act;
2. that the adjoining property owners were aggrieved by the P.U.D. Ordinance as it “will affect the quiet enjoyment and safety of their property by increasing traffic, noise and air pollution and by placing an intolerable strain on the natural water supply of the area all of which will result in greatly decreased property resale value as well as financial loss in drilling deeper wells on their properties”; and
3. that the Enabling Act was unconstitutional and/or violative of state statutes because it provided no right of appeal, was enacted in a closed executive session, and constituted “spot zoning.”

The prayers for relief were as follows:

“1. To declare the Frederick County Ordinance codified at Article I, Chapter 40, § 40-23, of the Frederick County Regulations [the Enabling Act] to be invalid, null and void as being unconstitutional and improperly drawn and enacted.
“2. To declare the Ordinance of July 31, 1973, [the P.U.D. Ordinance] to be invalid, null and void.
“3. And for such other and further relief as to this Court may seem just and proper.” (Emphasis added.)

A demurrer was interposed which came on for hearing on 11 January 1974 before Judge John F. McAuliffe. In a memorandum opinion dictated from the bench Judge McAuliffe found, among other things, that “by reason of the adoption of P.U.D. 73-2” the adjoining property owners had standing to challenge the validity of the Enabling Act. He concluded that a summary judgment should be granted since, there being no dispute as to the facts alleged, those facts, even if proven, would be insufficient to establish that the Enabling Act was invalid. On the same day he entered an order sustaining the demurrer and dismissing the bill of complaint.

On 18 January 1974 the same adjoining property owners filed a bill of complaint in which they again alleged that they were aggrieved as homeowners by the approval of the P.U.D. Ordinance. They further alleged that the Commissioners’ approval of the planned unit development application was invalid because:

1. A finding of change and/or mistake, required by the Enabling Act, was not based upon substantial evidence and was arbitrary and capricious;
2. A finding that water and sewer facilities were available to the subject property, required by the Enabling Act, was not made, and could not have been made since the approved master water and sewer plan for the county did not show such facilities;
3. The phase one approval of this planned unit development was premature; and
4. Their procedural rights to a fair hearing had been violated.

The relief prayed was for the court to “judicially review and rescind” the P.U.D. Ordinance.

On 19 February 1974 the Commissioners and the owners and developers of the subject property filed an answer denying all of the allegations regarding the invalidity of the P.U.D. Ordinance and raising as special defenses the doctrines of collateral estoppel, election of remedies and res judicata. On that same day the appellees filed a motion for summary judgment. On 20 March 1974, after a hearing, Judge Barrick entered an order granting the motion for summary judgment. It is from this order that the present appeal is taken.

The conclusive question to be decided here is whether under the doctrine of res judicata the judgment in the original declaratory judgment action, which upheld the constitutionality and validity of the Enabling Act, constitutes an absolute bar to the subsequent suit involving the same parties, which was brought to determine whether the P.U.D. Ordinance had itself been properly enacted. We here hold that it does.

The doctrine of res judicata is designed to insure that litigation is brought to an end and to prevent harassment of an adversary by a multitude of actions. In Maryland the doctrine of res judicata, or estoppel by judgment, consists of two branches, direct estoppel by judgment and collateral estoppel by judgment. Sterling v. Local 438, 207 Md. 132, 140, 113 A. 2d 389, 393, cert. denied, 350 U. S. 875, 76 S. Ct. 119 (1955). The doctrine of direct estoppel is predicated upon the policy of the English common law that once a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the parties must bring forward their whole case and may not subsequently reopen the same subject of litigation in respect of another matter which might have been but was not brought forward. See Mettee v. Boone, 251 Md. 332, 341, 247 A. 2d 390, 395 (1968); Alvey v. Alvey, 225 Md. 386, 391, 171 A. 2d 92, 94 (1961); Henderson v. Henderson, 3 Hare 100, 115 (Eng. Chancery Ct.) (1843).

The doctrine of direct estoppel by judgment has been expressed in Maryland in different ways. While it has been said in Maryland that res judicata applies not only to the issues expressly decided in a prior case between the same parties but to every matter which might have been presented in that prior case, Garrett Park v. Montgomery County, 257 Md. 250, 257, 262 A. 2d 568, 572 (1970), A.B. Viers, Inc. v. Whalen, 256 Md. 162, 167, 259 A. 2d 516, 519 (1969), Nutter v. Baltimore, 232 Md. 210, 213, 192 A. 2d 477, 479 (1963), the doctrine of direct estoppel by judgment is not so broadly applicable. In several cases the Court of Appeals has defined the doctrine of direct estoppel somewhat more rigidly. Thus, in Sterling, supra, at 207 Md. 140-41,113 A. 2d 393, the Court of Appeals said:

“If the second suit is between the same parties and is upon the same cause of action a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated.” (Emphasis added.)

See also Alvey, supra, at 225 Md. 390, 171 A. 2d 94; Roberts v. Gates, 24 Md. App. 374, 380, 330 A. 2d 705, 710. In Lebrun v. Marcey, 199 Md. 223, 226-27, 86 A. 2d 512, 514 (1952), the same concept was expressed in slightly different words when the Court of Appeals said:

“ ‘[I]n a subsequent action between the same parties upon the same claim or demand . . . the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.’ ” (Emphasis added.)

In Johnson v. State Roads Commission, 229 Md. 151, 152, 182 A. 2d 346 (1962), the Court of Appeals stated the doctrine of direct estoppel by judgment as follows:

“It is well established that a judgment between the same parties as to the same subject matter is res judicata, not only as to points actually raised in the former proceeding but also as to those which could have been raised.” (Emphasis added.)

These cases establish that the applicability of direct estoppel by judgment, with its attendant scope and effect, depends upon whether the “cause of action,” “claim or demand” or “subject matter” in two successive suits between the same parties is the same.

The appellees contend that the instant case is governed by the doctrine of direct estoppel by judgment. They concede that the facts alleged and the grounds of recovery set forth in the first suit are different from those alleged and set forth in the second suit. They maintain, however, that the only harm suffered by the appellants as neighboring homeowners, arose from the passage of the P.U.D. Ordinance; that the events surrounding the passage of the Enabling Act were part of the group of operative facts or transactions which gave rise to the passage of the P.U.D. Ordinance; that the initial suit to declare the Enabling Act unconstitutional and invalid was brought for the purpose of nullifying the P.U.D. Ordinance; and that consequently the “cause of action,” in both the declaratory judgment suit alleging the unconstitutionality and invalidity of the Enabling Act and the declaratory judgment action alleging improprieties on the part of the Council in passing the P.U.D. Ordinance itself, was one and the same. They conclude that the judgment in the first suit constitutes an absolute bar to the second and is conclusive not only as to the matters which were litigated in the prior suit, but also as to all of the facts, grounds, theories and other matters which could have been but were not actually litigated in the original declaratory judgment action.

The appellants contend that this case is governed by the doctrine of collateral estoppel, which is the other branch of the doctrine of res judicata. They maintain that the doctrine of collateral estoppel, as defined in Maryland, establishes that where a second action between the same parties is upon a different “cause of action,” the judgment in the prior action operates as an estoppel only as to those points or questions actually litigated and determined in the original action and is not conclusive as to matters which might have been but were not litigated and determined in the prior action. Arundel Asphalt Products, Inc. v. Morrison-Johnson, Inc., 256 Md. 170, 173, 259 A. 2d 789, 790 (1969); Pat Perusse Realty Co. v. Lingo, 249 Md. 33, 35, 238 A. 2d 100, 102 (1968); Buford v. Bunn, 247 Md. 203, 207-08, 230 A. 2d 636, 637-38 (1967); Sterling, supra, at 207 Md. 140-41, 113 A. 2d 393; Lebrun, supra, at 199 Md. 226-27, 86 A. 2d 514. They assert that the two declaratory judgment actions herein involved arose out of separate transactions, were based upon different facts, grounded on different legal theories, demanded different relief, and were, therefore, based upon different “causes of action.” They conclude that the judgment in the original declaratory judgment action is not conclusive as to any of the facts, grounds or matters raised in the subsequent action, none of which were litigated or determined in the prior action. We agree with the appellees that the two suits herein involved were based upon the same “cause of action.”

Textwriters and other authorities have recognized that the term “cause of action” for purposes of res judicata is a term of art which cannot be defined with precision. The following tests or definitions are among those most commonly employed to ascertain whether two suits are based upon the same “cause of action”:

1. Whether the same right is alleged to be infringed by the same wrong in both actions;
2. Whether the operative facts are the same in both actions;
3. Whether the same evidence would sustain both judgments;
4. Whether the same grounds are presented in both actions;
5. Whether the same principles of substantive and procedural law are applicable to both actions; and
6. Whether the judgment sought in the second aetion would infringe rights established in the first.

See 1B Moore’s Federal Practice, supra, ¶ 0.410 at 1158; Developments in the Law — Res Judicata, 65 Harv. L. Rev. 818, 824-25 (1952); Cleary, Res Judicata Re-examined, 57 YaleL. J. 339, 342-44 (1948).

We believe that the appropriate test for comparing “causes of action” for the purposes of res judicata is whether there has been a single wrongful invasion of a single primary right. In Sterling, supra, at 207 Md. 141, 113 A. 2d 393, the Court of Appeals explicitly applied the “one right-one wrong” test, stating:

“The Supreme Court, in Baltimore Steamship Co. v. Phillips, 274 U. S. 316, [47 S. Ct. 600], 71 L. Ed. 1069 [1927], said that a cause of action is a violation of one right by a single legal wrong.”

In Baltimore Steamship this test was fully explicated. There an 18 year old male, while employed on board a vessel, was injured by the fall of a strongback used to support a portion of the hatch and as a result suffered the amputation of a leg. He filed a libel in admiralty in the Federal District Court for Maryland, alleging that his injury was caused by the negligence of the steamship company in failing to provide a safe place to work and to use reasonable care to avoid striking him, and by the unseaworthiness and insufficiency of the gear and tackle employed on the vessel. After a trial, the district court held that upon the evidence the accident was not due to the negligence alleged.

Subsequently, an action was brought alleging negligence on the part of the steamship owners and their officers and employees in the control and operation of the vessel and appliances. The allegations of fact as to the way in which the accident happened were substantially the same in both cases. The defense of res judicata was interposed. The district court held that the second action was based upon a different cause of action than the first. A trial resulted in a verdict and judgment for the plaintiff. The United States Court of Appeals affirmed, holding in respect to the plea of res judicata, that the second action was based upon a different cause of action. The United States Supreme Court reversed. Justice Sutherland there said:

“Here the court below concluded that the cause of action set up in the second case was not the same as that alleged in the first, because the grounds of negligence pleaded were distinct and different in character; the ground alleged in the first case being the use of defective appliances, and in the second, the negligent operation of the appliances by the officers and coemployees. Upon principle, it is perfectly plain that the respondent suffered but one actionable wrong, and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence, or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right of bodily safety, whether the acts constituting such invasion were one or many, simple or complex.
“A cause of action does not consist of facts, but of the unlawful violation of a right which the fads show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action [emphasis added]. ‘The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. “The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group oí facts alleged in the declaration, bill, or indictment, but the result of these in a legal wrong, the existence of which, if true, they conclusively evince [emphasis in original].” ’ ”

Applying this test to the instant case produces a clear result. Appellants, as homeowners, had a right to be free from the intrusion of an unlawfully established planned unit development adjacent to their houses and properties. As their pleadings make manifest, the appellants suffered no injury or wrong as homeowners as a result of the passage of the Enabling Act. Indeed, they suffered no injury as homeowners and were not aggrieved until the passage of the P.U.D. Ordinance. Their “standing” or legal right to bring the original declaratory judgment action depended upon the aggrievement and injury suffered by them as homeowners as a result of the passage of the P.U.D. Ordinance. Compare Friendship Heights v. Funger, 265 Md. 339, 343, 289 A. 2d 329, 331 (1972) with County Commissioners of Queen Anne’s County v. Miles, 246 Md. 355, 361-62, 228 A. 2d 450, 454 (1967). See also Prince George’s County v. Board of Trustees, 269 Md. 9, 11-13, 304 A. 2d 228, 229-30 (1973); Liberto v. State’s Attorney, 223 Md. 356, 360-62, 164 A. 2d 719, 721-22 (1960); Kirkwood v. Provident Savings Bank, 205 Md. 48, 52-54, 106 A. 2d 103, 105-06 (1954); Hitchcock v. Kloman, 196 Md. 351, 355-56, 76 A. 2d 582, 584 (1950); Hammond v. Lancaster, 194 Md. 462, 471-72, 478-79, 71 A. 2d 474, 479, 481 (1950). Their original action prayed that the court declare the P.U.D. Ordinance to be “invalid, null and void” on the grounds that the Enabling Act was unconstitutional and invalid, whereas their second action prayed that the court “rescind” the P.U.D. Ordinance on the grounds that the Commissioners’ actions in enacting it were arbitrary, capricious and violative of constitutional rights.

It is apparent that either the passage of the Enabling Act, if improper, or the passage of the P.U.D. Ordinance, if improper, or a combination of both, if improper, constituted a single wrongful invasion of the homeowners’ primary right to be free from the intrusion of an unlawfully established planned unit development adjacent to their homes. Whether the harm suffered by the homeowners was due to the alleged invalidity of the Enabling Act or to the alleged invalidity of the P.U.D. Ordinance or to both, the harm for which they sought redress was the same. Thus, while the facts alleged in each of the suits differed, while the grounds upon which redress was sought also differed, while different evidence was necessary to prove the allegations set forth in each of the suits, and while different principles of substantive and procedural law were applicable, they nonetheless constituted the same cause of action. Whether the suits be considered separately or in combination they ultimately sought redress for the single violation of a single right by distinct acts which, either separately or in combination, resulted in a single wrong. The cause of action in both suits being the same, the doctrine of direct estoppel by judgment is applicable. The judgment in the original suit constitutes an absolute bar to the second and is conclusive, not only as to matters which were litigated in the earlier case, but as to all matters which could have been litigated.

Here the record shows that all of the facts relied upon in the second declaratory judgment action, none of which had been alleged in the original action, involved acts which had been committed by the Commissioners prior to the institution of the original declaratory judgment action, all of which had occurred and were known to the appellants at the time they instituted their original declaratory judgment action. Indeed, the record shows that the acts relied upon in the second declaratory judgment action were the same as those relied upon in the homeowners’ original “petition for appeal” which was filed prior to the original declaratory judgment action. Moreover, the record is totally devoid of any facts to show some good reason or excuse for the appellants’ failure, in the original declaratory judgment action, to allege that the action of the Commissioners in passing the P.U.D. Ordinance was arbitrary, capricious and in violation of their constitutional rights, which matters could have been alleged and litigated in their original suit. Indeed, the record indicates that the appellants’ failure to allege those facts and litigate those issues was the result of a deliberate choice upon their part. Under all of the circumstances here present the appellants are barred by the prior judgment from raising those facts and issues in a subsequent action. See Linthicum, supra. As stated in Wagoner, supra, at 76 Md. 315-16, 25 A. 339:

“And if she [appellant] did not see proper to make any effort to present her whole case at once, she ought not now to be allowed to rely upon facts which might have been brought forward and made a part of the subject-matter in contest in the first bill, but which were not therein alleged or made part of her first case, either through inadvertence or negligence. It will not do to say that the facts relied upon in the second bill were not alleged in the first bill, and could not, therefore, have been proved in the first case, for the answer is, it was the appellant’s duty to have either alleged them in the first case or to have shown in this case some good reason or excuse why she did not so allege them. Henderson v. Henderson, 3 Hare, 115.
“In Beloit v. Morgan, 7 Wall. 622, in speaking of the principles of res adjudicata, the Supreme Court of the United States say [sic]:
‘It extends not only to the questions of fact and of law which were decided in the former suit, but also to the grounds of recovery or defense, which might have been, but were not, presented.’
“This is a clear statement of a well-settled rule which is everywhere recognized, but, important as it is, it might as well be abolished if it can be evaded in the manner attempted in this case.”

The judgment of the trial court will be affirmed.

Judgment affirmed.

Costs to be paid by appellants.

      . Judge McAuliffe additionally ruled that the Civic Association was not a proper party plaintiff and, with respect to the Association, he sustained the demurrer without leave to amend.

      . On 14 October 1974 in Urbana Civic Association, Inc., et al. v. Frederick County Board of County Commissioners, 23 Md. App. 49, 325 A. 2d 755 (1974), this Court held that the sustaining of the demurrer in the suit for declaratory judgment was procedurally inappropriate and that as a matter of correct technical procedure the written decree or order should have declared the rights of the parties and granted a summary judgment. The case was remanded without affirmance or reversal for the entry of a modified decree in accordance with this Court’s opinion and the oral opinion of the trial court on 11 January 1974. On 6 December 1974 Judge McAuliffe entered a modified decree.

      . The order does not show the precise ground upon which Judge Barrick granted the motion for summary judgment.

      . There is no contention that there was not an identity of parties, that the court lacked jurisdiction over both the parties and the subject matter in each of the two declaratory judgment actions, or that there was not a final decision on the merits of the original declaratory judgment action. With respect to the latter, the record shows that at the time of the judgment in the instant case the judgment of the trial court in the original declaratory judgment action was pending on appeal. While it is well settled that the rules of res judicata do not apply unless there is a final judgment on the merits, the effect of the pendency of an appeal on the applicability of that doctrine has never been decided in Maryland. Badders v. Uhler, 233 Md. 441, 442-43, 197 A. 2d 120, 121, cert. denied, 377 U. S. 958, 84 S. Ct. 1639 (1964). We find it unnecessary to decide the question here because it was not raised or decided below. Maryland Rule 1085.
      There was no contention made that the initial suit, instituted by a petition for appeal, which was dismissed for lack of jurisdiction, constitutes a bar. The appellees concede that an order of dismissal for lack of jurisdiction does not constitute a final judgment on the merits so that the doctrine of res judicata is inapplicable. See Moodhe v. Schenker, 176 Md. 259, 267, 4 A. 2d 453, 457 (1939); Martin v. Evans, 85 Md. 8, 10, 36 A. 258 (1897); Hostetler r. Brotherhood of R.R. Trainmen, 183 F. Supp. 281, 289 (1960), aff'd, 287 F. 2d 457 (1961), cert. denied, 368 U. S. 955, 82 S. Ct. 397 (1962); 46 Am.Jur.2d, Judgments, § 500 (p. 656) (1969).

      . In view of this holding appellees’ contentions that the subsequent suit is barred under the doctrines of collateral estoppel and election of remedies need not be considered.

      . In federal courts the term res judicata encompasses only the doctrine of direct estoppel by judgment. The term res judicata does not embrace the doctrine of collateral estoppel by judgment. IB Moore’s Federal Practice, ¶ 0.405 at 622, (2d ed. 1965, 1974 Supp.)

      . The terms “cause of action,” “claim or demand” or “subject matter” appear to be used interchangeably in the context of the doctrine of direct estoppel. Since most courts, text writers and other authorities use the term “cause of action” to express the concept herein involved, we shall utilize that term for purposes of this discussion.

      . In Missler v. Anne Arundel County, 271 Md. 70, 77, 314 A. 2d 451, 456 (1974), the Court of Appeals, expanding upon a quotation from Pat Perusse, supra, defined the “doctrine of res judicata” (collateral estoppel) as follows:
      “The basic rule of res judicata is that facts or questions which were in issue [or which might have with propriety been placed in issue but were not, Alvey v. Alvey, 225 Md. 386, 171 A. 2d 92 (1961)] in a previous action and were [or could have been] therein determined by a court which had jurisdiction of the parties and the subject matter are conclusively settled by a final judgment in the first case and may not again be litigated in a subsequent action between the same parties or their privies even though the subsequent suit takes a different form or is based on a different cause of action.” (Emphasis added.) (Bracket additions in original.)
      Appellees contend that Missler has eroded the distinction between direct estoppel and collateral estoppel by judgment. Our holding that the two declaratory judgment actions herein involved are based upon the same “cause of action” makes consideration of that contention unnecessary.

      . The applicability of this test appears to be limited to New York State.

      . The “one right-one wrong” test has been followed repeatedly by the federal courts. See, e.g., Seaboard Coastline R.R. Co. v. Gulf Oil Corp., 409 F. 2d 879, 881 (5th Cir. 1969); Rhodes v. Jones, 351 F. 2d 884, 887 (8th Cir. 1965); Englehardt v. Bell & Howell Co., 327 F. 2d 30, 32 (8th Cir. 1964); F.L. Mendez & Co. v. General Motors Corp., 161 F. 2d 695, 696-98 (7th Cir. 1947). The Restatement of Judgments has also adopted this test. Restatement of Judgments, § 63, comment a, at 258 (1942).
      The application of the “one right-one wrong” test implicitly rejects the “same evidence, same facts, same grounds, same principles” tests as exclusive determinants of what constitutes a cause of action for the purposes of res judicata.

      It has been recognized that such tests are valid as positive but not negative indicia for determining the identity of causes. See, e.g., Englehardt, supra, at 327 F. 2d 33-34; F.L. Mendez Co., supra, at 161 F. 2d 698; Ruskay v. Jensen, 342 F. Supp. 264, 270-71 (S.D. N.Y. 1972). See also Restatement of Judgments § 61, comments a, b (1942). Thus, when the wrong sued upon in two successive cases is the same, the assertion in both of the same facts, Mettee, supra, at 251 Md. 340-41, 247 A. 2d 394-95, Sterling, supra, at 207 Md. 140-42, 113 A. 2d 392-93, Williams v. Messick, 177 Md. 605, 613, 11 A. 2d 472, 475 (1955), or the same grounds, Wagoner v. Wagoner, 76 Md. 311, 315-16, 25 A. 338, 339 (1892), justifies a finding that those suits involve the same cause of action for the purposes of res judicata. But when there has been an assertion in the second case of different facts, White v. Athey, 229 Md. 28, 30-31, 181 A. 2d 466, 467 (1962), Shirk v. Sneeringer, 163 Md. 265, 266-67, 162 A. 520 (1932), Wagoner, supra, or different grounds, Mettee, supra, Sterling, supra, Williams, supra, or a combination of different facts and different grounds, A.B. Viers, supra, at 256 Md. 168-69, 259 A. 2d 519-20, Alvey, supra, at 225 Md. 389-90, 171 A. 2d 94, City Council of Baltimore v. Linthicum, 170 Md. 245, 248-50, 183 A. 531, 532-33 (1936), Walzl v. King, 113 Md. 550, 556, 77 A. 1117, 1119 (1910), from those asserted in the first, a finding that the same cause of action is involved in both suits is not precluded, so long as the wrong sued upon in both cases is identical. These cases illustrate that in Maryland the “one right-one wrong” test has been tacitly applied as the appropriate test for comparing causes of action.

      . The appellants may have had standing as taxpayers to bring a declaratory judgment action as to the constitutionality and validity of the Enabling Act even before the Council’s enactment of the P.U.D. Ordinance. However, their bill of complaint did not allege that they were taxpayers, that they were aggrieved as taxpayers, or that the nature of the injuries they suffered were those characteristically suffered by taxpayers. See Citizens Planning and Housing Association et al. v. County Executive of Baltimore County et al., 273 Md. 333, 329 A. 2d 681.

      . At the hearing on 11 January 1974 in the initial declaratory judgment action, Judge McAuliffe specifically asked counsel for the appellants if they were then challenging the Commissioners’ factual findings and the procedural validity of their actions in passing the P.U.D. Ordinance. Counsel stated that if the questions of arbitrary and capricious action on the part of the Commissioners were raised, the issue would be governed by the fairly debatable rule. He then indicated that “that [question] was not before the court.”

      . In Linthicum an application for a special exception use to permit the operation of á federal post office was denied by the Board of Zoning Appeals of Baltimore City on the ground that such a use constituted a business use prohibited in residential districts by the zoning ordinance. On appeal the action of the Board was affirmed. Subsequently, another application for the same use was filed, which was denied by the Board on the same ground. On appeal the applicant contended that the exclusion of this use: (1) was unconstitutional because it was not within the state’s police power, (2) constituted an impermissible regulation of federal property, and (3) interfered with the operation of the mails. The Court of Appeals held that the applicant was barred from raising these questions because of the judgment in the prior case. There the Court of Appeals stated:
      “This [initial judgment] disposes of all questions now presented, for they were all involved then in the general question of exclusion of the use, whether they were actually raised or not.” 170 Md. 249, 183 A. 533.
      Thus, the Court of Appeals has indicated that once the question of the appropriate use of land has become the subject of litigation a party must bring forward its whole case, including challenges to the findings and conclusions of the zoning authority, to the constitutionality of its actions, and to the validity of its actions in any and all other respects.
      We note that recently the Court of Appeals of Michigan reached a contrary result in a case involving similar facts. In Mango v. Plymouth Township Board of Trustees, 190 N.W.2d 285 (Mich. App. 1971), a majority of that court held that a judgment in a landowners’ action which upheld the constitutionality of a zoning ordinance was not a bar to a subsequent action brought by the same landowners to determine their right, under the ordinance, to repair or change their business. In reaching this result that court said:
      “The test to determine the applicability of the doctrine of res judicata is whether the facts or the evidence essential to the maintenance of the two actions are identical. If they are, the doctrine of res judicata bars the subsequent action.
      “Applying this test to the case at bar, it is clear that the facts and evidence necessary to attack the constitutionality of the ordinance are different from those necessary to establish plaintiffs’ rights thereunder. Thus, the doctrine of res judicata did not bar the second action.” (Citations omitted.)
      As stated previously, Maryland has rejected the “same evidence” test as an exclusive determinant of what constitutes a cause of action for the purposes of res judicata.