dissenting:
I dissent because, in my opinion, there was sufficient evidence of a change of conditions in the neighborhood to justify the decision of the Council to grant the change of zone from R-90 to R-20 for the subject property.
The granting by the Council on December 1, 1964, of the rezoning of 3.81 acres of land directly across the street from the subject property from R-60 to R-T, to permit the erection of town houses, is, in itself, sufficient evidence of a change in conditions in the neighborhood to justify the Council’s granting the R-20 rezoning in the present case. We have held that a change in zone increasing the density of residential use may result in a substantial change in the character of the neighbor*72hood. Bosley v. Hospital for Consumptives of Maryland, 246 Md. 197, 204, 227 A. 2d 746, 750 (1967).
The majority, in part iii of its opinion, holds that the granting of the R-T zone opposite the instant tract is not sufficient change to justify the Council’s action, but it is not clear on what grounds the majority relies. At one point, after noting that the R-T zone is a floating zone and that compatibility is a requirement, the majority states:
“Since this compatibility with the balance of the neighborhood must exist it can hardly be said that the granting of such a rezoning is evidence of a change in the character of the neighborhood. Indeed it would seem that any R-T rezoning, in which compatibility has been determined, would operate to increase the stability of the neighborhood and add permanence to its character.”
Further on in the same paragraph, however, the Court says:
“It cannot be said, of course, that the creation of the R-T zone did not effect some change. Whatever change did take place, however, must be assumed, absent persuasive evidence to the contrary, to have been compatible with the residential character of the neighborhood.”
In my opinion, the majority is in error whether it is holding that, as a matter of law, the granting of a floating zone cannot be a “change in the neighborhood” or, that the granting of a floating zone can be a change, but must be presumed not to be in the absence of persuasive evidence to the contrary.
Section 111-12, R-T zone, town houses, of the Montgomery County Zoning Ordinances provides, in part, as follows:
“Purpose — The purpose of the R-T Zone is to provide suitable sites for Town Houses, that will more fully and efficiently utilize available public utilities and services, and so as to prevent undue congestion in sections of the County where such facilities are not available or cannot be conveniently and economically pro*73vided. It is the purpose of the R-T Zone to provide the maximum possible amount of freedom in the design of Town Houses and their grouping and layout within the areas classified in that zone; to provide the amenities normally associated with less dense zoning categories; to permit the greatest possible amount of freedom in types of ownership of Town Houses and Town House developments; to prevent detrimental effects to the use or development of adjacent properties or the neighborhood; and to promote the health, safety, morals, and welfare of the present and future inhabitants of the District and of the County as a whole.”
Then, after setting out the regulations which shall apply in the R-T zone (uses permitted, area requirements, etc.), the ordinance continues (section 111-12 i (2)) as follows:
“In reviewing the application the Department shall consider the standards and purposes of the R-T Zone with a view to achieving a maximum of safety, convenience and amenity for the residents of the Town Houses within the development.”
It is clear that the ordinance sets out a number of purposes for the R-T zone and that the prevention of detrimental effects to the use or development of adjacent properties or the neighborhood is only one such purpose. Some of the purposes may be conflicting, e.g., (a) efficiently utilize available public utilities and services so as to prevent undue congestion in sections where such facilities are not available or cannot be conveniently and economically provided, and (b) prevent detrimental effect to the use of adjacent properties. The intent is to allow the Council to arrive at the best result given the numerous purposes set out (see the emphasis on need for granting the floating T-2 zone in Costello v. Sieling, 223 Md. 24, 161 A. 2d 824 (1960)), but this is not to say, as the majority seems to suggest, that there will be no detrimental effect to the neighborhood.
In Costello v. Sieling, supra, the second case applying the “floating” zone concept in Maryland, this Court upheld the *74rezoning of a 92 acre tract located in Howard County from R (residential) to T-2 (trailer coach park) saying that the reclassified use was “not incompatible with the residential uses to which the remainder of the district is restricted and was not made for the primary benefit of a private owner but for the public good as well, * * (223 Md. at 33). The Court pointed out, however, that the County Commissioners granted the needed rezoning in spite of the fact that a 260 acre adjoining tract would be adversely affected thereby. In Costello there was an adverse effect that could be looked to to justify a zoning authority’s decision to grant a zoning change or to create a buffer zone. In Costello the effect was adverse, but other changes in the character of the neighborhood brought about by the location of a floating zone could also justify board action. This Court should act only when the zoning boards’ actions are “.arbitrary, unreasonable and capricious.” See Sampson Bros. v. Board, 240 Md. 116, 213 A. 2d 289 (1965).
In my opinion, the change in zoning to R-T is sufficient to justify the Council’s action and the presumption should be, once the R-T change has been shown, that there has been a change in the character of the neighborhood, despite the finding of compatibility, absent persuasive evidence to the contrary. As pointed out above, a finding of compatibility is not a finding of no change, and a survey of a few cases suggests prima facie that a change in the character of the neighborhood results from the granting of a floating zone.
In Huff v. Board of Appeals of Baltimore County, 214 Md. 48, 133 A. 2d 83 (1957), the first “floating zone” case in Maryland, this Court upheld the rezoning of 18 acres of land in a Residential Use District (R-40) to Manufacturing, Restricted (M-R) to enable Diecraft, Inc. “to build a one-story plant to be used for the manufacture and assembly of small precision instruments, guided missile parts and electrical and communication devices for the Federal Government.” Prima facie this “compatible” change in zoning, placing a factory in a residential area, changed the character of the neighborhood absent convincing evidence to the contrary. This change in the character of the neighborhood is sufficient to support a decision of a *75zoning board creating, say, a buffer zone even if the change did no “harm” to the neighboring property.
In Costello, supra, a 92 acre tract was changed from residential (R) to trailer coach park (T-2) to accommodate in excess of eight hundred units. There has been, prima facie, a change in character.
In Beall v. Montgomery County, 240 Md. 77, 212 A. 2d 751 (1965), the Court upheld the rezoning of 41.6 acres of land from R-60 (one-family, detached residential) with a minimum lot area of 6000 square feet to an R-H zone (multiple-family, high-rise planned residential) on which 7 high-rise apartments containing 1855 apartment units were to be built. Again, the presumption should be that there has been a change in the character of the neighborhood.
It should be pointed out that the decision of the Council on December 1, 1964, granting the rezoning of the 3.81 acre tract across Georgia Avenue from the subject property, stated:
“After considering all of the evidence submitted, the Council finds that there has been a sufficient change in the character of the neighborhood to warrant the reclassification requested.”
Both the Technical Staff and the Planning Board approved this rezoning to the R-T zone.
We have held that the Technical Staff reports, themselves, indicating a lack of change in conditions will make this issue fairly debatable and will justify the action of the Council in denying the rezoning. Sampson Bros. v. Board, supra, at Md. 119, A. 2d 291. See Board v. Turf Valley Associates, 247 Md. 556, 233 A. 2d 753 (1967). A fortiori, such reports indicating a sufficient change in condition in the neighborhood to justify the recommended rezoning makes the issue fairly debatable, where, after a field inspection, the Technical Staff makes the finding that the land to the west of the subject property is zoned R-T, to the east “are apartments under construction,” and finds that the fragmented pattern of ownership and lack of sufficient access over Ara Drive, extremely narrow and not dedicated to public use, “makes additional single-family development in the area difficult, if not impossible.”
*76The majority, in part ii of its opinion, relies strongly on this Court’s decision in Baker v. Montgomery County, 241 Md. 178, 215 A. 2d 831 (1966), which reversed the Circuit Court for Montgomery County and the Council in granting a zoning change from R-90 to R-20 for the 32.61 acre tract of land lying to the north and northeast of Jingle Lane. Jingle Lane is approximately 700 to 1000 feet northwest of the subject property and the map- indicates that the area between the subject property and the rear yards of the houses fronting on Jingle Lane consists of land for use as a large church complex and substantial amounts of vacant land. The Council in the present case, however, knew of the Baker decision and nevertheless granted the R-20 zoning in the present case. The Council most likely did not consider the decision in its opinion in the present case because the area involved in Baker is substantially separated from the subject property. In Baker we held that the application for rezoning was void because of failure to comply with certain mandatory requirements of the Montgomery County Zoning Ordinance. We did say that there was insufficient evidence offered to show a change in conditions and we did indicate that the Council, in granting R-30 rezoning in the case of Marcus v. Montgomery County Council, 235 Md. 535, 201 A. 2d 777 (1964), stated that it provided “a nice transition between the commercial and [the] R-90 zoning.” But this dictum by no means results in legislative rigor mortis. Since then there has been a rezoning of land across the street to a town house use and, in addition to that, there is no reason apparent to me why the Council, if it thinks it to be in the public interest, should not expand the “buffer” zone to include the subject property. This was recommended in the present case by the Technical Staff whose report stated: “For these reasons, the Staff is of the opinion that the existing multiple-family zoning should be extended to include the land involved in Applications E-70 and E-71.” (Emphasis supplied). The drawing of zoning boundary lines and the location and size of “buffer” zones is peculiarly within the expertise of the Technical Staff, the Planning Board and the Council. I would adhere to their judgment in this field.
I am baffled by the opinion of the majority in regard to the *77discussion of “difficulties of access” (part iv). As the majority points out, the access to the subject property is difficult. There is only a 15 foot right-of-way running northeasterly from Georgia Avenue through the adjoining property and along the northwestern boundary of the Artery tract. This limited access is most certainly a factor to be considered in determining whether the subject property should be continued in a zone for single-family development, and, as already set forth, the Technical Staff was of this opinion. The majority indicates that this “problem has already been solved by the realignment of the proposed 70 foot road (P-9) along the southeastern boundary ;” and that “oddly enough, the staff seems to have overlooked the fact that the proposed relocation and realignment of the 70 fool road (P-9) probably would solve whatever ‘difficulties of access’ there might have been.” I submit that it was not “odd” at all, as the mere relocation of the road on paper will most assuredly not provide access to the subject property. The record clearly indicates that there has been no dedication of the “relocated” road or any acceptance by the public of it as a public way. There have been no eminent domain proceedings instituted to acquire the bed of the relocated road and no such proceedings are contemplated or in prospect. The Technical Staff, the Planning Board, the Council and the Circuit Court W'ere doubtless dealing with existing conditions likely to continue for the foreseeable future and not with a “paper street” which is not likely to be available for many years and possibly may never be available for access to the subject property.
I must reiterate my firm opinion that the “change-mistake” rule should now be reconsidered and abandoned by this Court. My reasons are fully stated in my dissenting opinion in MacDonald v. Board of County Commissioners, 238 Md. 549, 604, 210 A. 2d 325 (1965), and will not be repeated here. I need only observe that the rule does not improve upon application. The formulation and application of the rule, in my opinion, was, and continues to be, a departure from sound doctrine and has opened up a veritable “Pandora’s Box” of zoning errors. It is high time to close the lid.
I would affirm.