concurring in part and dissenting in part:
I concur in Part III of the majority opinion which holds that the Council did not make the required finding that the R-T zone application complied with the purposes and criteria established by the Zoning Ordinance for granting an application for R-T zoning. As the majority points out, the Council had the benefit of our decisions in Beall v. Montgomery County Council, 240 Md. 77, 212 A. 2d 751 (1965), Knudsen v. Montgomery County, 241 Md. 436, 217 A. 2d 97 (1966) and Bujno v. Montgomery County Council, 243 Md. 110, 220 A. 2d 126 (1966). I do not think it is necessary for the decision to state that the evidence in the case is insufficient to support such a finding if the Council had made it, and I express no opinion on this point.
I dissent, however, from the decision of the majority in Parts I, II and IV, principally for the reasons already set out in my dissent in Wahler v. Montgomery County, 248 Md. 62, 238 A. 2d 266 (1968), and also in my dissent in Woodlawn Association v. Board, 241 Md. 187, 216 A. 2d 149 (1966).
As I read the testimony of Leslie Williams, there was sufficient evidence on which the Council, as reasonable legislators, could have found that there was a mistake in the original zoning. As an expert witness he stated that, in his opinion, there had been such a mistake and gave his reasons for that opinion. The principal reason why a mistake in the original zoning is deemed to have occurred, is, I take it, that the original zoning failed to take into account the proper future development of the land in question and, I would think, the testimony in regard to what the future development had in fact been is quite relevant to the issue. In my opinion the Council sufficiently indicated that there was a mistake in original zoning and there was sufficient evidence to support that finding.
I have already indicated in Wahler that, in my opinion, the R-T zoning across the street from the subject property in that case was, in itself, sufficient evidence of a “change in conditions” in the neighborhod to justify the Council’s granting the rezoning in that case. It would also be sufficient to support the rezoning in the present case, as the subject property in this case is in the “neighborhood” of the subject property in Wahler. *91In the present case, however, there was additional evidence of “changes” given by the expert witness, Donald G. Shook, which could also justify the Council in concluding that there had been a change of conditions in the neighborhood. In view of the lack of definition by this Court of the criteria that govern the application of the “change in conditions” portion of the “change-mistake” rule, the careful expert, quite naturally I think, gives every possible “change” which conceivably could have a bearing on the issue. We have never defined what land lies within the “neighborhood,” although we have frequently indicated in a particular case that certain “changes” did not occur within the neighborhood or did not result in a change in the “character” of the neighborhood. But, alas, we have not established the criteria of what does change “the character” of a “neighborhood.” Under these circumstances, like the policeman in Gilbert and Sullivan’s “Pirates of Penzance”, Act II (1879), “the lot” of the Technical Staffs, Planning Boards or Commissions, legislative bodies and trial courts “is not a happy one.” As pointed out in Beth Tfiloh v. Blum, 242 Md. 84, 218 A. 2d 29 (1966), Judge Raine of the Circuit Court for Baltimore County, has said as much. They have my sympathy. The fundamental error, to my mind, is in the “change-mistake” rule itself as I indicated in my dissent in MacDonald v. Board of County Commissioners for Prince George’s County, 238 Md. 549, 576-601, 210 A. 2d 325, 340-354 (1965). In that dissent I pointed out that one of the unfortunate results of the “change-mistake” rule was that it glorified and embalmed the status quo in zoning, which is a far too developing and economically significant area of law for the status quo to be long continued. The second by-product of the unsound rule is the uncertainty of the application of the rule. When we attempt to play the zoning score by ear, rather than by note, a lack of harmony inevitably results. The decisions in Wahler and in the present case, in my opinion, graphically illustrate this point. The expansion of the “buffer zone” recommended by the Technical Staff, concurred in by the Planning Board, adopted by the legislative body and approved by the Circuit Court was held by the majority of the Court in Wahler to be improper. On the other hand, a recommendation by the Technical Staff that the *92“buffer zone” be not further expanded, concurred in by the Planning Board, but not adopted by the legislative body, was held to be proper in this case and the order of the Circuit Court reversing the decision of the Council will be sustained. These two cases are in the same “neighborhood” on any criteria. This lack of defined criteria of what constitutes a “change in conditions” and the uncertainty of result in a particular case not only impairs the ability of counsel to advise their clients on what their rights are likely to be in a given factual situation, but makes the administration of the zoning law by the local officials, both legislative and administrative, a difficult matter indeed. This uncertainty also breeds litigation as the many zoning cases in the trial courts and in this Court attest. This is most unfortunate.
It is difficult for me to understand how the rezoning of the 65 acre tract across Layhill Road from the subject property is not also a “change in conditions” sufficient to justify the rezoning to R-20 in the present case. In the rezoning of the 65 acre tract, 27 acres were rezoned from R-90 to R-30, 20 acres were changed from R-90 to R-20 and 17 acres were rezoned to the R-T classification. A portion of the rezoned R-20 land is directly across Layhill Road from the subject property. As the majority opinion points out, this 65 acre tract forms a belt about 800 feet wide running from Layhill Road to Randolph Road. If this rezoning would not result in a change in the character of the neighborhood, I cannot think of a change that would, whether or not it forms a “nice transition” from “the shopping center commercial to the R-90 and R-R areas to the north,” as the majority indicates. It is, in my opinion, still a “change” and a change in the character of the neighborhood.
Part IV of the majority opinion indicates that the Council desired in the present case “to relocate the boundary between the R-30 area and the R-90 area” and quotes from the opinion of the Council that it found that the Glenmont area had changed from a single-family residential community to that of a rapidly expanding combination of commercial and multiple-family uses, that since the decision in the Marcus case the area had “continued on its rapid expansion of commercial and apartment-uses,” and for those reasons it found “no justification for hold*93ing the line at the same points as were warranted in 1963. It would seem more logical to extend the apartment use to R-14 at this time.” It is then stated in the majority opinion that this is considered to be a “text-book example of a ‘mere impermissible change of mind or heart’ ” referred to in several cases. The Council granted the rezoning in the present case on August 9, 1966.
The mere passage of time — approximately three years — in the volatile zoning situation you have in Montgomery County, with the great influx of population and the almost daily changes in land values and living conditions, would seem to me to preclude the likelihood that the situation was substantially the same as the situation in 1963. The Council affirmatively found that the situation had changed in three years. The “mere change of mind” finding is only permissible when the situations involved are substantially the same.
I see no reason, however, why a legislative body, if it deems that it had previously made a mistake, cannot constitutionally “change its mind” and, if zoning concepts have changed or the ■over-all situation has changed, might not properly reach a different conclusion from one reached previously. Courts, although bound to apply the doctrine of stare decisis, reserve the right to “change their minds” if convinced an original decision was in error. I would think this right to “change one’s mind” would be even more applicable to legislative bodies. The true test, as I see it, in every case is whether the legislative action is arbitrary, unreasonable and capricious; if the action is not, it should be upheld. I cannot think that the Council’s action in the present case is unreasonable, arbitrary or capricious. On the contrary, the action seems to me to be entirely reasonable and should be affirmed.
I would affirm as to Part IIT in regard to the R-T rezoning, but reverse as to Parts I, II and IV.