dissenting:
I dissent because, in my opinion, there was sufficient change in the character of the “neighborhood” of the subject property to make the rezoning of that property to R-20 fairly debatable and hence permissible under the “change-mistake” rule.
It is entirely correct as stated in the majority opinion that we have recognized that wide major highways may properly be *211used as a dividing line between zones of different classifications. I have never understood, however, that our prior decisions made these major highways zoning replicas of the Great Wall of China keeping the land directly across the highway from being in the “neighborhood” of a property considered for rezoning under the unfortunate “change-mistake” rule to which the majority of the Court still adheres.1
In my opinion, there is a substantial difference between what may properly constitute a proper planning area and what constitutes a neighborhood.
In the present case it can hardly be maintained that the zoning or rezoning in the northeast quadrant of the intersection of U.S. Route 240 and Democracy Boulevard does not directly and intimately affect the character of the use and enjoyment of the land directly across Democracy Boulevard in the southeast quadrant of the intersection. This indicates to me that the zoning in the northeast quadrant, made up substantially of the Davis tract, is in the “neighborhood” of the property approximately 120 feet away across Democracy Boulevard in the southeast quadrant. The Council properly recognized this fact in its decision to rezone the Davis tract consisting of 270 acres on April 26, 1966, from R-90 (one-family, detached, restricted residential) to five new zones (four “floating” and one “Euclidean”) as follows: 10 acres to C-l (local commercial) ; 57 acres to C-P (commercial office park); 27 acres and 118 acres to 1-3 (industrial park); and 54 acres to R-H (multiple-family, high-rise planned residential).
We sustained the rezoning of the Davis tract in Bigenho v. Montgomery County Council, 248 Md. 386, 237 A. 2d 53, (1968). As our opinion in Bigenho indicates, it is anticipated that an employment center will be established on the Davis tract as rezoned, as well as various industrial uses and high-rise apart*212ments. The Council in granting the rezoning of the Davis tract indicated in its opinion that “The built-in protections of the I-3 classification offer adequate protection to the single-family dwellings across Democracy Boulevard(Emphasis supplied.) The Council obviously was of the opinion that the single-family dwellings across Democracy Boulevard in the southeast quadrant were in the neighborhood of the Davis tract and should be considered by the Council in reaching its decision in regard to rezoning the Davis tract in the northeast quadrant.
A number of the protestants in Bigenho were property owners of single-family dwellings in the southeast quadrant. They undoubtedly believed that the Davis tract was in their “neighborhood” and that the rezoning of that tract directly affected the use and value of their properties. Indeed they could not have been parties in Bigenho if they had not been “persons aggrieved” by the Council’s action. See Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 230 A. 2d 289 (1967).
In my opinion, if persons are aggrieved by a rezoning of nearby property, the rezoned property of necessity is in the “neighborhood” of the property adversely affected. In short, the Davis tract is in the “neighborhood” of the properties in the southeast quadrant and the zoning changes there were sufficient, in themselves, to result in a change in the character of the neighborhood and justify a rezoning of land in the southeast quadrant under the “change-mistake” rule.
It should be observed that the Council did not in the present case rezone the subject property to either R-H or R-10 for which rezoning was denied by the Council in the prior case decided January 21, 1964. It granted- rezoning to R-20, a multiple-family, medium density residential zone. The R-20 zone has a maximum density of 21.7 dwelling units per acre. On sites with more than five acres—such as the site involved in the present case—the main building heights are up to 80 feet with an increase in the minimum front, side and rear yards to provide more depth of open space surrounding the building or buildings. In the present case, if a building were erected to a height of 80 feet, it would be required to have a front yard of 180 feet. The provisions of the Ordinance creating the R-20 *213zone require that there be at least 2000 square feet of net lot area per dwelling unit and that not more than 18% of the net lot area be occupied by multi-family dwellings. The ordinance also provides that not less than 60% of the net lot area shall be devoted to green area, which is 5% more than the 55% requirement for green area in the R-PI zone and 10% more than the 50% requirement in the R-10 zone. The density under the R-20 zone provisions would be approximately 800 dwelling units as contrasted with 1600 dwelling units in the R-H zone. In the R-10 zone the maximum permissible density is 43.5 dwelling units per acre as compared with 21.7 dwelling units per acre in the R-20 zone. It is clear, therefore, that the granting of the application for R-20 zoning in the present case involves different zoning provisions and criteria from those involved in the previous case in which the applicants sought either R-H or R-10 zoning.
As I indicated in my dissenting opinion in Wahler v. Montgomery County Council, 249 Md. 62, 71, 238 A. 2d 266, 271 (1968), I can see no reason why the Council, as the legislative body with jurisdiction to make the rezoning determination, cannot determine, after substantial zoning changes in the neighborhood have occurred, that the public interest requires that an additional or different buffer zone be established for properties affected by those changes. The majority indicates that the decision of the Court in France v. Shapiro, 248 Md. 335, 236 A. 2d 726 (1968)—in which I did not participate—forbids this. I am of the opinion that the France case was erroneously decided and that it should be overruled.
I have indicated a number of times that, in my opinion, the correct test for judicial review in rezoning matters—as in other legislative matters—is whether or not the legislative body acted in an arbitrary, unreasonable and capricious manner. There was, in my opinion, sufficient evidence in the present case to make the rezoning fairly debatable and thus to justify the Council’s rezoning action. The subject property is a long, relatively narrow, unimproved curved area of 38 acres adjacent on the north and west to Democracy Boulevard and U.S. Route 240. It is a -wooded area, with an irregular terrain. To the south are the radio towers and facilities of radio station WMAE. As already *214indicated, the buildings for industrial uses, high-rise apartments and the employment center will be erected to the north of Democracy Boulevard in the northeast quadrant. In the northwest quadrant, directly across the clover leaf from part of the subject property, is one of the area’s largest shopping center developments which also contains apartment buildings. There was evidence that the subject property had 230 feet of access on Democracy Boulevard and neither the State Roads Commission nor the Federal Bureau of Public Roads has denied access to the subject property. There was evidence from which the Council could conclude that there would be no undue hazard from traffic. The Council on all the evidence found the following:
“The Council finds that the many changes in the area necessitate a buffer being placed between the single family residences to the southeast and the heavy commercial and the heavy industrial zonings to the northwest and north.
“The Council feels that the topography and the contour of the subject property do not lend themselves to single family residential development. The Council likewise feels that the development of R-20 zoning in this spot with its required deep setbacks would be a more effective buffer to the commercial and industrial developments than would the development in its present zoning.
“The Council also finds that, since there will be access from the subject property onto Democracy Boulevard, neighboring single-family residential development will not be overburdened with traffic.”
In my opinion, a reasonable legislator, on the evidence before the Council, could reach this conclusion as the issues were fairly debatable. Even if we might be of the opinion that the result reached by the Council on the evidence is not one which we would have reached, nevertheless we should not substitute our judgment for that of the legislative body when the matter is fairly debatable. Bigenho v. Montgomery County Council, supra; Pallace v. Inter City Land Co., 239 Md. 549, 212 A. *2152d 262 (1965); and DePaul v. Board of County Commissioners for Prince George's County, 237 Md. 221, 205 A. 2d 805 (1965) and cases therein cited. I would reverse the lower court’s order reversing the resolution of the Council and reinstate the Council’s resolution granting the R-20 rezoning.
. I have given the reasons why, in my opinion, the Court should abandon the “change-mistake” rule which has been created by our prior decisions, resting, as I see it, on illogical and erroneous premises. See my dissenting opinions in Wahler v. Montgomery County Council, 249 Md. 62, 71, 238 A. 2d 266, 271 (1968) and in MacDonald v. Board of County Comm’rs for Prince George’s County, 238 Md. 549, 604, 210 A. 2d 325 (1965).