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.”
*63The 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 *64approach. 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:
*65“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 *66Court 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 *67sound 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 *68anticipation 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.