Aubinoe v. Lewis

Barnes, J., delivered the opinion of the Court. This appeal (one of two joint appeals, the second one to be considered later) is from an order of the Circuit Court for Montgomery County (Clapp, J.) dated June 9, 1967 (Application E-177), reversing the decision of the Montgomery County Council, sitting as a District Council (District Council), of August 10, 1965, which granted the application of the appellants, Alvin L. Aubinoe and others, for a rezoning from the R-90 zone (one-family detached restricted residential) to the RH zone (multiple-family, highrise planned residential) of 2.7953 acres of land located near the southeast quadrant of the intersection of Interstate Highway 70-S (U.S. 240) and Old Georgetown Road in Montgomery County (the subject property). The appellees, John H. Lewis, Jr., and others, are the owners of single-family dwellings in the Wildwood Manor de ⁶⁴⁷ velopment which is in the general neighborhood of the subject property. The subject property is located approximately 700 feet south of the intersection of Interstate Highway 70-S and Old Georgetown Road with frontage on the latter road of approximately 425 feet.

At the time of the public hearing on the application (No. E-177) on June 28, 1965, Old Georgetown Road was scheduled for rebuilding as a major arterial limited access divided highway. Adjoining the subject property on the south is the Wildwood Medical Clinic. There is a gasoline service station to the south and east of the Medical Clinic property. The Wildwood Manor Shopping Center is to the south of the Medical Clinic and service station properties.

The service station and the shopping center improvements are on land zoned C-l (local commercial). To the east of the subject property the land is undeveloped and portions of the land have been cleared. Farther to the east there is a single-family development. To the southeast there is an extensive area developed with large well-maintained brick residences.

To the west across Old Georgetown Road in an R-90 zone, there is a well-maintained stone single-family residence on a large landscaped parcel, several single-family residences and the entrance to the Walter Johnson High School. To the south of the high school, across Democracy Boulevard (which dead-ends at Old Georgetown Road across from the Wildwood Manor Shopping Center property) is the Davis Library. The Capital Beltway (Interstate 495) is approximately 4000 feet to the south of the subject property and was completed less than a year prior to the public hearing. The application was filed by the owners of the subject property on November 30, 1964, for rezoning of the subject property from the R-90 zone to either the C-l zone or to the R-H zone.

Both the Technical Staff and the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (Planning Board) recommended denial of the application. Two members of the Planning Board dissented, one expressing the opinion that the subject property should be rezoned to the C-l zone and that such rezoning would be compatible with the existing C-l uses to the south, the other dissenting member expressing the opinion that the ⁶⁴⁸ subject property should be zoned either C-l or R-H. Both dissenting members did not believe that it was reasonable to expect the subject property to be developed for single-family purposes. The R-H zone classification for the subject property is not in accordance with the Master Plan for the North Bethesda-Garrett Park and Vicinity, adopted April 4, 1962. The R-H zone (a “floating zone”) was a part of the Montgomery County Zoning Ordinance when the Master Plan was adopted.

At the public hearing, substantial expert testimony was offered by both the applicants and the protestants, principally directed to the question of change in the neighborhood, traffic problems, effect of the proposed rezoning on single-family dwellings and the like. A number of documentary exhibits were offered in evidence. The District Council, on August 10, 1965, filed an opinion indicating that it would approve the application for the R-H zone and on the same day filed an order granting this rezoning. A timely appeal was taken from this order and in due course eight protesting property owners filed a petition (and later an amendment to the petition) describing their properties, indicating that they were aggrieved by the action of the District Council, and setting out the grounds on which they challenged the action of the District Council.

After answers had been filed, in which the standing of the protesting property owners to appeal as aggrieved parties had been challenged, the circuit court took additional testimony in regard to whether the appealing protesting property owners were aggrieved. On June 9, 1967, the circuit court filed a comprehensive opinion finding that certain of the appealing protesting property owners (two of the protesting property owners had entered a nonsuit) were parties aggrieved and entitled to appeal, that there had been no sufficient change in conditions in the character of the neighborhood to justify the rezoning, that the action of the County Council was no more than a mere impermissible change of mind, and on the same day entered an order reversing the action of the District Council, from which the appeal to this Court was timely taken. In the opinion of the lower court, it was pointed out that the District Council must make ⁶⁴⁹ a finding that the R-H zone is compatible with the surrounding area, citing our decision in O. F. Smith Brothers Development Corp. v. Montgomery County Council, 246 Md. 1 , 227 A. 2d 1 (1967). In our opinion the decision in this case involves only two questions, i.e., (1) was the decision of the lower court clearly erroneous in finding that the appellees, as protesting and appealing property owners, had standing to appeal to the circuit court and (2) in the absence of an express finding by the District Council that the proposed R-H rezoning was compatible with the general neighborhood, can such a finding be implied from the opinion of the District Council in this case and, in any event, is there sufficient evidence in the case to support such a finding.

We have concluded that we should hold that the finding of the lower court in regard to the standing of the appellees to appeal was not clearly erroneous and that a finding of compatibility by the District Council cannot be implied, and, in any event, there is insufficient evidence to support such a finding. We will accordingly affirm the order of the lower court of June 9, 1967. The appellants forcefully contend that the lower court misapplied the Maryland “change-mistake” rule to the application for rezoning to an R-H zone and that the lower court erred in not finding that the decision of the District Council was “fairly debatable.” Even if it be conceded that their contentions are correct, we will nevertheless affirm the order of the lower court as it is well established that if the decision of the lower court is correct for a correct reason properly before us, but not for the reason on which the lower court based its decision, this Court will affirm the decision of the lower court. See Read Drug and Chemical Co. v. Colwill Construction Co., 250 Md. 406 , 243 A. 2d 548 (1968) and Schriver v. Schriver, 185 Md. 227 , 44 A. 2d 479 (1945). '['his is the situation in the present case, as we will point out later in this opinion.

(1) We now turn to the first contention of the appellants, i.e., that the appellees had no standing to appeal from the District Council’s action as not being “parties aggrieved” by that action. ⁶⁵⁰ In Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137 , 230 A. 2d 289 (1967), we reviewed in some detail our prior decisions in regard to the necessary allegations and proof of aggrievement in equity and mandamus cases, on the one hand, and in statutory appeals from the Board or District Council in zoning cases, on the other. We stated the applicable principles to zoning appeals as follows: “(a) It is sufficient if the facts constituting aggrievement appear in the petition for appeal either by ■ express allegation or by necessary implication. Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A. 2d 294 (1966). “(b) An adjoining, confronting or nearby property owner is deemed, primo facie, to be specially damaged and, therefore, a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for appeal and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved.

Thus, in Chatham Corp. v. Beltram, 243 Md. 138, 147 , 220 A. 2d 589 (1966), the party seeking rezoning offered expert testimony that there would be no diminution in value of adjoining houses—one of which was owned by the protestant — if the rezoning came about. The trial court found, on conflicting evidence, that the protestant was a person aggrieved, and we held there was no error in that ruling. “(c) A person whose property is far removed from the subject property ordinarily will not be considered a person aggrieved. Wilkinson v. Atkinson, 242 Md. 231 , 218 A. 2d 503 (1966); DuBay v. Crane, supra; City of Greenbelt v. Jaeger, 237 Md. 456 , 206 A. 2d 694 (1965); Marcus v. Montgomery County Council, 235 Md. 535 , 201 A. 2d 777 (1964); Pattison v. Corby, 226 Md. 97 , 172 A. 2d 490 (1961). But he will be considered a person aggrieved if he meets the burden of alleging and proving by competent evidence —either before the board or in the court on appeal if ⁶⁵¹ his standing is challenged—the fact that his personal or property rights are specially and adversely affected by the board’s action.” ( 247 Md. at 144-45 , 230 A. 2d at 294-95 ).

In the present case, the petition for appeal by the protesting property owners expressly alleged that the appellees were personally and specially affected in an adverse way because they (1) lived within 400 to 850 feet of the subject property; (2) their use and enjoyment of their residential property would be disturbed by the rezoning; (3) the subject property is located at a higher elevation than their properties and is visible from their properties; and (4) the rezoning would result in a financial detriment to the value of their properties and their investment in those properties. These allegations were put in issue by the answers filed to the petition for appeal and the lower court, quite properly, in view of our decision in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A. 2d 294 (1966), took testimony upon the issue thus raised. Two real estate experts testified, one—Lowell E. Hendrick—for the petitioners and appellees, the other—E. L. Dieudonne, Jr.—for the respondents below and appellants in this Court. The appeal from the decision of the District Council to the Circuit Court was taken by eight property owners on Chats-worth Lane, two of whom, Clark O. Kline and Josephine N. Spencer, took voluntary non-suits at the hearing in the Circuit Court.

Mr. Hendrick testified in regard to the respective distances of the properties of the remaining six appealing petitioners from the subject property as follows : Property owner Distance in feet Location on from subject Chatsworth Lane property James J. McAndrew 6035 360 6040 530 Frank V. Costanza 6027 470 William P. Sommers 6023 530 Loretta F. Lewis 6012 830 Roger 13. Oarlock 6019 590 Spiros A. Siafacas ⁶⁵² Mr. Hendrick also testified that these properties were in sight and sound of the subject property and that, in his opinion, they would suffer a financial loss of between $2000 (for the closest houses) to $1500 (for the houses slightly more distant), although he had made no studies of comparable sales in that, in his opinion, there were no high-rise zones adjacent to single-family residential subdivisions with homes of similar quality to those involved in this case. Although Mr. Dieudonne, Jr. was of a contrary opinion, there was sufficient credible evidence to support the lower court’s finding that the six remaining appealing petitioners were aggrieved and had status to maintain the appeal to the circuit court. We will not hold that his finding was clearly erroneous.

Maryland Rule 886a. The present case is similar in this regard to Chatham Corp. v. Beltram, 243 Md. 138 , 220 A. 2d 589 (1966), in which the lower court found, on conflicting evidence, that the appealing petitioner was a person aggrieved. There is no contention that the six remaining appealing petitioners were not parties before the District Council, so that the appeal from the District Council to the Circuit Court was properly taken by persons having the proper status under the Montgomery County Zoning Ordinance to take and maintain that appeal. (2) Both the hearing before the District Council and the order of the District Council itself (August 10, 1965) occurred prior to our decision in Beall v. Montgomery County Council, 240 Md. 77, 212 A. 2d 751 (August 27, 1965), in which we analyzed in some detail the provisions of the Montgomery County Zoning Law in regard to the R-H zone (originally established by Ordinance 4-124, adopted February 13, 1962) and held that this zone was a “floating” zone rather than the usual Euclidean Zone and that the Maryland “change or mistake” rule did not apply to the granting or rejecting of an application for this type of zone.

On the contrary, the zone is in the nature of a special exception and the vital and decisive determination by the District Council is whether the application complies with the expressed purposes for which the accomplishment of this floating zone was established. These purposes are designed to insure that this floating zone is compatible with the other exist ⁶⁵³ ing uses in the general neighborhood of the property for which R-H zoning is sought. The purposes for which the R-H zone was established are set forth in the Ordinance as follows : “The purpose of the R-H Zone is to provide suitable sites for relatively high density residential development, to accomplish economies in the construction and operation of such public services as transportation, retail shopping facilities, and other community facilities which depend upon convenient access by residents of the area, and so as to prevent undue congestion in sections of the County where such facilities are not available or cannot be conveniently and economically provided. These sites will provide a maximum of light, air, and open space, for the benefit of the residents of the development and for the surrounding area.

Within the limits of these requirements, it is the purpose of the R-H Zone to provide the maximum possible amount of freedom in the design of residential structures and their grouping and layout within the areas classified in that zone; to prevent detrimental effects to the use or development of adjacent properties or the general 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.” It is vitally important that the District Council make appropriate express findings based on adequate evidence that the purposes set forth in the Ordinance for the R-H zone exist and that the project is compatible with the existing uses in the general neighborhood. We held in Bujno v. Montgomery County Council, 243 Md. 110 , 220 A. 2d 126 (1966), however, that in a proper case—arising before our decision in Beall—we could infer that the necessary findings had been made by the District Council. In Bujno , the opinion of the District Council indicated the unique location of the site, the amount of lot coverage permitted in the R-H zone and most importantly that ⁶⁵⁴ “there was expert testimony submitted by the applicant' that the R-H zone is most suitable for this tract.” In the present case, the portion of the opinion of the District Council dealing specifically with the R-H zone is as follows : “The Council finds that development of this property in the R-H Zone with its substantial set back requirements will have no detrimental effect on any single-family residence in the area. Considering the recent improvement to the nearby roads and the immediately planned improvement of Old Georgetown Road, as well as many other recent developments in the neighborhood, the Council further finds that there has been sufficient change to warrant this reclassification.” The District Council did not purport to find that the purposes of the R-H zone were met by the