Bryniarski v. Montgomery County Board of Appeals

Barnes, J., delivered the opinion of the Court. This zoning appeal involves the granting by the Montgomery County Board of Appeals (the Board) of the application of the Hillandale Medical Corporation for special exceptions to permit the construction and operation of an apartment hotel on 1.7697 acres of land zoned C-0 (commercial-office), and for off-street parking, in conjunction with the apartment hotel use, on 4.1260 acres of adjoining land zoned R-90 (single-family residential). The tract is located on the north side of Elton Road, Silver Spring. There are two principal questions presented : (1) whether the appellants or some of them as protest ¹³⁹ ing property owners have standing to appeal as parties “aggrieved ”, and (2) whether there was a denial of due process of law to the appellants by the refusal of the Board to permit cross-examination of the applicant’s witnesses at the hearing before the Board.

West of the subject property is land zoned 1-1 (light industrial), developed by the large distribution plant of the Coca Cola Bottling Company for the Montgomery County area. Still farther to the west, adjoining the Coca Cola property, is the Hillandale Shopping Center, erected on land zoned C-l (local commercial). To the south of the subject property, across Elton Road, is land zoned C-l on which there is an abandoned dairy building, and beyond this property is the interchange of the Capital Beltway and New Hampshire Avenue. The eastern boundary of the subject property is abutted by a community swimming pool, a vacant parcel and one single-family residence.

Farther to the east are additional single-family residences along Elton Road. To the north of the subject property, abutting the R-90 land to be used for off-street parking, is additional R-90 land, upon which several single-family residences are erected, including one fronting on Green Forest Drive, owned by Albert Bryniarski, Jr., one of the appellants. To the southeast of the subject property on Elton Road there are single-family dwellings, one of which, 1771 Elton Road, is owned by Lt Col. Richards O. Stewart, one of the appellants.

The property 1779 Elton Road is owned by Sheldon J. Siegel, one of the appellants, who wrote a letter, dated May 11, 1965, to the Board protesting the granting of the application and stating the reasons for his opposition. This letter appears as Exhibit 12 in the proceedings before the Board. At the hearing before the Board on May 13, 1965, John M. Lothschuetz, counsel for the Hillandale Citizens Association and for the “property owners immediately adjoining” the subject property, requested a continuance so that his clients could employ local counsel and obtain expert witnesses to testify for them. This request was denied by the Board.

The applicant produced six witnesses to testify for it. The architect, Theodore R. Cromar, Jr., had prepared the site plan and other exhibits. He testified fully in regard to the proposed ¹⁴⁰ ■apartment hotel and off-street parking and stated that they complied with the requirements of the Hillandale Master Plan. At the conclusion of Mr. Cromar’s testimony, the chairman asked counsel for the applicant to call his next witness and the following occurred: “Mr. Lothschuetz: Do you [I] have an opportunity for the opposition to cross examine him in any way? “Chairman Noyes: Let me see.

You are representing whom ? “Mr. Lothschuetz: The Hillandale Citizens Association, sir. “Chairman Noyes: What is your name? “Mr. Lothschuetz: My name is Lothschuetz. “Chairman Noyes: You say you are representing the Hillandale Citizens Association ? “Mr. Lothschuetz: Yes, and property owners immediately adjoining the land. “Chairman Noyes: What I am trying to drive at, the citizens association does not have standing to sue in court. “Mr. Lothschuetz: Mr. Chairman, I do have specific authorization from the property owners who adjoin this proposed apartment hotel to represent them in this matter. If I cannot cross examine, Mr. Chairman, I want to note an exception for the record. “Chairman Noyes: Go ahead. You may call any witnesses you like after the petitioner finishes his case. “Mr. Lothschuetz: You have no opportunity at all to cross examine? “Chairman Noyes: I might say, to clarify, the Board adopted new rules. All five Members concurred.

They are to be submitted to the County Council for approval. Our procedure would be the same as the County Council, eliminating cross examination. These things drag on and on. You call anybody you want when he finishes. ¹⁴¹ “Mr. Eothschuetz: When were the rules submitted to the County Council ? “Chairman Noyes: I don’t know. “Mr. Eothschuetz: Will the County Council have to, approve these rules ? “Chairman Noyes: Yes.

Until they are approved, we are operating under those rules. The rules don’t say anything about cross examination. This is something that cropped up over the years and we are trying to conform to the same procedure as the County Council.” After being advised that there had been a death in Mr. Cromar’s family, and he did not wish to remain until the end of the applicant’s case to be called by Mr. Lothschuetz as his witness, Mr. Lothschuetz consented to call him as his witness at that time rather than later and asked Mr. Cromar a few questions. Thereafter, the applicant produced a professional engineer and land surveyor, a real estate broker and appraiser, a land planner and traffic engineer, a real estate consultant, and Fred G. Williams, the then owner of the property.

At the conclusion of the testimony of Mr. Williams, Mr. Lothschuetz proceeded to examine him as his witness. The testimony of the witnesses for the applicant was full and indicated that the proposal complied with the applicable zoning laws in various regards, that the special exceptions were desirable and should be granted and that there would be no traffic hazard and no depreciation in the value of neighboring properties resulting from the granting of the application. Counsel for the protestants then produced five witnesses, Cob Frederick F. Vreeland, 10509 Sweetbriar Parkway (not an appellant), Albert F. Bryniarski, Jr., 10210 Green Forest Drive (an appellant), Lt. Col.

Richards O. Stewart, 1771 Elton Road (an appellant), Mrs. William Zeigler, 1817 Elton Road (not an appellant) and Albert Jack Oakes, 1819 Elton Road (not an appellant). Mr. Lothschuetz, 2006 Edgewater Parkway, counsel for the protestants, also presented testimony. He is an appellant. These witnesses gave their reasons for their opposi ¹⁴² "tion including hazards from traffic, depreciation to the value •of their properties and other injuries which would result, in their opinion, from the granting of the application.

As already indicated, the Board accepted the letter of May 11, 1965, from Sheldon J. Seigel, 1779 Elton Road, and filed it as an exhibit in the case. The Board, on June 2, 1965, filed a carefully considered opinion finding that the applicant had met the burden of proof in •establishing that its proposal met the requirements of section 104-27(3) (b), Montgomery County Code (1960), and passed an order granting the application for the special exceptions. A timely appeal was taken from this order to the Circuit Court for Montgomery County by Albert F. Bryniarski, Jr., Richards •O. Stewart, Sheldon Seigel, Herbert M. Avram, Dr. Francis N. Waldrop, Samuel H. Murray, and John M. Lothschuetz. In the petition for appeal, the petitioners were described as '“owners of property immediately contiguous or in close proximity of the proposed site for the apartment hotel” and a vicinity ■plat was attached showing the location of their properties with reference to the location of the subject property.

The petition further recited that the petitioners, as contiguous owners or •owners in close proximity, -were “eligible to bring this petition as aggrieved parties according to the principles of law laid down by the Maryland Court of Appeals.” The petition alleged error in regard to the failure to grant the continuance, prejudice and bias on the part of the Board against the protestants at the hearing, the denial of the right of cross-examination, and various •challenges to the granting of the special exceptions on the merits which allegedly “aggrieved especially the petitioners herein ■as to traffic, noise and quiet enjoyment.” Judge Moorman, affirming the action of the Board, decided that the petitioners were not parties aggrieved, that the Board •did not abuse its discretion in denying the continuance, that the hearing was fairly and impartially held, and that although •cross-examination should have been permitted, there was no ■prejudice to the petitioners because they either called the applicant’s witnesses as their own witnesses and examined them •or had the opportunity to make them their witnesses and did '■not do this. ¹⁴³ The same questions raised in the petition for appeal to the Circuit Court for Montgomery County were raised, briefed and argued before us, but we find it necessary to consider only the questions of the status of the appellants to appeal and of the denial of due process of law by the refusal of the right of cross-examination. We have concluded that the lower court was in error in his rulings on both of the questions mentioned and a reversal and a remand to the Board for a new hearing are required. 1. Status of the appellants to appeal. Under the applicable statutory law, two conditions precedent must be met before a person has standing to appeal to the Circuit Court for Montgomery County from a decision of the Board: (1) he must have been a party to the proceeding before the Board, and (2) he must be aggrieved by the decision of the Board.

In the present case, three of the appellants were parties at the hearing before the Board. They are the appellants Bryniarski and Stewart who testified before the Board and the appellant Seigel, who by filing a letter which was accepted and filed by the Board as part of the record in the case, became a party, as we recently held in Hertelendy v. Montgomery County Board of Appeals, 245 Md. 554 , 226 A. 2d 672 (1967), subsequent to the decision of the lower court in the case at bar. The question then arises as to whether these three appellants were aggrieved by the decision of the Board. The requirement that a person must be “aggrieved” in order to appeal to the Board and from the Board to a court of record was originally included in the Standard State Zoning Enabling Statute and generally appears in State Zoning Enabling Acts and in municipal zoning ordinances throughout the United States.

See 2 Rathkopf, The Law of Zoning and Planning, sections 63-14 to 63-15 (3d ed.) and particularly note 3. This requirement is contained in the Maryland Zoning Enabling Act, Code (1957), Article 66 B, sections 7 (d) and 7 (j). The term “person aggrieved” generally appears in the municipal zoning ordinances, including, as we have indicated, the Montgomery County Zoning Ordinance. There have been many cases in ¹⁴⁴ Maryland and in other states considering the meaning of “a person aggrieved,” but, apparently, the word “aggrieved” has never been legislatively defined.

Generally speaking, the decisions indicate that a person aggrieved by the decision of a board of zoning appeals is one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally. DuBay v. Crane, 240 Md. 180, 185 , 213 A. 2d 487 (1965). The circumstances under which this occurs have been determined by the courts on a case by case basis, and the decision in each case rests upon the facts and circumstances of the particular case under review.

Certain principles, however, have evolved. They are as follows: 1. There is a distinction between the degree of certainty of allegations and proof of aggrievement in cases in equity and in cases involving a petition for a writ of mandamus on one hand, and in statutory appeals from the board to the original court of record on the other. (a) When the suit is in equity and a declaration nullifying a zoning ordinance for constitutional or other reasons is sought, the allegations by the plaintiff of how he is specially damaged by the zoning ordinance must be definite, and he must meet the burden of showing such special damage by competent evidence.

Richmark Realty Co., Inc. v. Whittlif, 226 Md. 273, 282 , 173 A. 2d 196 (1961); Loughborough v.