Citizens Coordinating Committee on Friendship Heights, Inc. v. TKU Associates

Levine, J., delivered the opinion of the Court. We granted a writ of certiorari in this case to decide whether appellants should have been permitted to intervene in a declaratory judgment action and whether an appeal from an order denying the requested intervention was properly dismissed. Appellants’ motion for leave to intervene in the case of TKU Associates v. Montgomery County et al. was denied by the Circuit Court for Montgomery County (Mathias, J.). The appeal of that decision to the Court of Special Appeals was dismissed in an unreported order.

We have concluded that the Court of Special Appeals improperly dismissed the appeal and that the circuit court erred in denying the requested intervention. This case, we are told, is one of some 15 now pending in the circuit court which can trace its origin to the actions taken by the Montgomery County Council (the council) in the spring and summer of 1974. In May of that year, the council, acting on the recommendation of the Mary ⁷⁰⁷ land-National Capital Park and Planning Commission (the commission), adopted the “Friendship Heights Sector Plan” for a portion of the Chevy Chase area bordering the District of Columbia. Shortly thereafter, the council implemented the plan by approving a number of sectional map amendments, one of which rezoned the eight-acre tract owned by appellee Woodward & Lothrop, Incorporated from the C-2 (general commercial) classification to the more restrictive CBD-1 (central business district) classification.

Some three years prior to the flurry of zoning activity, Woodward & Lothrop, the owner of a department store at the site for almost 20 years, had formulated an ambitious redevelopment plan for the property. The proposed project would have conformed with the existing C-2 zoning classification and the master plan then applicable in that area. Among the steps taken to further the redevelopment was the filing in 1972 of a building permit application and the recordation of a new record plat which allegedly embodied substantial dedications of land and other costly undertakings on the part of the landowner. The “downzoning” intervened, however, before Woodward & Lothrop could obtain its building permit.

Following adoption of the zoning map amendments in 1974, Woodward & Lothrop noted a statutory appeal to the circuit court pursuant to the Montgomery County Code. Joined by its developer and general contractor, it also filed this declaratory judgment action against Montgomery County, the county executive, the council and the commission. In their sole special prayer for relief herein, appellees seek a declaration that their “development rights under the existing ‘C-2 — General Commercial’ zoning .. . are not affected by any zoning change purportedly implemented” by the sectional map amendment. The essence of appellees’ complaint is that after they had filed their building permit application and recorded the new record plat in accordance with the then-existing C-2 zoning classification, the defendants had wrongfully caused the Washington Suburban Sanitary Commission “to delay ⁷⁰⁸ action on [their] application for a sewer permit” until such time as their property “could be downzoned.” 1 While this case was pending in the circuit court, appellants, expressly relying upon Maryland Rule 208, 2 sought leave to intervene as defendants. 3 In their motion, they alleged that as aggrieved parties they previously had been granted leave to intervene in the numerous zoning appeals spawned by the Friendship Heights Sector Plan, including that brought by appellees, and that they would be equally aggrieved by any action of the court in this case which might have the effect of reversing or modifying the rezoning.

To support their asserted right to intervene, they also alleged, with Rule 208 obviously in mind, that “representation of the interests of [appellants] by existing parties may be inadequate and [appellants] will be bound by any judgment in the instant action.” Alternatively, they claimed that the administrative appeal had “questions of both law and fact in common with those of the instant ⁷⁰⁹ action.” Appellees vigorously resisted these claims in a memorandum and at oral argument. At the conclusion of the hearing, the court denied the application to intervene because it did not find “inadequacy of representation”; nor was it of the opinion that appellants would be “bound by a judgment in this action.” The court also rejected the motion on “permissive” grounds because it could find no “question of law or fact that the prospective intervenors [might] have which is in common with a [question of] law or fact in this action,” and because appellants had not filed a “timely application.” Since the appeal from that decision was dismissed by the Court of Special Appeals, we turn first to the question of appealability. (1) Although we have never flatly passed upon the appealability of an order denying intervention asserted as a matter of right, the Court of Special Appeals has recently done so in Nat'l 4-H Club v. Thorpe, 22 Md. App. 1, 9 , 321 A. 2d 321 (1974). There, it held that the denial of intervention claimed as of right under Rule 208 a is an appealable order.

In so holding, it followed a line of cases decided under Rule 24 of the Federal Rules of Civil Procedure, the relevant part of which, in its pre-1966 form, was identical to Rule 208 a. Where intervention is permissive, however, the order denying intervention is appealable only if the court has abused its discretion. 3B Moore’s Federal Practice ¶ 24.15. Prior to the adoption of our rules of procedure, when there was no provision for intervention as a matter of right, we had applied the latter rule in Maryland. See, e.g., Weinberg v. Fanning, 208 Md. 567, 571 , 119 A. 2d 383 (1956); Stirn v. Radio-Keith Etc.

Corp., 163 Md. 398, 400-01 , 163 A. 696 (1933). The federal appellate courts traditionally have followed a general rule of reversing an erroneous denial by the trial court of intervention of right or abuse of discretion in denying permissive intervention, but dismissing the appeal where the trial court had properly denied the application for intervention. See generally Moore’s Federal Practice, supra-. ⁷¹⁰ C. Wright & A. Miller, Federal Practice and Procedure, Civil, § 1923 (1972). Later cases, however, have recognized the impracticability of resolving the threshold issue of appealability without first deciding the merits.

See, e.g., Levin v. Ruby Trading Corporation, 333 F. 2d 592 , 594 (2d Cir. 1964). The recent trend, therefore, has been in the direction of recognizing the necessity of examining the propriety of the denial by the trial court. Under this view, the appellate court affirms where the denial of the intervention is deemed to be correct and reverses where it concludes that intervention of right was erroneously denied or the trial court abused its discretion in refusing to allow permissive intervention, in effect treating the denial as an appealable order. Moore’s Federal Practice; Wright & Miller, Federal Practice and Procedure, both supra.

In Nat'l 4-H Club v. Thorpe, supra, 22 Md. App. at 9 , the Court of Special Appeals made explicit reference to this shift in the federal decisions and affirmed a denial of intervention after finding the appellant there to be without any right to intervene under Rule 208 a. We think that the procedure applied there and in the more recent federal cases is preferable and we shall follow it here. We simply hold that the denial of intervention claimed as of right under Rule 208 a is appealable. Notwithstanding its application of the current federal procedure in Nat'l 4-H Club , here the Court of Special Appeals dismissed this appeal with the statement that “this appeal is not allowed by law” and the handwritten interlineation “See Rule 208 .. . sec. a.” The process by which that court reached its decision is not discernible.

Accordingly, since the denial of a motion to intervene as of right is an appealable order, the Court of Special Appeals erred in dismissing the appeal and its order shall be vacated. In the interest of judicial economy, we shall now consider the appeal of the denial, by the trial court, of appellants’ motion to intervene. (2)a As we have indicated, the language of Rule 208 a, ⁷¹¹ prescribing when intervention shall be permitted as a matter of right, is identical to Federal Rule 24 as it stood prior to 1966. By that time, a division of authority had emerged in the reported federal decisions regarding the requirement that the applicant for intervention “is or may be bound by a judgment in the action.” Most cases deciding the question interpreted the word “bound” narrowly in requiring a showing that the judgment would have a res judicata effect upon the intervenor. 4 A stubborn minority, however, clung to the view that a more utilitarian and realistic interpretation should be applied, permitting intervention whenever a judgment would put the applicant at a practical disadvantage in his own litigation or would substantially affect the would-be intervenor’s ability to protect his interest. 5 With an obvious