Cohen v. Willett

Singley, J., delivered the opinion of the Court. The appellants, Jack C. Cohen and Maurice Lipnick, sought and received from the Board of Appeals for Montgomery County a special exception under §§ 111-9 (b), 111-10 (b) and 111-37 q — 2 of the Montgomery County Zoning Ordinance (1958) in order that they might construct and operate a care home of 181 units on a 3.9 acre tract zoned R-60 (one family, detached residential, 6,000 square feet lots) in Silver Spring. 1 John H. Willett and others, owners of neighboring properties, took an appeal to the Circuit Court for Montgomery County. From an order of that court remanding the case to the County Board of Appeals for additional consideration, this appeal was taken. While the parties state them somewhat differently, the case presents two issues: First, was the order sufficiently final in character to be the subject of an appeal to this Court?

Second, did the ' lower court have the power to remand the case for additional consideration, where there was no finding that the Board of Appeals had not acted in accordance with law? Where the issue on appeal is not the wisdom or correctness of an order, but rather whether the lower court had power to pass an order, an early appeal will lie, Montgomery County Council v. Kaslow, 235 Md. 45, 51 , 200 A. 2d 184 (1964); Eastern States Corp. v. Eisler, 181 Md. 526, 535 , 30 A. 2d 867 (1943). The cases on which the appellees rely in support of their ¹⁹⁶ contention that the order entered below was not finally dispositive of the appellants’ rights, and therefore not appealable, are readily distinguishable. Hayden v. Walker, 208 Md. 114 , 117 A. 2d 109 (1955) dealt with a remand for the taking of additional testimony, yet the holding in that case was substantially attenuated in the second appeal, Robertson v. Board of Appeals, 210 Md. 190, 196-97 , 122 A. 2d 751 (1956).

Nuova Realty Co. v. City of Baltimore, 197 Md. 266 , 78 A. 2d 765 (1951) was concerned with a remand for a full hearing. It will be remembered that here, the case was “remanded ... for additional consideration.” This discussion leads naturally to a consideration of the question whether the lower court had the power to pass the order, and we have not the slightest doubt that it did not. Montgomery County Code (1965) § 2-92 which regulates appeals from the Board of Appeals, provides in part: “Any decision by the county board of appeals may, within thirty days after the decision is rendered, be appealed by any person aggrieved by the decision of the board and a party to the proceeding before it, to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require.” 2 (Emphasis supplied) In Robertson v. Board of Appeals, supra, 210 Md. at 196 , we held that the Circuit Court for Montgomery County