Daihl v. County Board of Appeals

¹⁵⁹ Finan, J., delivered the opinion of the Court. This case is before us on appeal from an order of the Circuit Court for Baltimore County which affirmed an order of the County Board of Appeals for Baltimore County granting a petition seeking the reclassification of two parcels of land. The parcels front on the north side of a paper street known as Riderwood-Lutherville Drive and are part of the Talbott Manor subdivision. The two parcels are separated by two intervening lots which are zoned residential.

All of the lots in both parcels are contiguous to industrially zoned land to the north. This dispute began when Herman Baylus, appellee, petitioned for the reclassification of the two parcels from residential R-6 zoning to industrial M-L zoning. He also asked that the set-off and area restrictions, which are generally applicable to industrially zoned property which abuts on residential, be relaxed. The Deputy Zoning Commissioner 1 allowed the M-L rezoning for the easternmost parcel along with the requested variances.

However, he denied the rezoning for the other parcel. The easternmost and largest parcel consists of Lots 10 through 19 of the Talbott Manor subdivision and is also contiguous to industrially zoned property directly on the east. The smaller and westernmost parcel consisting of Lots 22, 23 and 24 of the subdivision abuts at the front and on the east and west on residential property. The protestants, appellants, live in the immediate area.

John Young resides on Lot No. 26 and there is a residence constructed on Lot No. 25. Another protestant, Becky, resides approximately 350 feet from the easternmost parcel. The protestant Daihl at the time of the hearing, was in the process of constructing his home approximately 189 feet from the easternmost parcel and he valued his property at approximately $33,000. There is another residence between the Daihl home and the easternmost parcel.

The variances in the Baltimore County Zoning reg- ¹⁶⁰ ulations sought by the petitioner were six in number as follows: 1. Reduction of the required restrictive strip of 100 feet to 30 feet (section 255.1). 2. Reduction of the required front yard from 75 feet to 30 feet (section 243.1). 8. Reduction of the required side yard from 50 feet to 30 feet (section 243.2). 4.

Reduction of the required rear yard from 50 feet to 30 feet (section 243.3)-. 5. Reduction of the required set back for a structure from 125 feet to 30 feet (section 243.4). 6. Reduction of the required floor area ratio from .4 to 2. (section 243.5 and section 101).

The appellants filed an appeal to the County Board of Appeals for Baltimore County. Mr. Baylus, petitioner appellee, filed no cross-appeal. At the hearing, the Board heard testimony as to the zoning of both parcels of land although the appellants contend that since no cross-appeal had been filed, the Deputy Commissioner’s denial of industrial zoning for the westernmost parcel was final. The Board held that both properties should be classified industrial M-L and as to them granted the requested variances.

On appeal by the appellants, the Circuit Court upheld the Board’s decision. The issues raised on this appeal are: 1. Did the County Board of Appeals have jurisdiction to consider the appellee’s request for a review of the Deputy Zoning Commissioner’s denial of the petition for rezoning and variances for Lots Nos. 22, 23 and 24, the westernmost parcel, in view of the fact that the petitioner had taken no appeal from the Zoning Commissioner’s decision. 2. Did the County Board of Appeals err in reversing the Zoning Commissioner’s denial of ¹⁶¹ the rezoning and variances as to Lots 22, 23 and 24, the westernmost parcel. 3.

Did the County Board of Appeals err in affirming the action of the Zoning Commissioner in granting the rezoning and variances for Lots 10 through 19, the easternmost parcel. 1 and II After a public hearing, the Deputy Zoning Commissioner passed an order granting the rezoning and variances sought by the petitioners for Lots 10 through 19 but denied the rezoning and variances sought for Lots Nos. 22, 23 and 24. On July 26, 1967, the protestants filed a timely appeal; however, it must be noted that the petitioners did not file any appeal. It certainly makes no sense or logic to argue that the protestants in perfecting their appeal intended to take an appeal from any action of the Deputy Commissioner other than that portion of his opinion granting the rezoning and variances to Lots 10 through 19, for the simple reason that the issues involving Lots Nos. 22, 23 and 24 were resolved in their favor. The wording of the following notice of appeal filed by the protestants with the Zoning Commissioner supports this reasoning: “Please note an Appeal from the portions of said Order granting the requested rezoning and variances to the Board of Appeals of Baltimore County on behalf of Earl S. Jones, et al., residents and protestants.” (Emphasis supplied.) Section 500.10 of the ordinance, which is the general provision regulating appeals, provides in pertinent part: “Any person or persons, jointly or severally or any taxpayer, or any official, office, department, board or bureau of Baltimore County, feeling aggrieved by any decision of the Zoning Commissioner shall have the right to appeal therefrom to the County Board of Appeals. jf: ¹⁶² The above Section should also be considered in conjunction with Section 501.3 which provides in pertinent part: “* * * All decisions of the County Board of Appeals shall be made after notice and opportunity for hearing de novo upon the issues before said Board. * * *” (Emphasis supplied.) We think it significant to note that Section 501.3 refers to “issues” and does not use the term decision.

Issue connotes a matter which lends itself to a separate finding or separate holding, that is, something which involves a separate point. Webster’s New World Dictionary (College Edition) defines “issue” as: * * * a point, matter or question to be disputed or decided * * We must also take into consideration the language of Section 501.6 which in referring to appeals, states: “Appeals from the Zoning Commissioner shall be heard by the County Board of Appeals de novo. * * *” We think that the context in which the term de novo is used in Section 501.6 and 501.3 (both quoted above) means that on appeal there shall be a de novo hearing on those issues which have been appealed and not on every matter covered in the application. In this sense de novo means that the Board of Appeals may hear testimony and consider additional evidence pertaining to the issue or issues presented on appeal. See Vol. 2, The Law of Zoning and Planning, Rathkoff, ch. 65-30, § 7.

The original nature of a de novo hearing with its quality of newness is in contra-distinction to a review upon the record as exists where matters are heard on certiorari. 73 C.J.S. Public Administrative Bodies and Procedure, § 204. Both parties to this appeal agree that there appears to be no Maryland case adjudicating the question of whether the de novo review power of the Board of Appeals is to be limited to those portions of the Zoning Commissioner’s decision from which an appeal has been taken. However, in Deen v. Baltimore Gas & Electric Company, ¹⁶³ 240 Md. 317 , 214 A. 2d 146 (1965), this question briefly-surfaced but then disappeared. There, a utility company desired to construct a high tension transmission line over a segment of an abandoned railroad right of way 5.1 miles in length.

Three areas were involved. At the hearing the Zoning Commissioner granted the utility company’s request for its intended use in the third segment, but denied its petition regarding the first and second segment. The utility company appealed to the Board from that portion of the Commissioner’s order which required the underground installation of the transmission lines. The Board affirmed the Commissioner’s order as to the overhead construction of lines as to the second segment but reversed the Commissioner as to the first segment.

Thereafter the utility company took an appeal to the circuit court from the denial of its request for the construction of overhead lines as to the first segment, and the property owners appealed the Board’s granting of overhead construction of lines for the second segment. At the hearing in the circuit court, the utility company contended that there was no issue before the Board concerning the authorized construction of overhead facilities in the third segment because the property owners had failed to appeal from the decision. However, the circuit court was of the opinion that the matter before it dealt with the “general subject of ‘overhead’ vs. ‘underground’ transmission lines” and considered the appeal to the Board as encompassing the entire distance of the line. The specific issue as to the scope of the appeal before the Board was not raised in this Court on appeal.

Although Deen does illustrate that appeals may logically be taken from a portion of an order of the Commissioner, it falls short of establishing any precedent as to what may be the scope of a de novo hearing. In the absence of any precedent