Hertelendy v. Montgomery County Board of Appeals

Barnes, J., delivered the opinion of the Court. On an appeal from a decision of the Montgomery County Board of Appeals (Board) granting a variance to Nathan Landow (contract purchaser or Landow), one of the appellees, for a front yard of 50 feet for a lot in Bethesda, Montgomery County (the Landow lot or Lot 23-B), the Circuit Court for Montgomery County (Shook, J.) granted a motion of the Board to dismiss the appeal of Emery Hertelendy, the appellant, who owns two lots, one improved by his dwelling and the other vacant, directly across the street from the Landow property. The ⁵⁵⁷ lower court held that Hertelendy had not shown in his petition for appeal that he was a person aggrieved by the action of the Board and, from the facts, that he was not a party to the proceeding before the Board. The lower court also denied Hertelendy’s petition to amend his petition for appeal.

From a judgment in favor of the appellees for costs, an appeal to this Court was timely taken. We are of the opinion that the lower court erred in both rulings. The Landow lot, Lot 23-B in the Subdivision of the Haney Tract in the town of Bethesda, is located at the northeast corner of the intersection of Arrowood Road (Avenue on the original plat) and Redwood Avenue. The lot contains approximately 30,500 square feet and is pie-shaped.

The curved “base” of the triangularly shaped lot is at the intersection of Arrowood Road and Redwood Avenue and is 241.72 feet curving gently from east to north. The frontage is approximately equal on the two streets. The northerly line of the triangle is 258.1 feet and the easterly line is 241.4 feet. The lot was created on May 1, 1958.

It is zoned R-R (Rural Residential) and the lots in the general area are similarly zoned. In an R-R zone, the main building and its accessory buildings must be located on a lot having an area of at least 20,000 square feet and not more than 25 °/o of the net area of the lot may be covered by buildings. The zoning ordinance further provides in regard to front yards as follows : “Each lot shall have a front building line at least forty feet from and parallel to the front lot line or a proposed street line if such has been established within the lot to provide a front yard. In cases where the majority of lots located on one side of a street between two intersecting streets have been occupied by buildings having a front building line different from the one above stated, any building hereafter erected shall not project beyond the line previously established by these buildings, if erected within three hundred feel of my existing building.” (Emphasis supplied).

The portion of the front yard provision in italics did not appear in the similar provision in the Montgomery County Code of 1955. ⁵⁵⁸ The provision for front yards in the R-R zone, containing the italicized portion, was included in Ordinance of Montgomery County No. 3-206, dated May 31, 1958 and effective June 1, 1958. This ordinance was adopted for that portion of the Maryland-Washington Regional District in Montgomery County and since the entire County is now in the Regional District, that ordinance has county-wide application. On December 12, 1964, Landow signed a contract of sale to purchase Lot 23-B for $29,800, making a down-payment of $2,000. Paragraph 4 of the Addendum to this contract of sale provided that Landow, as purchaser, should proceed in a reasonably expeditious manner to make preliminary plans for a single dwelling house, with recreational facilities, to be used on Lot 23-B. Paragraph 4 further provided that in the event Landow discovered set-backs which would prevent the construction ■of the structure he deemed most desirable, the purchaser, Landow, “shall have the right, with the full cooperation of the Seller, and at Purchaser’s sole expense,” to apply to the Board “for a variance for such set-back or other restriction, and in the event complete relief” were not granted to the purchaser, he should have the right to waive the provisions of Paragraph -4 or to terminate the contract of sale and recover his deposit.

Landow had a site plan prepared showing the proposed dwelling and swimming pool. This site plan, dated March 16, 1965, was prepared by Donald Hudson Drayer, A.I.A., an architect, •and shows a large single residence one-story ranch type dwelling with a kidney-shaped swimming pool in the rear yard — the •apex of the triangle. There is a central portion of the dwelling facing the two streets. This central portion is approximately 81 feet wide, and 38 feet deep.

There are two large wings. The •easterly wing which fronts on Arrowood Road is 40 feet wide with a depth of 50 feet. The northerly wing which fronts on Redwood Avenue has a frontage of 24 feet and a depth of 62.75 ■feet. The easterly wing has a set-back of 50 feet from Arrowood Road and the northerly wing has a set-back of 50 feet from Redwood Avenue.

The central portion of the dwelling has ■a set-back of approximately 68 feet. There is a terrace in the rear of the whole dwelling and to the east of the terrace is the pool area. The pool, itself, is approximately 50 feet long by approximately 30 feet at its widest point. ⁵⁵⁹ Lot 23-A to the east of the Landow lot (Lot 23-B) is improved by a structure which has a set-back of 85 feet from Redwood Avenue. The lots to the south of the Landow lot — lots 24 to 32, respectively, are improved with structures having various set-backs from Arrowood Road.

These set-backs are as follows: Lot 24 (immediately adjoining Lot 23-B on Arrowood Road) 101.5 feet; Lot 25, 140 feet; Lot 26, 128.7 feet; Lot 28, 120.46 feet; Lot 29, 115.71 feet; Lot 30, 119.4 feet; Lot 31, 105 feet; and, Lot 32, 35 feet. On March 31, 1965, Landow filed with the Department of Inspection and Licenses an application for a building permit for the proposed structures and attached the site plan as an exhibit. On the same day, the Building Inspector disapproved the application on the ground that it violated Section 104-7(d)(4) of the Zoning Ordinance (Sec. 111-7(a) of the Montgomery County Code of 1965) in that the “Proposed building projects beyond line previously established by existing building.” Also on March 31, 1965, Landow executed an “Appeal for Variance Under Zoning Ordinance” indicating that he desired a variance from the front yard requirements so that he would have a set-back of 50 feet for the front yard. It was stated in the appeal form that the sub-division plat was recorded on May I, 1958, and that exceptional narrowness, shallowness or shape of lot was claimed.

Landow in listing “Adjoining and Confronting Owners” — to whom notice of the appeal is required to be given by the Zoning Ordinance — gave the owners of Lots 23-A and 24 as well as Hertelendy, the owner of Lots 10 and II, and also listed the owners of Lots 12 and 22. The Board gave notice of the hearing on April 29, 1965 of the appeal to those entitled to receive it by mailing a written notice on April 13, 1965, which was apparently received by those notified, including Hertelendy, on April 14, 1965, as the Board mailed a notice to itself which was received on that date. The hearing of the appeal was heard on April 29, 1965, in accordance with the notice. At the hearing, counsel for Landow when pressed by the Chairman in regard to whether Landow was contesting the correctness of the action of the Building Inspector or was seeking a variance declined (in effect) to elect, stating that the Board could find that no line had been estab ⁵⁶⁰ lished by the existing buildings but if this were found to be established, a variance to- allow a set-back of 50 feet was desired.

It was stated that the Building Inspector believed the set-back for the front yard should be governed by the buildings on Arrowood Road and should be 101.5 feet. Mr. Drayer, the architect, testified that the combined house and lot values in the area would be between $60,000 to $100,000 that more than 50% of the houses were one-story rambler types and that a minor number of houses along Arrowood Road were two-story dwellings. After describing the proposed house and swimming pool, Mr. Drayer testified that it complied with the 25% coverage provision, but that to have a set-back of 101.5 feet would prevent the erection of a nice house on the lot which would have any recreational facilities in the back yard. In his opinion, the shape of the lot created a hardship in that a dwelling in keeping with the neighborhood could not reasonably be erected with such a set-back and the erection of a house not in keeping with the neighborhood would not be saleable.

He also testified, in effect, that the proposed variance would not substantially impair the intent, purpose and integrity of the general plan for Montgomery County as. embodied in the Zoning Ordinance. Hertelendy, who had to be out of town at the time of the hearing, wrote a letter to the Board on April 26, 1965, identifying his property as 7224 Arrowood Road directly across from Lot 23-B. He set out the relevant facts in regard to some of the set-backs on Arrowood Road and vigorously opposed the granting of a variance to Landow to set-back 50 feet. He stated that in his opinion, the erection of a large residence without a greater set-back than 50 feet “would cause a decrease in the market value of my property and would probably also [cause] a decrease in the value of my vacant lot 10 to the east.” He requested the Board to deny the appeal and in view of his required absence from town “to accept this letter in lieu of my appearance, in opposition” to the appeal of Landow. This letter was received into evidence by the Board as Exhibit No. 6.

The Board by a four to one vote, granted the variance, filing written opinions on May 11, 1965. The majority opinion indicated that the front yard provision in the R-R zone was “intended for uniform, rectangular lots of similar size and shape” ⁵⁶¹ and that Landow’s lot “does not fall into category.” The majority was further of the opinion that because of the triangular shape of the lot, there was a hardship justifying the grant of the variance and that such a variance was necessary so that the lot could “be properly buildable”, and that “the rear yard would be practically non-existent if this variance were not permitted, and that a house of this size and cost will increase, rather than depreciate, the value of those houses nearby, and that there will be no substantial impairment of the intent, purpose and integrity of the General Plan.” A dissenting opinion indicated that the exceptional and undue hardship required to be shown for a variance had not been established as the lot was of “adequate size to build a home comparable in size and quality to the established level of the neighborhood without requiring any variances.” It is significant that copies of both the majority and dissenting opinions of the Board were sent to all persons, including Hertelendy, who had received notice of the hearing. On May 27, 1965, counsel for Hertelendy filed with the Board a petition for rehearing alleging errors in proceeding when insufficient notice had been given, that the Board erred in granting the variance and in any event, the Board had no power to grant the variance since the lot was created after the original provision in regard to front yards in an R-R zone was adopted as appeared in the Montgomery County Code of 1955. It was also alleged in the motion that the swimming pool was an accessory building and must be considered in calculating the 25% of the lot coverage and this was not done.

The Board dismissed the motion for a rehearing on June 3, 1965. The applicable provision of the Montgomery County Code in regard to appeals to the Circuit Court for Montgomery County provides: “Any decision by the county board of appeals may, within thirty days after the decision is. rendered, be appealed by my 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 ⁵⁶² such decision, with or without remanding the case for rehearing as justice may require. Whenever any such appeal is taken a copy thereof shall he served on the board by the clerk of the court and the board shall promptly give notice of the appeal to all parties ta the proceeding before it and shall, within fifteen days after the filing of the appeal, file with the court the originals or certified copies of all papers and evidence presented to the board in the proceeding before it, together with a copy of its opinion which shall include a statement of the facts found and the grounds for its decision * * *. (Emphasis supplied.) See Montgomery County Code, sec. 2-92 (1965).

Hertelendy, on June 9, 1965, filed a petition for an appeal from the Board’s decision of May 11, 1965 and also from its dismissal of his motion for a rehearing on June 3, 1965. In his petition, Hertelendy alleged the prior facts and recited that “Aggrieved by this decision (the granting of the variance by the Board) the appellant herein requested a rehearing on this matter which was denied by” the Board. Various alleged errors are set forth in detail and Hertelendy prayed that the variance be vacated and the case remanded for a rehearing before the Board, or, in the alternative, the variance be vacated without such a remand, and that the petitioners have other relief. The Board, on June 10, 1965, gave notice of the appeal to the Circuit Court for Montgomery County to counsel for Landow, counsel for Hertelendy, various public officers, the State Roads Commission, the Board of Education and members of the Board.

Landow filed a motion to intervene on June 17, 1965, and this motion was granted on June 24. He filed his answer to the petition for appeal on June 30. In Paragraph 8 of his answer, Landow alleged that the petition was improperly filed and should be dismissed because it did not show that the appellant was a party aggrieved and a party to the proceeding appealed. Montgomery County was granted leave to intervene on July 6 and on the same day, filed a motion to dismiss the petition for appeal alleging that the petitioner was not a party to the proceeding before the Board, and the submission of the letter ⁵⁶³ from Hertelendy was “not sufficient to invest him with that stature.” The appeal came before the Circuit Court for hearing on December 27, 1965.

The lower court gave the petitioner leave to file a memorandum before January 11, 1966. On January 11 the petitioner filed a motion to amend the petition for appeal to state that he was a party aggrieved, and that such an allegation was fully supported by the record, but counsel for the petitioner omitted the allegation in drafting his first petition of this nature by using as a form a prior petition for appeal which omitted this allegation. Hertelendy filed an elaborate written memorandum with the Circuit Court on January 11. On January 17, Landow filed an answer in opposition to allowing the motion to amend and a memorandum in support of his position.

Montgomery County and the Board filed a “motion” in opposition to the motion to amend and on January 18 filed an answer to the petition for appeal. They also filed a memorandum on January 18 in support of their motion to dismiss the petition for appeal. The memoranda of January 11, 17 and 18 were included in the record pursuant to an order of this Court dated May 4, 1966, upon the motion of the appellant alleging that two of the memoranda were necessary to show that the appellant had raised certain questions which were not decided by the lower court. Unfortunately all of these memoranda are printed in full in appellant’s appendix and in large part duplicate material in the briefs.

The lower court filed a written opinion and order on February 10, 1966, which, as we have already indicated, denied the petition to amend and dismissed the petition for appeal. In our opinion, the lower court should not have granted the motion of Montgomery County and the Board to dismiss the petition for appeal and should have granted the appellant’s petition to amend. Our recent decision in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A. 2d 294 — rendered after the decision of the lower court ■ — - is decisive of these two rulings. In Town of Somerset the appellants filed an order for appeal with the Board which did not allege that the appellants were ⁵⁶⁴ aggrieved by the decision of the Board, but stated that “it was