Kreatchman v. Ramsburg

²¹² Bruné, C. J., delivered the opinion of the Court. This is another in the lengthening series of shopping center zoning cases to come before this Court. It is the converse of such shopping center cases as Zinn v. Board of Zoning Appeals of Baltimore County, 207 Md. 355 , 114 A. 2d 614 ; Schiff v. Board of Zoning Appeals of Baltimore County, 207 Md. 365 , 114 A. 2d 644 ; Trustees of McDonogh Ed. Fund & Inst. v. Baltimore County, 221 Md. 550 , 158 A. 2d 637 ; Pressman v. City of Baltimore, 222 Md. 330, 160 A. 2d 379 ; and West Ridge, Inc. v. McNamara, 222 Md. 448, 160 A. 2d 907 , in that in those cases a rezoning permitting shopping center use was granted, but here such a reclassification was denied by the zoning authorities. The appellees, the Ramsburgs, filed a petition with the Board of County Commissioners of Howard County (the Board) for the rezoning of a tract of land, part of which was zoned “B-2” (Heavy Commercial) and part of which was zoned “R” (Residential), as an “S-C” (Shopping Center) district.

The petition was referred to the Planning Commission of Howard County for its report and recommendation. That Commission received an adverse report from its staff, with which the Commission agreed in substance, and the Commission submitted an adverse report and recommendation to the Board. The Board held a lengthy hearing, at the end of which it denied the petition. The Ramsburgs then filed this suit in equity to restrain the Board from interfering with their (the Rams-burgs’) use of the property in question for purposes in a S-C category and for a declaratory decree to the effect that the 1954 Howard County Zoning Regulations as applied to this property are unconstitutional and void.

The appellant, Mr. Kreatchman, the lessee of a projected package liquor store in a proposed shopping center less than a mile and a half from the Ramsburg property, was permitted to intervene as a defendant. The owner of the site of the other proposed shopping center did not intervene. Both had opposed the Rams-burgs’ petition before the Board. The case was submitted on a number of exhibits, the transcript of the hearing before the Board and copies of the Howard County Zoning Regulations. ²¹³ The Circuit Court entered a decree restraining the Board from interfering with the complainants-appellées’ use of the property for S-C purposes.

Mr. Kreatchman alone appeals from that decree. No action appears to have been taken by the trial court upon the complainants’ prayer for a declaratory decree. The sufficiency of Mr. Kreatchman’s interest in the controversy will be considered after a further statement of the facts. The Ramsburgs have owned for some years a tract of about 175 or 180 acres of land located on the north side of the Old National Pike, now known as U.S. Route 40, west of St. John’s Lane and about a half mile or less west of the intersection of U.S. Routes 40 and 29, and have recently acquired an adjoining tract of 24 acres.

For a depth of 300 feet their total frontage of some 1980 feet on Route 40 is zoned B-2, and has been so zoned since 1954, when new zoning regulations were adopted for the county. The remainder of the tract is zoned R. Prior to September 11, 1956, a shopping center was one of the enumerated permitted uses in a B-2 zone. Such a use was not then and is not now permissible in an R zone. On September 11, 1956, the Board amended the Zoning Regulations of Howard County by adopting a new section, now designated as Sec. 9.53, which established a new classification—S-C—for shopping centers and by eliminating shopping centers, as such, from the list of permitted B-2 uses (then Sec. 7A, 15).

At the same time it also adopted two new Sections (now 9.51 and 9.52) setting up new classifications, T-l and T-2, for Trailer Parks, one of which was involved in Costello v. Sieling, 223 Md. 24 , 161 A. 2d 824 . This case presents or suggests many questions, most of which we find it unnecessary to decide. Among these are questions (i) as to the relation between planning and zoning, (cf. Zinn v. Board of Zoning Appeals, supra; Schiff v. Board of Zoning Appeals, supra); (ii) as to the proper procedure to be followed with regard to the time and manner of submitting a complete development plan of a proposed shopping center to the Planning Commission of Howard County (a question which could easily be eliminated by a clarifying amendment to the Zoning Regulations); (iii) as to whether ²¹⁴ the new Howard County S-C classification is or is not in the nature of a special exception (cf. Huff v. Board of Zoning Appeals of Baltimore County, 214 Md. 48 , 133 A. 2d 83 ; Costello v. Sieling, supra; Overton v. Board of County Com’rs of Prince George’s County, 223 Md. 141, 149-150 , 162 A. 2d 457 ), (iv) as to the action (fortunately unique, we believe, among the cases which have come before this Court) of one of the County Commissioners, despite a request that he disqualify himself as a member of the Board sitting and voting in a zoning matter in which he was personally interested (Mr. Norman E. Moxley, the Commissioner involved then being the president of the corporation owning the site of the other proposed shopping center, and that corporation actively opposing the granting of the appellees’ petition because of the threat of competition); (v) as to whether or not the Board (which was divided 2-1 on the question, Mr. Moxley being in the majority) acted in an arbitrary or discriminatory manner in denying the appellees’ petition; and (vi) whether or not the decree of the Circuit Court was erroneous either because the Board had at least fairly debatable grounds for refusing to grant the appellees’ petition or because the decree amounted to rezoning by the court and so constituted an invasion of the field of legislative action. (Cf.

Hedin v. Board of County Com’rs of Prince George’s County, 209 Md. 224 , 120 A. 2d 663 ; Board of County Com’rs of Prince George’s County v. Donohoe, 220 Md. 362, 371 , 152 A. 2d 555 .) In his petition to intervene Mr. Kreatchman in stating his interest in the case said that he was “a resident, citizen and taxpayer of Howard County” and that at the hearing of the Ramsburgs’ application for rezoning he had protested the request therefor, as would appear from the stenographic record theretofore filed in this case. Whether or not his stated interests would warrant his intervention if this case were an appeal from a decision of the Board of Zoning Appeals of Howard County under Sec. 236 of Code of Public Laws of that County (Everstine’s Ed., 1957) 1 is not the question be ²¹⁵ fore us, for this is not such a case. Neither is it an appeal from the County Commissioners to a Circuit Court under Code (1957), Art. 5, Sec. 27. That section is not applicable to zoning cases.

Ertter v. North Washington Cemetery, Inc., 200 Md. 251 , 88 A. 2d 578 . This is an equity suit directed against allegedly illegal and unconstitutional action of the Board in refusing to grant the appellees’ petition for rezoning, and the rules of equity as to interest therefore apply. The first problem with regard to the question of the sufficiency of Mr. Kreatchman’s interest is whether or not that question itself is properly before us. The sufficiency of his interest to maintain an appeal is a question which this Court can and must decide and it is one which the trial court would not have had the power to decide.

Therefore the limitation stated in Maryland Rule 885 against this Court’s deciding any question (other than one of jurisdiction) not tried and decided by the trial court has no application. Other Maryland Rules relating to appeals, we think, do apply. These are other Rules dealing with the dismissal of appeals, among them being Rules 835 a and 835 b. Under these Rules this Court may, on its own motion or on motion by any party, dismiss an appeal on any of seven grounds stated in Rule 835 b, one of which (1) is that an appeal is not allowed by law, and another of which (7) is that the case has become moot.

Ordinarily, none of these seven grounds would present a question that had been or even that could have been decided by the trial court. (Mootness might have arisen and been decided in the trial court, in which event a question might arise as to whether dismissal of the appeal or affirmance of the judgment would be appropriate.) It so happens that in the present case the sufficiency of Mr. Kreatchman’s interest to sustain his appeal presents substantially the same question as the sufficiency of his interest to warrant intervention. See Miller, Equity Procedure, § 354, p. 429, as to appeal, and § 77, pp. 96-97, as to intervention. The trial court permitted intervention, and no objection ap ²¹⁶ pears to have been made thereto, but the trial court’s ultimate holding against the Board was based upon a ground which was equally destructive of Mr. Kreatchman’s right to intervene.

This holding, although the trial court stated that it had “no doubt that the action of the majority of the Board was done in good faith,” was that the action of the Board was arbitrary and discriminatory, since it constituted the use of zoning to grant a preferential benefit to the nearby Normandy Shopping Center; and that the prevention of competition was not a valid basis for denying the appellees’ petition for rezoning. The trial court did not, however (probably because no such action was requested or thought necessary), rescind its order allowing intervention. We need not determine whether the trial court’s decision as to this underlying ground would have been sufficient to satisfy the usual requirements of Rule 885, since we hold that Rule 885 is not applicable here. That the sufficiency of the appellant’s interest to maintain this appeal may be determined by this Court when first raised here is supported, we think, by authorities which include a number of prior decisions of this Court.

Miller, op. cit., § 354, states: “It must appear from the record that the appellant has such an interest in the subject matter of the suit as entitles him to appeal; otherwise the appeal will be dismissed.” See also 2 M. L. E., Appeals, §§ 82 and 87, and the cases therein cited. Mr. Miller cites a number of cases in support of the proposition above quoted from his work. Among them is McDonald v. Workingmen’s Bldg. Ass’n, 60 Md. 589 , in which, as he notes, an appeal was apparently dismissed by the court sua sponte.

The fact that intervention has been allowed in the trial court is not controlling as to the right of appeal. Brashears v. Lindenbaum, 189 Md. 619, 628 , 56 A. 2d 844 ; Lickle v. Boone, 187 Md. 579 , 51 A. 2d 162 ; Preston v. Poe, 116 Md. 1, 6 , 81 A. 178 (special appearance). (Conversely, one who has a sufficient interest may appeal, even though he is not a party of record. Hall v. Jack, 32 Md. 253 .) In the Bickle case the appellant had filed a petition for leave to intervene and the complainant had filed an answer consenting thereto, upon which the trial court entered an order making Tickle ²¹⁷ a party defendant for certain purposes.

The decree of the trial court was in favor of the complainant and Tickle appealed. This Court dismissed the appeal. Obviously, the sufficiency of Tickle’s interest had not even been contested below. In Curley v. Wolf, 173 Md. 393 , 196 A. 285 , the appeal of an original party, which lacked any interest in the outcome of the controversy (which was really between other parties), was dismissed.

In Wagner v. Freeny, 123 Md. 24 , 90 A. 774 , the lack of interest of the appellant seems to have been raised for the first time in this Court, but the appeal was dismissed on that ground. This also appears to have been the situation in Rau v. Robertson, 58 Md. 506 ; McDonald v. Workingmen’s Bldg. Ass’n, supra; Webb v. Baltimore Commercial Bank, 181 Md. 572, 577 , 31 A. 2d 174 ; and Paradise Amusement Co. v. Boehl, 190 Md. 59 , 57 A. 2d 301 . See also In re Buckler Trusts, 144 Md. 424 , 125 A. 177 , and Weinberg v. Fanning, 208 Md. 567 , 119 A. 2d 383 (in which the appellants had been denied leave to intervene below).

Cf. Southland Hills Improvement