Lawler v. Bart Realty Corp.

McWilliams, J., delivered the opinion of the Court. The appellee (Bart) is the owner of 15.9' acres (formerly owned by Hutzler Bros.) in the Catonsville area which for many years has been zoned BM (Business, Major) and which is being developed as a shopping center. In April 1965 Bart was under contract to Korvette Stores to complete the erection of a large building on the property before the 1965 Christmas holidays. All of the requirements of Baltimore County having been' met, Bart applied, on 26 April 1965, for a building permit.

Following customary routine the plans were circulated among the county officials charged with determining whether the plans were in compliance with all of the rules and regulations. The plans were approved by everyone except the Planning Director (Mr. Gavrelis) and the Zoning Commissioner (Mr. Rose). Mr. Gavrelis was prepared to approve the plans and he said he would do so as soon as Mr. Rose gave his approval. This was about the status of-Bart’s application when counsel for appellants telephoned Mr. Rose and asked for a hearing as provided in Section 500.7, Article 5 of the Zoning Regulations.

Mr. Rose, shortly thereafter, told Bart’s counsel that he intended to hold such a hearing. Immediately aware of the mischief which could be created by the dilatory potential of such a proceeding, counsel for Bart, on 7 May, filed a petition for a writ of mandamus to compel the issuance of the permit. On the same day, counsel for appellants filed with Mr. Rose a formal petition for a hearing under Section 500.7, supra. Mr. Rose signed forthwith the order attached thereto setting the hearing for 4 June.

On 20 May, counsel for appellants asked for, and obtained (over Bart’s objection) permission to intervene in the mandamus proceeding. In this posture the case came on for trial on 25 May. Appellants were not present but their attorneys participated in the trial at the conclusion of which Judge Proctor ordered the county authorities to issue the permit and at the same time he enjoined Mr. Rose from holding the hearing set for 4 June. The permit was issued, the hearing was called off and construction was commenced.

We were advised at argument that the building is nearing completion. Since none of the other defendants, including Mr. Rose, have ⁴⁰⁷ taken an appeal, we must first consider, in light of Bart’s motion to dismiss, whether the appellants have sufficient standing or interest to maintain this appeal. Let us begin with the petition for a special hearing filed with Mr. Rose which is reproduced in the appendix to the appellants’ brief but which does not appear in the record. The petition begins “we undersigned citizens [the word “taxpayers” is not used] of Baltimore County” but, despite the insertion of names and addresses, it is uncertain whether they actually signed it.

The Commissioner is requested “to consider Section 23-18 Zoning—-Powers of the County as set forth in the Baltimore County Code 1963 Supplement” the last sentence of which is quoted. The petition concludes with an agreement to pay the expenses of the hearing and a further agreement to be bound by the regulations and restrictions adopted pursuant to the “Zoning Law for Baltimore County.” There are no allegations of illegality, irregularity, hardship, inconvenience or special damage. The petition to intervene in the mandamus proceeding is a little more elaborate. Appellants are described as “citizens and taxpayers” and as “homeowners and property owners within the area immediately adjacent” to Bart’s property.

It is alleged that the petition is filed on behalf of the appellants and “all similarly situated persons.” Reference is made to the order of Mr. Rose setting the date for the hearing and Section 500.7 of the Zoning Regulations is set out in full. Section 23-18 of the Baltimore County Code, supra, is set out—this time in full. Bart’s plans are alleged to be “detrimental to the health, safety, comfort and welfare of * * * [appellants] as well as the public generally” but there is not even a suggestion as to why or how this is so. The petition is not signed by appellants nor is it verified as required by Maryland Rule 321 b.

Appellants argue they are not bound by the rule. However, since it is unnecessary for us to do so, we express no opinion in respect of the applicability of the rule in the present circumstances. Judge Proctor, although expressing some uncertainty as to their standing to intervene, and despite the opposition and objection of Bart, allowed the intervention just before the opening of the trial. The appellants were not present at the trial, ⁴⁰⁸ no witnesses were summoned by them, nor was there offered in their behalf any evidence of any kind.

Bart offered the testimony of Eugene J. Clifford, the County Traffic Engineer, John C. Childs, a consulting engineer, Paul Lee, an architect associated with Childs, George E. Gavrelis, the Planning Director of the County, and John G. Rose, the Zoning Commissioner. Counsel for appellants participated in the trial and cross-examined the witnesses aggressively. Although we have examined the testimony carefully we have not succeeded in discovering the purpose of their cross-examination. The result, however, is plain enough.

They drew from the witnesses a great deal of immaterial information about internal administrative