Levy v. Montgomery County

Marbury, J., delivered the opinion of the Court. Feeling aggrieved because of an opinion and order of the Circuit Court for Montgomery County affirming the County Board of Appeals, which granted the petition of the Evening Star Broadcasting Company, Trustee, for a special exception pursuant to Montgomery County Code, 1965, Section 111-37, the appellants Albert G. Levy and others have brought this appeal. This special exception was requested by the trustee for the Washington Joint Television Tower Steering Committee whose membership included the Evening Star Broadcasting Company, Inc., Metromedia, Inc., National Broadcasting Company, Inc., United Broadcasting Company, Inc., the Greater Washington Educational Television Association, and the Washington Post Company, for the purpose of permitting this group of broadcasters to erect and operate a tower and related facilities from which they could transmit their signals. The applicant claimed that such a tower would permit stronger and better signals to be transmitted throughout the Washington metropolitan region and thereby extend the area of television reception to homes and schools not now being served.

The proposed structures include a 1219 foot free-standing, self-supporting tower and buildings of residential design to house transmitters and related equip ³⁴⁸ ment. The hearing on this petition was held on May 12, 1966, and on May 31, 1966, the Board, by a vote of four to one, granted the special exception allowing the proposed construction. An appeal from that action was taken to the Circuit Court for Montgomery County on June 27, 1966, and that court dismissed the appeal by order dated January 11, 1967, on the finding that there was a preponderance of legally sufficient evidence to support the Board’s findings on all material questions of law and fact, and this appeal followed. The site of the proposed construction is a 3.6364 acre parcel of land, located in Joseph’s Park subdivision, Silver Spring, Maryland.

The property was owned by Lavinia H. Engle, and others, and the applicant had an eighteen months option to purchase, running from November 1, 1965. This property was, at the time of the application, zoned R-60 (one-family, detached residential), as is the surrounding neighborhood. It is situated adjacent to the Capital Beltway, the right-of-way of which forms one of its boundaries. The first question presented by the appellants is “Whether the record below was so incomplete and inaccurate, so misleading and so opposed to actual past and continuing recent and current fact and experience as to have caused the County Board of Appeals for Montgomery County to reach an erroneous decision *