Montgomery County Board of Appeals v. Walker

Sybert, J., delivered the opinion of the Court. In this appeal we are asked to decide whether the Circuit Court for Montgomery County erred in ordering a member of the Zoning Board of that county to participate and vote on a rezoning application before the Board with respect to which that member sought to disqualify himself because of certain personal and financial interests. The appeal also questions that part of the order which would require the concurring vote of at least three members of the five member Board in order effectually to grant or deny the application, because, in the court’s opinion, a 2-2 vote of the other members of the Board did not amount to a denial which the court could review. The appellees, Albert W. Walker and his wife, applied on September 23, 1960 to the Montgomery County Board of Appeals for a special exception to permit off-street parking on single-family residential property owned by them.

Under the Zoning Ordinance, the Board of Appeals exercises original jurisdiction in special exception cases. A previous application by the same parties had been rejected in February, 1954. On the first day of the hearing on the 1960 application the Board consisted of only four members because of a previously created vacancy. Between the first and second hearing days Philip M. Fairbanks, an attorney, was appointed to fill the vacancy. ⁵⁷⁷ At the outset of the second hearing day, Mr. Fairbanks stated he was disqualifying himself in the matter because he had previously resided in the community where the special exception was sought and had vigorously opposed the original application by appellees in 1954, and also' because, since the time of the first application, he had continuously been legal counsel for an apartment house corporation of which one of the applicants, Mr. Walker, is the sole owner.

On that day and on two subsequent days the hearing proceeded before the other four members of the Board. When they finally voted on the matter the result was a 2-2 split and the Board’s notice of action contained the statement that the application “failed for want of a majority”. An appeal was taken by appellees to the Circuit Court which, after argument on the merits, made a finding that the Board had failed to make a decision in the matter since three members had not concurred as purportedly required by the Zoning Ordinance, and that there was nothing in the record to excuse any member of the Board from participating. Mr. Fairbanks was ordered to show cause why he should not participate, and after a hearing the trial judge remanded the case to the Board for participation of every member.

In the trial court’s opinion, Mr. Fairbanks had not shown sufficiently “substantial or grave reasons” for disqualifying himself. The Board appeals here from the order of the trial court, contending that Mr. Fairbanks was entitled to disqualify himself under the circumstances and that the resulting tie vote by the other members of the Board amounted to a denial of the application which was reviewable as such by the Circuit Court. Appellees have made two motions to dismiss the appeal of the Board, the first on the ground that the appeal is prematurely taken, and the second on the theory that the Board is not a proper party to the appeal. The first argument for dismissal is based on the fact that the trial court made no finding as to the merits of appellees’ application for a special exception, but merely remanded the case to the Board with the direction to Mr. Fairbanks to participate and vote in the matter.

Appellees claim that Maryland ⁵⁷⁸ Rule 835 a, which prohibits appeals from pro forma orders, renders the appeal premature and that the issues now being raised can be heard by this Court at such time as this cause is heard on its merits with no prejudice to the appellant. We do not think this contention is sound. While it is true that no final decision was made on the merits of the application for a special exception, the trial court did in fact determine finally that Mr. Fairbanks was not justified in disqualifying himself and that the resulting tie vote of the Board did not constitute an effective denial of the application. If the case were remanded to the Board at this point for a vote of all members, it is manifest that the question as to whether Mr. Fairbanks is required to vote would become moot, he already having voted.

With the disputed act accomplished, it would then be too late to cure the mischief and prejudice that appellant alleges would result from his vote. Likewise, the question as to the effect of a tie vote can only properly be answered now, since a vote by all members of the Board on the merits cannot result in a tie vote. Both of these issues have been decided finally below and are distinct from the merits of the underlying controversy and this appeal can therefore be distinguished from the appeals which were dismissed in the cases cited by appellees, Hayden v. Walker, 208 Md. 114 , 117 A. 2d 109 (1955), and Nuova Realty Co. v. City of Balto., 197 Md. 266 , 78 A. 2d 765 (1951). Each of those cases involved remand of a case to a zoning board, in Hayden for the taking of additional testimony, and in Nuova Realty Co. for the purpose of fully hearing the controversy before the board.

Unlike this case, the questions raised in both of those appeals were clearly preserved for answer on any subsequent appeal. The second ground urged for dismissal is predicated upon the theory that in the absence of statutory authorization a zoning board has no right to appeal from the decision of a trial court that is adverse to its own finding on the merits of a case. Appellees cite Roeder v. Brown, 192 Md. 639 , 65 A. 2d 333 (1949), and Zoning Appeals Board v. McKinney, 174 Md. 551 , 199 Atl. 540 (1938), to support this contention. For a thorough review of this thorny area see 2 Metsenbaum, Law ⁵⁷⁹ of Zoning (2nd ed.), pp. 1046, et seq.

However, we need not decide whether the Board in this case had such a right of appeal under that theory. The case before us is not the ordinary zoning appeal on the merits of a finding by the Board, but is from the court’s final decision as to Board procedure. Here the correctness of the Board’s conclusion as to the application for a special exception is not in question but rather the very integrity of the Board itself. The challenge here is to the effectiveness of the Board’s action when only four of its members are present, and where the final action of the Board results in a deadlock vote.

In addition, the right of a member of the Board to withdraw because of personal interests is being denied on the ground of the unsubstantial nature of that claim. The Montgomery County Code (1960), § 2-88, provides that “Any party to the proceeding in the circuit court aggrieved by the decision of the court may appeal from such decision to the court of appeals * * The Board here was a party to the proceedings below, and when the validity of its procedures was questioned, an appeal was properly taken by the County Attorney for the whole Board, which would of course also include Mr. Fairbanks. Since the Board and its members are the real parties in interest in the matter before us,, it would be unrealistic to characterize the Board as a disinterested body, the rationale applied in denial of the right of appeal to a zoning board in the McKinney and Roeder cases. We therefore deny both motions to dismiss this appeal and will answer the contentions raised herein by appellant.

I Appellant first urges that under applicable principles Mr. Fairbanks as a member of the Board was justified in disqualifying himself from participating in the decision of the Board as to the 1960 application by appellees for the special exception. We think this contention is well founded. As appellant noted in its brief, the posture of this question appears to be novel in that here the public officer is himself seeking to establish his disqualification by interest to participate in a decision, and appellees are seeking to require his participation. While the more usual situation is that of a ⁵⁸⁰ public officer seeking to prevent his disqualification as to a decision already rendered, the principles governing both situations are the same.

Whether, in a particular case, a disqualifying interest exists, is a factual question and is governed by the circumstances of that case,