Montgomery County v. Merlands Club, Inc.

Hammond, J., delivered the opinion of the Court. On the representation of Montgomery County that the matter was one where “special circumstances render it desirable and in the public interest” that we hear the case, we required by certiorari to the Circuit Court for Montgomery County under the authority of Section 5, (V) of Article 25A of the Code (1951 Ed.) that the case be certified to us for review and determination. That Court had reversed the County Board of Appeals of Montgomery County, in its denial of a request to allow the use of certain land in a Residential A area as a private club. The property involved is a tract of some twenty-three and a half acres known as “The Merlands”, part of which abuts on Georgia Avenue west of Wheaton, Montgomery County, and which is near an area of rapidly growing population.

Victor R. Messall owns the Merlands. He found that he could not profitably sub-divide it and filed an application for permission to use the property as a private club. The zoning ordinance for the regional district of Montgomery County, Chapter 176 Montgomery County'Code (1950) does not allow the use of property for a private club unless it is in a Commercial ²⁸³ “D” zone or Industrial “E” zone. The ordinance prohibits the use of property as a private club in a residential zone but does contain provisions in Section 13 g of Chapter 176 as follows: “Upon appeals, the Board is hereby empowered to decide requests for and grant requests for the following special exceptions and decisions upon the following special questions when in the judgment of the Board such special exceptions and grants and decisions shall be in harmony with the general purpose and intent of the zone plan embodied in these Zoning Regulations and the Zoning Map, and will not tend to affect adversely the use and development of neighboring properties and the general neighborhood in accordance with said zone plan: (1) Permit, in any residential district, an aviation field, a radio broadcasting station, a private club, a country club as such is defined by existing State and county law applicable to Montgomery County, or an antique shop in residence of proprietor when operated as a home occupation”.

The Department of Inspection and Licenses of Montgomery County, having denied his application, Mr. Messall applied to the County Board of Zoning Appeals for the granting of a special exception permitted by Section 13 g. The Board held a hearing on the application on May 1, 1952 and denied it three days later. On request, a re-hearing was held and Merlands Club, Inc. was substituted as the applicant. Two days later the Board again denied the application.

A petition of appeal was filed with the Circuit Court under the authority of Section 5 (V) of Article 25A of the Code (1951 Ed.), under which the Court is given the power “. . . to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require.” There had been no objection and no protestants at either hearing. Montgomery County was granted leave to intervene in the case and after hearing, the Court, on August 10, 1952 entered its order that all further proceedings should be held in abeyance ²⁸⁴ pending another re-hearing by the Board of Appeals. On August 15, 1952 the Board of Zoning Appeals ceased to exist and its functions and powers were transferred to the County Board of Appeals, all pursuant to Chapter 15 of the laws of Montgomery County of 1952, adopted by the County Council under the authority of Section 5 (V) of Article 25A of the Code (1951 Ed.). In compliance with the order of the Circuit Court, the County Board of Appeals again heard the matter on October 25, 1952.

On November 7, the Board denied the application. Thereafter, the Circuit Court rendered its opinion and Order of January 14, 1958, which reversed the decision of the County Board of Appeals and ordered that the application of Merlands Club, Inc. be granted. The appeal is from this Order. The evidence on which the Board finally acted showed that the applicant set up as a non-profit organization, exempt from Federal Income Tax, had a charter, a constitution, and by-laws substantially identical with other well-known clubs in the area, such as the Chevy Chase Club, the Columbia Golf and Country Club, the Kenwood Golf and Country Club, the Edgemoor Club and the Prince Georges Golf and Country Club.

It was to be managed by a board of trustees and its members were such trustees and such other persons as were to be elected to membership. Family memberships were to be limited to seven hundred fifty in number and single memberships to five hundred. The intial initiation fee for family membership was One Hundred Fifty Dollars and single membership was One Hundred Dollars. Dues have been set at One Hundred Fifty Dollars a year for family membership and One Hundred Dollars a year for single membership.

Payment of the initiation fee and dues entitle members to all privileges and the use of all facilities of the club. There was to be a club house, a swimming pool, tennis courts, outdoor fireplaces, horseshoe pitching areas, picnic and play grounds, softball grounds, badminton greens, and shuffleboard equipment. Mr. Messall was to séll the property to a group who would then ²⁸⁵ lease it for five years (with an absolute right to buy) to the corporation which was to conduct the club. The application was denied by the Zoning Board after the original hearing and after the first re-hearing, on the ground that the project was primarily a private business venture and did not come within the meaning of the term “private club”, as used in the ordinance.

Another reason given, although apparently this was a parrotting of the statute, was that the proposed use would not be in harmony with the zoning plan. The Maryland-National Capital Park and Planning Commission made no recommendation to the Board in connection with the original hearing, although, subsequently it did give a disapproving report. However, the rehearing was attended by its planning engineer, and as a result, the Park and Planning Commission staff made a detailed inspection of the property and examined all of the material facts in connection with the application and then issued a supplementary report, recommending that the Board “. . . defer action on (the) application and that all possibilities be explored thoroughly to establish a country club in the usual sense of the term as described above.” Without waiting for the recommendation, which was to come from the Commission, the Board of Appeals, two days later, denied the second application. After the Circuit Court for Montgomery County remanded the case for the purpose of receiving additional evidence and the recommendation of the Planning Commission, the Commission made such a recommendation.

Its substance was that the application be approved if the integrity of the project could be assured by conditions and restrictions which would allow revocation of the permit if not complied with. It found that the location and arrangement of the property made it “. . . ideal, for the proposed use; . . .” and that “Density of population and lack of developed recreational facilities in this area, plus the steadily decreasing amount of open land available for any future recreational development, would make public acquisition of this property extremely de ²⁸⁶ sirable. Short of this, the best solution would be to bring about the establishment and eventual acquisition of this club by an interested membership.” The Board, in its final opinion, did not agree and adhered to its previous position. It gave as a reason for denying the application, that even though Merlands is adjacent to a sparsely settled area, that area is being rapidly developed and is in the potential path of proposed sub-divisions of one-family houses.

The Board then said, although this would seem to be a non sequitur: “. . . We find no facts to show that ‘the need for the exception is of such urgency that injustice will result if the exception to the rule is not applied’.” It had as another reason for denying the application, that it would not tend not to affect adversely the use and development of the neighboring properties and the general neighborhood. No facts are given as a basis for this negative conclusion except that traffic would be increased on Georgia Ave. and the lack of sewerage facilities might create a health and sanitation problem. The third reason given was that the statute does not define a “private club”.

It put aside the fact that Merlands Club, Inc. would be indistinguishable from all the other country clubs in the neighborhood by saying that country clubs had a statutory difference — a golf course is one of the requisites for a country club under the Montgomery County statute —while Merlands Club, Inc. would not have a golf course. It suggests that swimming pools, tennis courts, minature golf courses, locker accommodations, putting greens, snack bars and parking accommodations, as well as other proposed facilities, are available in the metropolitan area on a commercial basis, as well as on a non-profit basis, in the public parks. Although it did not find that this alone would prevent the applicant from being a private club, it concludes: “In any event, and irrespective of whether or not applicant constitutes a ‘private club’ within the meaning of the zoning regulation, the Board cannot make the findings necessary to grant this application.” ²⁸⁷ We think that the Board misconstrued the law which controlled its functions and duties in passing on the application, that its conclusion was unsupported by any substantial evidence, and that the permit should have been granted. This holding amounts to saying, in other-words, that Section 13 g of Chapter 176 of the Montgomery County Code of 1950 is a valid and proper delegation of power to the Zoning Board.

This is so because there is no other provision of the Montgomery County zoning ordinance which would justify the establishment and maintenance of a private club in a residential area, and therefore, if the special exception provision, with which we are now dealing, was invalid, the action of the Board would have been right, although its reasons for acting, wrong. The application was filed below on the assumption that Section 13 g was effective, and both sides below, as well as in this Court, proceeded on that assumption, which perhaps was an optimistic one in the light of holdings of this Court. It has never been held since Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487 , 165 A. 703 , that the provisions for exceptions in the Baltimore City zoning ordinance are valid although several times we have assumed the validity of those provisions and held that the facts did not warrant the exception. Hoffman v. Mayor and C. C. of Baltimore, 197 Md. 294 , 79 A. 2d 367 ; and Cassel v. Mayor and C. C. of Baltimore, 195 Md. 348 , 73 A. 2d 486 .

What Section 13 g does is to delegate to the Zoning Board a limited authority to permit enumerated uses which the legislative body finds in effect prima facie properly residential, absent any fact or circumstance in a particular case which would change this presumptive finding. The duties given the Board are to judge whether the