Redden v. Montgomery County

Hammond, C. J., delivered the opinion of the Court. The appellants, Isabelle Redden and some sixty-five other residents of the Cabin John area of Montgomery County, appeared before the County Board of Appeals in case No. 2945 to protest the granting of a special exception requested by the National Council of Senior Citizens, Inc., and the Cabin John Associates to permit the construction and operation of an eleemosynary philanthropic institution to house the elderly or handicapped on a twelve-acre tract (made up of parts of tracts called “Bite the Biter,” “Reid’s Delight” and “Halifax”) on the south side of MacArthur Boulevard near 78th Street. By a vote of three to two, the Board granted the special exception and the protestants filed a timely appeal in the Circuit Court for Montgomery County in which the caption listed the Board as the only appellee. The National Council of Senior Citizens, Inc. intervened and moved to dismiss the appeal on the grounds that the Board was not a proper appellee and consequently there was a total lack of a necessary party, relying principally on this Court’s decision in Adler v. Mayor <6 City Council, 242 Md. 329 .

By order filed December 3, 1971 Judge Walter H. Moorman granted the motion to dismiss on the strength of Adler, Bd. of Zoning Appeals v. McKinney, 174 Md. 551 , and Md. Rule 323 a (8) (“Motion ⁵⁶⁹ Raising Preliminary Objection” for lack of necessary parties). The Adler case was decided on the premise that the Rules made an administrative appeal a traditional adversary proceeding. Following the Adler decision, the applicable Rules were amended to change the adversary concept to an identification concept. As amended, Rule B2 a reads: “An appeal hereunder [from an ‘administrative agency’] shall be taken by filing with the clerk of the proper court an order for appeal.

Such an order shall be sufficient if the case is titled and captioned therein in the same manner as before the administrative agency from whose order the appeal is taken.” Rule B2 c requires that prior to filing an order for appeal the appellant shall serve a copy on the