Stacy v. Montgomery County

¹⁹¹ Marbury, J., delivered the opinion of the Court. This is an appeal from an order dated August 11, 1964, of the Circuit Court for Montgomery County affirming the action of the County Board of Appeals for Montgomery County (the Board) dated January 10, 1964, granting a variance of four feet from the restrictions imposed by Section 104-29 (i) (1) d 1 of the Montgomery County Zoning Ordinance 2 to Ernest L. Kendall, the applicant before the Board. Applicant, Kendall, contracted to purchase the property and improvements thereon at 2101 Seminary Road in Silver Spring, in July 1963, and became the owner thereof in August. The property is in a R-60 zone which permits single family residential homes, and has in the past been used for this purpose.

He purchased the property with the intention of conducting a child care home; which is permitted in a R-60 zone classification if granted a special exception by the Board. Shortly after he contracted to purchase the property, he applied to the Board for this special exception. It was granted, and appellants, adjacent property owners, appealed the ruling to the Circuit Court. While this appeal was pending Kendall discovered that he needed a variance since his building was less than the required 25 feet from the Stacys’ side yard property lines as required in the Zoning Code, Section 104-29 (i) (1) d.

Accordingly, he filed another application with the Board requesting a variance from the 25 foot setback restriction. In the meantime, the Circuit Court reversed the action of the Board in granting the special exception since the building failed to meet the requirements of the zoning ordinance as to distance. Then, Kendall’s application for a variance was granted after a hearing by the Board, which found that by reason of the extraordinary shape of the specific parcel of land on ¹⁹² which the building to be used as a child care home was located, the strict application of the zoning regulations would result in exceptional hardship to the owner of the property. Evidence at the hearing indicated that the distance from the corner of the fifty year old residence to the appellants’ property line was 24.42 feet.

A porch, which Kendall offered to remove if required by the Board, was 21 feet from the Stacys’ side lot line. On March 12, 1964, the Circuit Court passed an order permitting Montgomery County, one of the appellees here, to intervene as a defendant. The Board’s ruling granting the variance was also appealed by the Stacys to the Circuit Court, which affirmed the Board’s action by its order of August 11. They then appealed to this Court.

The appellants first argue that where one purchases realty with the intention to apply for a variance from restrictions imposed by a zoning ordinance, he may not contend that such restrictions caused him peculiar hardships that entitle him to the special privileges he seeks. From a careful examination of the record, we find that this is not the case here before us. Kendall purchased the property in question with the knowledge that a request for a special exception would be necessary for the operation of a child care home, a use which is permitted for this R-60 zoned property by the zoning laws of Montgomery County. The testimony shows that the need for a variance to accompany the original request was not determined until after the special exception had been granted.

A re-survey was made of the property at the request of the applicant when there seemed to be some doubt as to the exact footage as shown on the plat previously submitted to the Board, which indicated the distance as 25 feet. The Board in its opinion found that the re-survey plat of the applicant’s property showed “a surveyor’s nightmare.” It went on to say: “The front lot line runs three different courses for a total distance of 159.19 feet. The rear line is 112.96 feet. While the east side line is straight, the west line runs four different courses and cuts into the property a distance of 25.88 feet at one point.

This unusual situation places the corner of the appellant’s [applicant’s] ¹⁹³ house 24.42 feet from the side lot line and brings an overhanging porch 21 feet from the line. The result is a technical violation of the 25-foot setback requirements for Child Care Homes in residential zones, j}: j}c » There is a marked distinction between “variance” and “special exception” in Montgomery County. A special exception within the meaning of the zoning