Tauber v. County Board of Appeals

Barnes, J., delivered the opinion of the Court. The County Board of Appeals for Montgomery County (the Board), one of the appellees, on May 7, 1968, denied the applications of Laszlo N. Tauber, et al., appellants (applicants or property owners), for a Special Exception and for a Variance for off-street parking on a 2.4145 acre unimproved tract, owned by the applicants. The tract (subject property) is located on Westbard Avenue, generally between River Road and Massachusetts Avenue near Bethesda, Montgomery County, and is in proximity to the Westwood development. This subject property is in an R-60 (single family detached houses and certain institutional and other uses) zone.

The principal question before us is whether or not this action by the Board was arbitrary, unreasonable and capricious. The subject property is the northwesterly half of the ²⁰⁴ tract which was involved in the case of Tauber v. Montgomery County Council, 244 Md. 332 , 223 A. 2d 615 , decided by us on November 10, 1966. In the earlier Tauber case, we affirmed the order of the Circuit Court for Montgomery County denying the petition of the appellants (in that case) to declare null and void ás arbitrary, unreasonable and capricious a resolution of the Montgomery County Council, sitting as a District Council, denying the requested change of zone from R-R to R-H .(a “floating” high-rise apartment zone). In the resolution of the District Council on October 13, 1964, denying the change to R-H zoning in the earlier Tauber case, the following appeared: “* * * Moreover, the Council believes that the Board’s comments concerning traffic problems in this vicinity are well taken.

Although evidence was introduced tending to show that R-H development would have a relatively insignificant impact on traffic, it must be conceded that existing traffic on Massachusetts Avenue, a primary artery to the District of Columbia, and Westbard Avenue is extremely heavy, and that severe congestion is being experienced during rush hours. In these circumstances, the Council preceives no basis whatsoever for any reclassification which would increase the density of development at this intersection to the extent proposed herein.” The subject property in the present case has a 286 foot frontage on Westbard Avenue on the west and approximately a 524 foot boundary on the right of way of the Baltimore and Ohio Railroad to the east. To the north, •the subject property borders on Crown Street (a proposed and partially dedicated but unimproved street) for approximately 296 feet, and to the south the property borders on other land owned by the applicants. Directly across Westbard Avenue from the subject property is a nonvehicular entrance to Western Suburban ²⁰⁵ Junior High School.

Also on Westbard Avenue across from the subject property and south of the junior high school is the Little Falls Library. Included in this school complex and to the west of the library is the Little Flower Church and Parochial School. These facilities have no vehicular access to Westbard Avenue. East of the tracks of the Baltimore and Ohio Railroad Company is a park maintained by the Maryland-National Capital Park and Planning Commission.

North of Crown Street is an automobile parking area for the Westwood Building, occupied by the National Institutes of Health (NIH) as well as unimproved property in the 1-2 (Heavy Industrial) zone. Across Westbard Avenue from the Westwood Building are the Westwood Shopping Center, the Westwood Apartments and certain off-street parking lots. Across Massachusetts Avenue, on the southeast and southwest corners of the intersection of Massachusetts Avenue and Westbard Avenue (Fort Sumner Drive at that location) are an Episcopal Church and a Lutheran Church, respectively, with their automobile parking lots. No single family dwellings abut the subject property.

There are single family dwellings behind the Episcopal and Lutheran Churches to the south and across the railroad tracks, Little Falls Parkway and the park to the east. The closest single family dwellings to the subject property are apparently those on Brookview Drive, between 500 to 600 feet of the subject property. Two of those who protested the granting of the applications live at 5112 and 5114 Brookview Drive, respectively. They testified that they could see the subject property from their dwellings, and that they believed the granting of the applications would adversely affect the value of their properties.

In addition to various protesting improvement associations, there were protestants whose properties were located at 5003, 5005, and 5010 Fort Sumner Road, 5809 Devonshire Drive and 5401 Massachusetts Avenue. There is no challenge in the present case to the standing of the protestants to oppose the granting of the applications. ²⁰⁶ The applicants proposed to use the subject property, if their applications had been granted, in conjunction with the parking of those who use the Westwood Building, occupied by NIH. If the requested variance for parking (dealing with set-back requirements from the railroad tracks) had been granted together with the granting of the applications for the special exception, the proposed parking lot would contain 279 parking spaces; if the requested variance was not granted but the requested special exception was granted, the parking lot would contain from 254 to 261 parking spaces. As already indicated, the Board declined to grant the applications.

The Board’s action was affirmed on appeal to the Circuit Court for Montgomery County. Judge Shure in his written opinion found that the action of the Board was not arbitrary, unreasonable or capricious, and was based upon sufficient evidence to make the issues before it fairly debatable. He passed an order on June 16, 1969, affirming the Board from which order the applicants perfected a timely appeal to this Court. We agree with the decision of the lower court and shall affirm the order of June 16, 1969.

We will state additional facts when we later consider the principal question raised before us. The relevant provisions of the Montgomery County Code (1965), as amended, in regard to zoning, relevant to the present case at the time of the hearings, were as follows: Sec. 111-37. Uses which may be permitted; standards and requirements for specific uses. “Uses for which special exceptions may be granted and specific standards relative there to:” “Off-street parking of motor vehicles in connection with commercial or industrial uses. In any R-A, R-R, R-90, R-60, R-40, R-30, R-20, R-10 or C-0 Zone, on land not reserved for street ²⁰⁷ or highway purposes, the off-street parking of motor vehicles in connection with commercial or industrial uses upon a finding by the Board that said use will not constitute a nuisance because of traffic, noise or physical activity, provided that the applicable provisions of Section 111-27, particularly subsection D, and the following requirements are complied with: “1.

No charge shall be made for use of such parking facility for the first hour. “2. No service of any kind shall be extended to persons occupying vehicles in such parking space * * *.” (Sec. 111-27 (d) provides for screening, etc. for off-street parking areas.) Sec. 111-35. “a. A special exception may be granted when the Board, or the Director, as the case may be, finds from a preponderance of the evidence produced at the hearing that: “(1) The proposed use does not affect adversely the General Plan for the physical development of the District, as embodied in this Ordinance and in any Master Plan or portion thereof adopted by the Commission; and “(2) The proposed use will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use or development of adjacent properties or the general neighborhood; “(3) The standards set forth for each particular use for which a special exception may be granted have been met. “b. The applicant for a special exception shall have the burden of proof, which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the board or the director.” ²⁰⁸ In construing substantially the same provisions of the Montgomery County Code set forth in the ordinance effective January 1, 1954, in Robertson v. County Board of Appeals for Montgomery County, 210 Md. 190, 198 , 122 A. 2d 751, 755 , Judge (now Chief Judge) Hammond for the Court stated: “The ordinance requires an applicant, by a preponderance of the evidence produced at the hearing, to persuade the Board of the specific presence of each of the three prerequisites it imposes.” This Court held in the Robertson case that a finding by the Board that there would be no adverse effect upon either the general plan of the District, the use or development of the neighboring properties, or upon the health and safety of the residents or workers in the neighborhood, did not include or necessarily require a finding that no nuisance in the legal sense would be created from the operations of the off-street parking facilities.

In the instant case, the applicants do not dispute that the applicable law places the burden upon them to establish the statutory requirements by a preponderance of the evidence. They earnestly urge upon us that the evidence offered at the hearing clearly meets the burden imposed upon them and that there was no legally sufficient evidence to support or justify a denial of the Special Exception and Variance applied for. Thus, it is