Town of Somerset v. Montgomery County Board of Appeals

Oppenheimer, J., delivered the opinion of the Court. This zoning appeal presents intertwined questions of due process of law in the procedure of the administrative agency, the construction of the zoning ordinance, the legal effectiveness of the appeal from the administrative order, and the proper limits of the lower court’s discretionary action. The appellee, M. K. Fry and her husband, since deceased, (the Frys), petitioned the Montgomery County Board of Appeals (the Board) for a special exception under the Montgomery County Zoning Ordinance, to construct and operate an apartment hotel in an R-10 zone (Multiple-Family, High-Density Residential) on their property at the southwest corner of the intersection of Wisconsin Avenue and Bradley Boulevard in Chevy Chase, Maryland. The lot area of the property covers about 79,000 square feet, of which 15,000 square feet or 18% of the lot would be occupied by the building.

The proposed apartment hotel would have 11 stories and a penthouse, and would rise 100 feet above grade. There would be 169 units, of which 115 would be apartments, 22 hotel rooms, and 32 hotel suites. The building would include a barber shop, beauty parlor, coffee shop and pharmacy. The property involved lies at the northern end of the residential section of Wisconsin Avenue.

The Zoning Plan for the Bethesda Business District and vicinity, adopted in 1956, established Bradley Boulevard as a boundary line between the com ⁵⁶ mercial uses of the Bethesda Business District to the north and the residential area to the south. Resolutions in opposition to the granting of the exception were filed, inter alia, by the Town of Somerset and the Village of Chevy Chase, two of the appellants. The Board’s opinion states that a hearing on the petition was first scheduled for April 15, 1965, at 3:30 P.M. but was postponed to 10:00 A.M. on May 20, “to allow a full day for this hearing since the opposition was represented by two attorneys.” At the hearing on May 20, Mr. Shearin, one of the attorneys for the opposition, stated he represented the Town of Somerset, two citizens’ associations and a number of individuals, whose given addresses showed that they lived in the general vicinity of the property involved. Prior to the taking of testimony, a motion was made on behalf of the protestants to dismiss the application on the ground that, even if a special exception were permitted, the plans showed the proposed apartment hotel building would be a clear violation of the area, frontage and setback requirements of the Montgomery County Zoning Ordinance.

The motion was denied. At the conclusion of the testimony of the first expert witness offered by the Frys, Mr. Shearin, on behalf of the protestants, asked leave to cross-examine. The Chairman of the Board stated that cross-examination was not allowed. He admitted that cross-examination had been permitted “in the last few years,” but “from this time forward” cross-examination of witnesses was not to be permitted.

The Chairman said: “We got into this about a month ago. We have taken the motion since our present rules of procedure do not specifically say, rather they are silent in this matter, we are conducting public hearings in the true sense of a public hearing rather than adversary trial, is what it had gotten into. You can call any witness you want. The petitioner in other contested cases such as this has made his witnesses available to be questioned by the opposition after he finishes his case.

We feel if the petitioner [sic] hears the whole case, it eliminates a whole lot of questions. On that basis, right or wrong, ⁵⁷ this is the way we have been proceeding for about the last month. We see nothing that requires an adversary trial.” Both Mr. Shearin and Mr. Sheehan, the other attorney for the protestants, stated they were taken completely by surprise, and had received no notice from the Board, through the press or otherwise, of the change in its procedure. An objection was taken to the Board’s ruling, and the objection was duly renewed after cross-examination of each of the Frys’ succeeding witnesses had been refused.

After the Frys had concluded their case, the appellants recalled several of the Frys’ experts as hostile witnesses. The Board recessed at 3:30 P.M. On resumption of the hearing ten minutes later, before the appellants had concluded putting on the applicants’ witnesses as their own (the procedure permitted by the Board instead of cross-examination), the Chairman of the Board announced that the taking of testimony would be concluded at 4:20 P.M. Both counsel for the appellants vigorously protested. They stated they had never been given to understand that any such time limitation would be imposed. The Vice-chairman of the Board, Mrs. Elaine Lady, dissented from the ruling.

In her later dissenting opinion, she said, on this issue: “1. The chairman’s statement on April 15, 1965 that the hearing would be continued to May 20, 1965, to allow a full day, was not definitive, or preclusive of another continuance if all the witnesses had not been heard. “2. The time limitation which was imposed late in the day, was not announced at the beginning of the hearing on May 20, 1965. The equal-time concept was stated after the proponents had presented their case and the counsel for the opponents had questioned a number of witnesses but not all they proposed to call. “The Board ruled that the opposition must conclude their case within 50 minutes.

Not having been forewarned at the beginning of the hearing, the opposition ⁵⁸ had no opportunity to give priority of importance to witnesses, or to allocate the length of time for questioning individual witnesses for the purpose of presenting their case most effectively within the time allowed.” Mr. Shearin stated that he had four witnesses he wished to call, including Mrs. Slater, one of the appellants. Mr. Sheehan stated he wished to call as an expert witness an adjoining property owner, a builder, who had been waiting all day. Mr. Shearin, on behalf of the appellants, proffered “to show by the several witnesses who have not been allowed to testify that this proposed use would constitute a substantial and serious hazard to the safety of residents and workers in the area and particularly the children who live in the vicinity of the site in question here today. The mothers of some of those children are here prepared and ready to testify.

We protest most vigorously this limitation which has been imposed upon us in the middle of the afternoon which prevents their testifying.” A motion made by both counsel for the appellants to continue the case to a later date for the presentation of pertinent and relevant additional evidence was denied. On June 2, 1965, the Board, by a vote of 4 to 1, adopted a resolution granting the special exception for which the Frys had applied. The opinion of the majority affirmed the rulings previously made as to the construction of the zoning ordinance, the denial of the right of the protestants to cross-examine the applicants’ witnesses, and the notification to the protestants that they had to conclude their testimony in the afternoon of the day on which the hearing began. On July 2, 1965, The Town of Somerset, The Village of Chevy Chase, Mr. and Mrs. Picken and Mrs. Slater filed an order for appeal from the Board’s decision to the Circuit Court for Montgomery County.

The order stated it was filed pursuant to Rules B1, et seq. of the Maryland Rules of Procedure. On July 12, the appellants filed a petition of appeal in the Circuit Court, in support of the order for appeal previously filed. Among the grounds stated in the petition for the reversal of the Board’s order were its rulings on the interpretation of the zoning ordinance, its denial of the right to cross-examination, the time lim ⁵⁹ itation imposed by the Board and its refusal to grant a continuance. The Board’s procedure, it was claimed, violated the appellants’ constitutional rights.

The petition also alleged that the applicants had failed to meet the burden of showing that the requirements for the granting of a special exception had been met. Mrs. Fry demurred to the petition, under Maryland Rule B9, on the grounds, inter alia, that the petition failed to allege any of the appellants were aggrieved parties, or had sustained any damages; that the appellants were too far removed from the property involved to constitute them aggrieved parties; and that the Town of Somerset and the Village of Chevy Chase had no standing to appeal since no allegation of ownership of land was made in the petition and that, if they did own property, it was too far removed. The Board filed a similar demurrer. On November 1, before decision on the demurrer, the appellants, while maintaining that the demurrer should be overruled, moved for leave to amend their petition of appeal.

The motion stated that if leave were granted, the appellants would allege, inter alia, that each of them was. a party to the Board proceedings; that each is aggrieved by the Board’s decision; that the Pickens own and reside on property within approximately one block of the proposed apartment hotel; that Alice Slater is a resident and owner of property within three short blocks; that the Towm of Somerset is located in the vicinity of the property involved and is the owner of property several blocks from and within sight of the building proposed to be erected thereon; that the Village of Chevy Chase is located across the street (Wisconsin Avenue) and is the owner of property to the southeast which is within sight of the proposed building; and that the property of each of the appellants will be specially damaged if the apartment hotel should be erected. On November 22, Judge Shook filed an opinion and order. She held that the petition did not show that the petitioners were aggrieved by the decision of the Board and that therefore the demurrer must be sustained. On the motion for leave to amend, the judge considered the questions of law raised by the petition and concluded they were all without merit.

She then decided, as a matter of law, that none of the appellants was an ⁶⁰ aggrieved party because the record of the proceedings before the Board did not contain evidence to support their contentions. For these reasons, Judge Shook sustained the demurrer to the petition without leave to amend. In view of the reasons upon which the order was based, the appeal to this Court involves not only the determination of the correctness of the trial judge’s ruling on the pleadings and whether her discretion was abused in refusing leave to amend, but also the correctness of at least some of her legal conclusions as to the validity of the Board’s procedure and the underlying substantive issues. The Rulings on the Pleadings The petition of appeal did not in terms allege that the appellants were persons aggrieved by the Board’s order.

It did, however, state that the appeal was filed pursuant to Maryland Rules B1 through B12. The order for appeal, in support of which the petition was filed, contained the same statement. The pertinent Rules, therefore, were incorporated by reference in both the order and the petition. Rule B3 states that an appeal may be taken “by a person now or hereafter authorized by statute to appeal.” The applicable statute authorizes appeals by a “person aggrieved by the decision.” Montgomery County Code, Section 2-88 (1960) (now Section 2-92, 1965 recodification) .

See Pattison v. Corby, 226 Md. 97, 100 , 172 A. 2d 490 (1961). It is a reasonable implication of the order and the petition that the appeal is taken by aggrieved persons, for only such persons are authorized to take an appeal under the Rules pursuant to which the appellants state they are acting. The order for appeal was filed within the time set forth in the Rules. In that respect, the legal situation differs from that presented in Warmack v. Bradley Club, Inc., 242 Md. 394 , 219 A. 2d 12 (1966) and Badian v. Hickey, 228 Md. 334, 179 A. 2d 873 (1962).

Unlike the case of Salisbury Bd. v. Bounds, 240 Md. 547 , 214 A. 2d 810 (1965), in which it was held that the appeal should have been dismissed because the errors committed by the agency were not set forth in the order for appeal within the time required by Maryland Rule B2 e, the petition of appeal in the case before us was filed within the time ⁶¹ limit prescribed by the Rule and sets forth in detail the errors claimed to have been committed by the Board. Both the Board and the Frys were given due notice of the filing of the order and petition. The appellees knew from the proceedings before the Board that the parties to the appeal included some of the protestants, who, through their counsel, had given the location of the properties which they owned and had protested, as adverse to their interests, the granting of the application for the special exception and had objected to the Board’s rulings and procedure. Where there is compliance with the substance of the requirements of statutes or rules and the other parties have not been prejudiced, technical irregularities cannot be made the basis for depriving persons of the opportunity to assert their legal rights.

Board of County Comm’rs v. Kines, 239 Md. 119, 125 , 210 A. 2d 367 (1965) ; Irvine v. Montgomery County, 239 Md. 113, 117 , 210 A. 2d 359 (1965). Because of the factors to which we have referred, we think that the appellants’ failure to allege expressly in the petition of appeal that they were aggrieved parties whose property interests are or will be adversely affected by the Board’s order was, at most, such a technical irregularity. The demurrer should have been overruled. We find, further, that the trial judge erred in denying the appellants’ motion for leave to amend.

Maryland Rule 320 d 1(b) provides that “an amendment shall not be made without leave of court but leave to amend shall be freely granted in order to promote justice.” We have repeatedly held that an order denying or allowing amendment will not be reviewed in the absence of a clear showing of an abuse of discretion. Blevins v. Mullan Contracting Co., 235 Md. 188, 194 , 201 A. 2d 348 (1964); Carder v. Steiner, 225 Md. 271, 277 , 170 A. 2d 220 (1961), and cases therein cited. We re-affirm that rule, but, in this case, we are constrained to hold that in denying leave to amend the court below went beyond the proper limits of discretionary action. Ordinarily, our holding that the demurrer to the petition of appeal should have been overruled would make moot the question of the judge’s refusal to permit the requested amendment.

However, the appellants’ request to amend the petition by mak ⁶² ing the allegations set forth was proper and perhaps necessary. The requested amendments were specific allegations as to the aggrievement of each of the appellants. The allegation in the petition which, as we have held, implied that they were aggrieved parties, without the supporting details of the requested amendments, of itself might not have been sufficient for them to show why they had standing to appeal. Had the motion been granted, the issue as to standing would have been clarified by the raising of pertinent questions of fact and law and the administration of justice would thereby have been served.

In determining whether an abuse of discretion has been shown, the reasons why the court decided as it did may be apposite, whether those reasons were stated or implied. Blevins, supra, and cases therein cited. In this case, Judge Shook carefully set forth the reasons for her decision. In large part, she rested her denial of the motion upon her conclusions that the legal contentions of the appellants as to errors made by the Board were without merit. 1 We differ from the trial judge as to at least two of these conclusions, and hold, as to them, that the contentions of the appellants are correct.

For the reasons which will be given hereafter, we have decided that the denial by the Board of the appellants’ request to cross-examine the applicants’ witnesses was a violation of their rights, and that the proposed use of the property involved violated the building coverage and density requirements of the zoning ordinance, as we construe it. The judge’s determination that the amendment should be denied, therefore, was based on conclusions of law which we find erroneous. Beyond this, the judge erred in holding, on the circumstances of this case, that the appellants should not be allowed to allege that they are persons aggrieved by the Board’s, decision, because, in her opinion, the record of the proceedings before the Board contains no evidence to show aggrievement. At the be ⁶³ ginning of the proceedings before the Board on May 20, one of the attorneys for the protestants stated that, among others, he represented two of the appellants, whose addresses he gave.

It is conceded that these appellants lived respectively about one block and three blocks from the property involved. Moreover, one of the reasons given by the appellants in their petition of appeal as to why the Board’s action should be declared null and void was that, during the hearing, without prior warning or precedent, the Board imposed upon appellants an arbitrary time limitation of 50 minutes for the completion of their case and arbitrarily and capriciously overruled their motion for continuance of the hearing to a later date. Counsel for the appellants protested the time limitation and asked the Board for a continuance so that interested property owners in the immediate vicinity of the property, including one of the appellants, could show how they would be adversely affected by the granting of the special exception. We do not reach the question of whether this aspect of the Board’s procedure violated due process, but in any case we believe it was essential, for the promotion of justice, that the appellants should have been accorded the opportunity to offer testimony to the court to> show they were aggrieved persons, when that opportunity, whether through improper procedure or misunderstanding, had been denied them by the Board.

When the issue of the standing of an appellant to appeal is raised in the court in which review of the administrative action is asked, we have approved the practice of trial judges in permitting testimony on the point to be taken before them, see e.g., Chatham Corp. v. Beltram, 243 Md. 138, 148, 220 A. 2d 589 (1966) and Wilkinson v. Atkinson, 242 Md. 231 , 218 A. 2d 503 (1966). The question is not one of taking additional testimony on the merits of the substantive issues decided by the Board [compare Suburban Properties, Inc. v. Rockville Council, 241 Md. 1, 5-6 , 215 A. 2d 200 (1965) and cases therein cited], but of determining whether the appellants have the requisite standing to have those issues reviewed. When, as in this case, there is a serious question as to whether the appellants were wrongfully deprived by the Board of the right to offer testimony as to their specific interests and how those ⁶⁴ interests would be adversely affected by the granting of the petition, there is all the more reason for the trial court to permit the filing of allegations and the taking of testimony thereunder to show the appellants’ standing to appeal. In no other way, in our opinion, on the facts, could justice be served.

In Brucker v. Benson, 209 Md. 247, 254-56 , 121 A. 2d 230 (1956), the plaintiff in a divorce case, after the taking of testimony but before entry of a final decree, sought leave to amend her petition to present claims based on alleged ownership of personal property. Leave was denied. The Court remanded the case on the ground that, while ordinarily the grant or denial of leave to amend is within the discretion of the trial court, the Chancellor had abused his discretion in denying the permission asked. Chief Judge Bruñe, for the Court, said: “We think, as we have said, that the appellant is entitled to present her claims * * * We are, therefore, of the view that leave to amend ought to have been granted and that the chancellor went beyond the proper limits of discretionary action in denying it.” 209 Md. at 256 .

In the present case, we are of the opinion that the reasons for holding the trial judge went beyond the proper limits of discretionary action in denying leave to amend are even stronger than they were in Brucker . The judgment of the trial court, therefore, must be reversed and the case remanded for further proceedings. While it is apparent that one of the appellants lives in a residential neighborhood only approximately one block from the proposed apartment hotel, and another about