Wier v. Witney Land Co.

Barnes, J., delivered the opinion of the Court. In this zoning appeal, the appellants, John B. Wier, Jr., et al., who were protestants below, challenge the propriety of the granting by the County Board of Appeals of Baltimore County (the Board) of the reclassification of Phases I and II consisting of approximately 87.7 acres of land (net) and 43 acres of land, respectively, owned by the Witney Land Company, a Maryland Corporation, owned by Robert E. Meyerhof? and his brother, Harry Meyerhof? (petitioners, Witney or owner) from the existing R-20 (Residence, one-family, lot 20,000 square feet), R-10 (Residence, one-family, lot average of 10,000 square feet) and R-6 (Residence, one and two family, lot area 6,000 square feet) zones to the R-A (Residence, Apart ⁶⁰³ ments) zone and the granting of a Special Exception for two 8 story elevator apartment buildings for 96 units each. The appellee and cross-appellant, Witney, who was the petitioner for reclassification of 299.1920 acres of its 325 acre tract in the Eighth Election District of Baltimore County consisting of Phases I, II, III and IV (Phase III consisting of 80 acres, 78.9 acres net, and Phase IV consisting of 82 acres, 77.3 acres net), challenges the correctness of the action of the Board in denying the requested reclassification of Phases III and IV, from the existing R-40, R-20 and R-10 zones to the R-A, B-L (Business, Local) and B-R (Business, Roadside) zones as set forth in the application.

The action of the Board by its order of July 2, 1968, was affirmed by the Circuit Court for Baltimore County (Jenifer, J.) by its order of June 10, 1969, and a timely appeal and cross-appeal were perfected from that order of the lower court. Three questions are presented to us for our decision, i.e., whether or not the lower court erred (1) in refusing to dismiss the appeal of the protestants to it on the ground that they were not “persons aggrieved” with sufficient status to maintain the appeal; (2) in declining to hold that the Board acted arbitrarily and capriciously in approving the reclassification for Phases I and II; and (by the cross-appellants) (3) in declining to hold that the Board acted arbitrarily and capriciously in not granting the reclassification for Phases III and IV. This case was thoroughly and carefully tried before the Board. There were seven full days of testimony with a transcript of over 1,050 pages with some 46 documentary exhibits — 26 filed by the petitioners and 20 by the protestants.

The expert testimony produced by both sides was given by well qualified and well known experts. The opinion of the Board, filed on July 2, 1968, consists of some nine printed pages in the Record Extract and is a carefully considered opinion. The opinion of the lower court is also carefully considered, well written and has been most helpful to this Court. It consists of 16 printed pages in the Record Extract.

Indeed, the analysis of the ⁶⁰⁴ substantial record in the case by the lower court in its opinion is so accurately and completely done, that we shall adopt the statement of the facts as given in the lower court’s opinion as our statement of the facts in this opinion for the Court. Judge Jenifer stated the facts as follows: “The Petitioner in this case is Witney Land Company, the legal owner of a tract of land containing 325 acres situate in the Eighth Election District of Baltimore County, a portion of which was acquired in November of 1957 and the remaining portion of which was acquired in January of 1959. The corporation is owned by Robert E. Meyerhoif and his brother, Harry Meyerhoff, both of whom have been successful land developers of both dwellings and apartments since 1946. The zoning petition filed in the office of the Zoning Commissioner of Baltimore County on April 4, 1967, seeks a reclassification of 299.192 acres of the entire tract from R-6, R-10, R-20 and R-40 zones to R-A (Apartments), B-L (Business, Local) and B-R (Business, Roadside) zones.

The petition also requests a special exception for two elevator apartment buildings on 10.0163 acres of the apartment use land. The existing zoning classifications are shown on the Eighth District Land Use Map adopted December 20, 1955. The specific reclassifications sought are as follows: “R-6 to R-A Parcel A 26.9503 acres R-10 to R-A Parcel B 169.7915 acres R-10 to B-L Parcel C 15.8883 acres R-10 to B-R Parcel D 13.8113 acres R-20 to R-A Parcels E,F,G 41.4900 acres R-40 to R-A Parcel H 31.2606 acres Total acreage 299.1920 acres “The Zoning Commissioner of Baltimore County, by an Order dated May 16, 1967, denied ⁶⁰⁵ the petition in its entirety. Although recognizing many changes in zoning, road patterns and available public utilities in the immediate area since the adoption of the Eighth District Map on December 20, 1955, it was his opinion that: ‘Without an up-to-date comprehensive map and apartment zoning criteria, the petitioner’s request is premature and could be detrimental to the public interest.’ “The subject tract is generally located south of Bosley Road, east of Warren Road and west of Pot Spring Road.

There is a mixture of zoning and land uses surrounding the property. On the north side, there is R-20 and R-40 zoning facing the south side of Bosley Road; and on the north side of said road, there is R-40, R-20 and R-10 zoning on a sizeable tract of land now under development by other interests. The majority of the western and southwestern boundary is zoned R-A and is presently being developed for apartment use known as Briarcliff Apartments. Another portion of the southwestern boundary abuts an electric transmission line of the Baltimore Gas and Electric Company and land owned by Baltimore County, Maryland, developed as the Longview Golf Course.

This public use along with a small undeveloped tract of R-A land and the Dulaney Senior High School abut the subject tract on the south. The entire eastern boundary is land owned by Villa Maria Inc., a Catholic corporation, and although zoned R-40, is devoted to institutional use by the Stella Maris Hospice and the St. Vincent Home. “A large portion of the land sought to be rezoned was developed by the petitioner as an eighteen hole golf course in 1963 known as Dulaney Springs Golf Club and is presently being utilized for this purpose. This was done so as to enable the petitioner to acquire some reve ⁶⁰⁶ nue from the property and to hold the land until it was ready for development. The tract used as a golf course is situate north and northeast of Cranbrook Road and west and northwest of Padonia Road.

That portion of the Petitioner’s property located south of Cranbrook Road and east of Padonia Road is vacant, unimproved land. “The petitioner proposes to develop the 299 acres in four stages in the event the reclassification of the property as an entirety were granted. Phase I (1) would comprise 90 acres (82.7 acres net) and would be developed into 1532 apartment units, 1340 of which on 72.7 net acres would be of the garden type and the remaining 192 of which on approximately 10 acres would be contained in two, eight story elevator type apartment buildings of 96 units each. It is estimated that Phase 1 would require approximately seven years for completion depending upon the market demand for apartment accommodations. The portion of the land embraced in Phase 1 is bounded by Cranbrook Road, R-A zoning (Briarcliff Apartments) and the County owned Longview Golf Course on two sides, a small undeveloped R-A tract owned by Stefanowicz and the Dulaney Senior High School on the south side and the Villa Maria property on the east side. “Phase II (2) consists of 47 acres (43.4 acres net) on which there is proposed to be constructed 524 garden apartment units and an estimated additional period of three years would be consumed in this phase.

This area is bounded by Ridgland Road, the northerly side of Cranbrook Road, the westerly side of the Baltimore Gas and Electric Company transmission line and a line of division through the remaining land of the Petitioner. This part of the project ⁶⁰⁷ would necessitate the relocation of two holes of Dulaney Springs Golf Course on other land of the Petitioner. “Phase III (B) of the project would comprise 80 acres (78.9 acres net) of land on which it is proposed to build 1,300 additional apartment units, some being garden type and some being in elevator apartment buildings. The estimated period of construction would consume an additional five to six year span. “Phase IV (4) includes the remaining 82 acres (77.3 acres net) of the 299 acre parcel on which there is planned for construction 902 additional apartment units on approximately 52.4 acres, a neighborhood shopping center of 70,000 square feet on 15.8 acres of B-L land and a one hundred room inn and restaurant on 13.8 acres of B-R land. It is contemplated by the petitioner that this last phase would require an additional five years for completion. “The entire project as proposed by the applicant would contemplate the construction of a total of 4258 apartment units, shopping center and motor inn.

According to the Vice-President of the petitioning corporation, completion of the plan would require an estimated fifteen to twenty year period of time. “The hearing of this case before the Board consumed seven full days of testimony on December 19, 1967, January 9, 24, 25, 1968, and February 27, 28 and 29,1968. The transcript contains over 1050 pages and 46 exhibits were filed, 26 by the petitioner and 20 by the protestants. The petitioner produced the following witnesses: (1) Robert E. MeyerhofF, Vice-President of Witney Land Company, the legal owner of the subject property; (2) Robert A. Whiteford, a consulting civil and sanitary engineer; (3) Bernard Willemain, a planning and zoning consul ⁶⁰⁸ tant; (4) Albert B. Kaltenbaeh, Director of Public Works for Baltimore County; (5) Walter Worthington Ewell, a registered professional civil engineer specializing in the traffic study field; (6) Frederick P. Klaus, a realtor and appraiser. The protestants presented the following witnesses: (1) Mrs. Twilah E. Weir, a property owner residing at 702 Bosley Road, Cockeysville, Maryland, located 150 feet northwest and within sight distance of the subject property, and who also had made a survey of school pupil yield from individual homes and apartment units; (2) Reverend Charles Robert Neil-sen, Rector of Sherwood Episcopal Church, Sherwood and York Roads, Cockeysville, Maryland; (3) John Critcher, a property owner who resides at 114 Bosley Road, Cockeysville, Maryland, one-half to three-quarters of a mile from property involved, but within sight distance thereof, who testified individually and on behalf of the Glenmore Area Improvement Association; (4) Stanley C. Magersupp, a property owner who resides at 2315 Raven View Road in the Pot Spring community about one mile distant from the southern part of the Petitioner’s property, who testified on his own behalf and on behalf of the Greater Timonium Community Council; (5) William B. Guy, Jr., a real estate broker and appraiser; (6) Eugene J. Clifford, Traffic Engineer for Baltimore County; (7) Mrs. Virginia Brown, a property owner residing at 621 Sherwood Road, near Warren Road, Cockeysville, Maryland; (8) Eduardo Acevedo, a District Engineer for the State Department of Water Resources; (9) Fred W. Tuemmler, a Zoning and Planning Consultant and professional civil engineer; and (10) George E. Gavrelis, Director of Planning for Baltimore County. “The Board held the case under advisement ⁶⁰⁹ for a considerable period and filed its opinion and order under date of July 2, 1968.

By its decision, the Board granted the reclassification to R-A zoning for Phases 1 (90 acres) II (47 acres) as requested by the petitioner and the special exception for the two eight story apartment buildings containing 96 units each but denied the reclassification requested for Phases III (80 acres) and IV (82 acres). On July 24, 1968, an order for appeal was filed on behalf of thirty-six individual protestants and on August 1, 1968, a second order for appeal was filed on behalf of the protestants, Vestry of Sherwood Episcopal Church and Jerome J. Gebhart, who resides at 599 Cranbrook Road, Cockeysville, Maryland. On November 15, 1968, the petitioner, Witney Land Company, filed a motion to dismiss the appeals of the protestants alleging that they are not ‘parties aggrieved’ and therefore do not possess the status to maintain their appeals. The appeals of the protestants give rise to Miscellaneous Case No. 4021.

On July 31, 1968, the Applicant filed an order for appeal from the decision of the Board in denying the reclassification sought under Phases III and IV which gives rise to Miscellaneous Case No. 4026.” 1. In the opinion of the lower court, the protestants had suificient status to maintain their appeal to that court as “parties aggrieved.” We agree with the lower court’s conclusion in this regard. By Section 604 of the Baltimore County Charter, an appellant from a decision of the Board to the Circuit Court for Baltimore County must be an aggrieved party as required by the State Zoning Enabling Act, Code (1967 Repl. Vol.), Art. 66B, § 7 (j).

See also the Baltimore County Code (1968), Sections 22-28. We reviewed the prior decisions of this Court and enumerated the ap ⁶¹⁰ plicable principles to determine whether or not an appellant from a Board was an “aggrieved party” in Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137 , 230 A. 2d 289 (1967). We stated the general rule as follows: “Generally speaking, the decisions indicate that a person aggrieved by the decision of a board of zoning appeals is one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally.

DuBay v. Crane, 240 Md. 180, 185 , 213 A. 2d 487 (1965). The circumstances under which this occurs have been determined by the courts on a case by case basis, and the decision in each case rests upon the facts and circumstances of the particular case under review.” ( 247 Md. at 144 , 230 A. 2d at 294 ). After we reviewed the principles applicable to the degree of certainty and the proof of aggrievement in equity and mandamus cases, we discussed the principles applicable to appeals in zoning cases, in relevant part, as follows: “(a) It is sufficient if the facts constituting aggrievement appear in the petition for appeal either by express allegation or by necessary implication. Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A. 2d 294 (1966). “(b) An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.

The person challenging the fact of ag ⁶¹¹ grievement has the burden of denying such damage in his answer to the petition for appeal and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved.” ❖ ❖ * “ (c) A person whose property is far removed from the subject property ordinarily will not be considered a person aggrieved. Wilkinson v. Atkinson, 242 Md. 231 , 218 A. 2d 503 (1966) ; DuBay v. Crane, supra,; City of Greenbelt v. Jaeger, 237 Md. 456 , 206 A. 2d 694 (1965) ; Marcus v. Montgomery County Council, 235 Md. 535 , 201 A. 2d 777 (1964) ; Pattison v. Corby, 226 Md. 97 , 172 A. 2d 490 (1961). But he will be considered a person aggrieved if he meets the burden of alleging and proving by competent evidence — either before the board or in the court on appeal if his standing is challenged— the fact that his personal or property rights are specially and adversely affected by the board’s action.” * * * “4. If any appellant is a person aggrieved, the court will entertain the appeal even if other appellants are not persons aggrieved.

See e.g., Marcus v. Montgomery County Council, supra. “5. The status of a person to appeal as a ‘person aggrieved’ is to be distinguished from the result on the merits of the case itself. In determining status to appeal, the question is whether the property owner may reasonably be thought to be specially damaged if the application is approved. Testimony may be taken on the point by the trial court.

Town of Somerset v. Montgomery County Board of Appeals, supra. If, on the merits, the board acted properly in approving the application, the protesting property owner is not damaged in law, however much he may be damaged in fact. His damage is then dam ⁶¹² num absque injuria. Because the result on the merits might be adverse, however, does not mean that the protestant would not have status to challenge the board’s action.” ( 247 Md. at 144-146 , 230 A. 2d at 294-295 ).

In the Bryniarski case we held that three protestants had established their status, in fact, as “persons aggrieved” by the proposed development in that case. Their status had been established by testimony in regard to the adverse effect of additional traffic on their properties as contrasted with expected traffic to be generated from the operation of a medical office building; the adverse effect of the proposal upon the general plan for the physical development of the District; and, injury to one property resulting from the height of the proposed building. In their petition for appeal from the action of the Board, the protestants alleged that they were parties to the proceeding before the Board (and this is not .disputed) and “are property owners in the immediate neighborhood of the subject property, taxpayers, and constitute parties aggrieved by the said Order” of the Board. The petitioner Witney filed a motion to dismiss the appeal on November 15, 1968, the day of the hearing before the lower court.

There was no effort by the protestants to produce additional testimony before the lower court to amplify their status as aggrieved parties as we indicated in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A. 2d 294 (1966) could be done and as was done by the protestants in Aubinoe v. Lewis, 250 Md. 645 , 244 A. 2d, 879 (1968). The protestants in the instant case relied upon their allegations in their petition for appeal and upon the evidence produced before the Board. In holding thsit the motion to dismiss the appeal should be denied and that the protestants had status as “parties aggrieved,” Judge Jenifer aptly stated: “At least three of the protestants, namely, Mrs. Weir and Messrs. Critcher and Magersupp, are ⁶¹³ in sight distance of the property forming the subject of the petition.

The Weir property is located on the northerly side of Bosley Road at the north end of the petitioner’s tract of land although it is located approximately 1,100 feet from one of the parcels reclassified by the Board. There was considerable testimony as to increase in traffic and change in the nature of the use of land in the area, which according to the individual testimony of these protestants coupled with that of their real estate expert, Mr. William B. Guy, Jr. would be sufficient under the law that their personal or property rights would be specially and adversely affected by the action of the Board. These protestants were either confronting or nearby property owners and are deemed, prima facie, to be specially damaged and, consequently, persons aggrieved. The burden of challenging the fact of aggrievement was then on the petitioner to produce evidence to controvert this fact.

The petitioner did produce some evidence to this effect, but such