Creative Country Day School of Sandy Spring, Inc. v. Montgomery County Bd. of Appeals

CourtCourt of Appeals of Maryland
Citation242 Md. 552,219 A.2d 789
Docket NumberNo. 291,291
PartiesCREATIVE COUNTRY DAY SCHOOL OF SANDY SPRING, INC., et al. v. MONTGOMERY COUNTY BOARD OF APPEALS et al.
Decision Date27 May 1966

Leonard E. Cohen, Baltimore (George Gump and George W. Liebmann, Baltimore, and John D. Bowman, Rockville, on the brief), for appellants.

William M. Canby, Rockville (Miller, Miller & Canby and Robert G. Tobin, Jr., County Atty. for Montgomery County, Rockville, on the brief), for appellees.

Before PRESCOTT, C. J., and HAMMOND, HORNEY, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

The appeal in this case is from an order of the Circuit Court for Montgomery County (Pugh, J.) entered on July 7, 1965 affirming a decision of the County Board of Appeals for Montgomery County (the Board) which denied on December 12, 1963 the petition of the appellants, Creative Country Day School of Sandy Spring, Inc. (Country Day School) and Sandy Spring Acres, Inc., for a special exception under Sections 104-29(m) 1(c)(5), 104-29(w)(2) and 104-29(i) 1(e) of the Montgomery County Code of 1960 to permit the petitioners to operate a private educational institution for forty or more nursery, kindergarten and elementary school children, a riding stable and a child care home. At the time of the hearing before the Board, Sandy Spring Acres, Inc. was the contract purchaser of the land involved in the petition consisting of two parcels, known as the Daymude and Hobbs property, containing approximately 39 acres located on Route 108 in the Olney Election District, Sandy Spring, Maryland (the subject property). That corporation is now the owner of the subject property, title having passed to it subsequent to the hearing. Country Day School is the lessee of the subject property. The petition of the appellants was denied by a three to two vote of the Board.

The subject property lies between Olney and Ashton in Montgomery County. It fronts on Route 108 for approximately 350 feet. In general outline it is a panhandle of approximately 9 acres (the Hobbs property) fronting on Route 108 (which runs approximately east and west at this point) with the main body of the property consisting of approximately 30 acres (the Daymude property) averaging about 900 feet north and south and about 1600 feet east and west. Access to the main body of the subject property to Route 108 will be over the panhandle section which will not be used for any other purpose after the Hobbs' vacate the residence on the panhandle section, other than for parking areas for automobiles and buses.

Route 108 is black top road with a width of about 18 or 20 feet. It has a speed limit of 40 miles per hour. Buford Hayden, an expert land planner, who testified for the petitioners before the Board, stated that the sight distance to the entrance to the subject property from west to east is over 1000 feet and is 'very good', while the sight distance from east to east is between 300 to 400 feet and 'is not so good.'

The general character of the area in which the subject property is located is that of a residential agricultural district. It is appropriately zoned in an R-A (residentialagricultural) zone. There are several large houses on large tracts in the immediate neighborhood of the subject property. For example, the property of Arthur D. Farquhar adjoins the Daymude portion of the subject property and consists of 132 acres with a dwelling and other buildings. This property has been owned by the Farquhar family for 137 years. Nearby are even larger agricultural properties. There is, however, a small subdivision called Olney Estates on Dominion Drive to the west of the subject property which consists of 12 homes on one-half acre lots. The general Sandy Spring-Ashton area is sparsely settled, it being estimated that there are approximately 1000 residents in that area.

In the general area there are several institutional uses. They include the following: The Sherwood School, approximately a mile to the east of the subject property, a large public school, which is a combined elementary and junior senior high school complex having approximately 1880 pupils on 30.2 acres of land. In the general neighborhood, St. John's Episcopal Church operates a school which includes a kindergarten and an elementary school. St. Peter's Roman Catholic Church has an elementary school. There is also a Quaker day and boarding school for students of secondary years.

Edward L. Silver, who owns the stock in the two appellant corporations, has been a teacher and director of educational facilities for over 12 years. He owns and operates three nursery schools in the State of New York which are accredited under the laws of that State. He has obtained a master's degree from New York University in early childhood education and is completing work at that University for his doctorate in the same field. He testified at the hearing before the Board that the plan was to build a building for approximately 100 students in the winter time with a possible (and hoped for) ultimate enrollment in the nursery school of 350 children, ranging in age from 3 to 5, split into two sessions, one session in the morning and one session in the afternoon, and 950 children, ranging in age from 3 to 12 in the summer recreational program for the entire day. The summer students will be housed in tents (10 to a tent) in an open field during the summer program. A swimming pool will be constructed and during the summer the program will consist of activities such as swimming, baseball, arts and crafts, nature study and similar activities. The first building to be constructed will consist of 6 classrooms designed for 15 children per room with possibly a multipurpose room. There will be a riding stable for 4 horses. If the school enrollment reaches its ultimate goal, the children will be brought to the subject property during the winter in 35 station wagons. During the summer, 14 or 15 buses will be used to transport the increased number of children. The plan at the beginning is to use 10 station wagons during the winter with an additional 4 buses during the summer.

Mr. Hayden testified that in his opinion the proposed use would not be detrimental to the use of development of the adjacent properties or of those in the general neighborhood. He was also of the opinion that the addition of 35 station wagons and 15 buses going in and out of the subject property twice a day would not impose a hazardous condition on Route 108, although he admitted that he had not personally made any traffic counts. He had obtained two traffic counts from the State Roads Commission of Maryland on Route 108 for the average 24 hour count for 1962 which showed that just east of Olney there were 3625 vehicles a day, while just west of Ashton there were 3650 vehicles a day. There are no immediate plans to widen or otherwise substantially improve Route 108 near the subject property. Mr. Hayden was also of the opinion that the noise generated by the proposed operation would not create a nuisance.

John Zimmerman, an architect from New York City, testified for the applicants in regard to the proposed structures, screening and planting on the subject property and proposed parking facilities for the motor vehicles to be used in connection with the contemplated operation.

The Site Plan, as revised, prepared by Mr. Zimmerman (Exhibit 48-B), graphically portrays the proposed use at its ultimate capacity. The entrance road from Route 108 is laid out in approximately a north-south direction through the center of the panhandle. On the east side of the entrance road, approximately 150 feet from Route 108 is an area for bus parking and farther to the north and one the east side of the entrance road is an area for the parking of 100 automobiles. Directly across the entrance road, from the 100 car parking area, is another parking area for 100 automobiles. The entrance road then proceeds in an approximately easterly direction about 50 feet from the southerly boundary of the Daymude parcel and to the north of the entrance road at this point are the principal buildings to be constructed. They consist of a large multipurpose room with a capacity of 300, on the south of which is a kitchen and lobby. To the north of this building is an amphitheater. To the east of the multipurpose room (and connected to it by a closed corridor are four buildings containing 6 classrooms each, a total of 24 classrooms. To the east of the multipurpose building is the tent camp and to the northeast of that area is the lake. The stable, bridle path and corral are located at the northerly end of the subject property, the northerly end of the stable being 105 feet from the northerly property line. There are two swimming pools to the west of the stable which are 90 feet from the northerly property line. There is a combined tennis, basketball and handball court to the east of the swimming pools. To the northeast and east of the principal buildings is a shelter area for 10 shelters. There is also an arts and crafts building in this area. There are also softball, badminton and volleyball fields, a pitch and putt golf area as well as an archery area. The tabulation on the Revised Site Plan shows the following:

Nursery School-24 classrooms at

15 children each 360

Tent Camp Capacity 290

Shelters: 10 centers at

15 children each 300

----

Total Children 950

Mr. Zimmerman was of the opinion that the proposed construction and operation would not create any nuisance by reason of dust, gas, smoke or odor or by reason of noise.

Henry J. Connor, who had been in the building and real estate business for over 30 years and who was generally familiar with the area in which the subject property is located, and who owned a property which partially abuts the subject property testified for the applicants that in his opinion the proposed use would not adversely affect the general development of the community.

In opposition to the granting...

To continue reading

Request your trial
16 cases
  • Aero Motors, Inc. v. Administrator, Motor Vehicle Administration
    • United States
    • Maryland Court of Appeals
    • May 6, 1975
    ...v. Pantex Mfg. Co., supra; Allied American Co. v. Comm'r, 219 Md. 607, 623, 150 A.2d 421, 431 (1959); Creative School v. Board, 242 Md. 552, 571-72, 219 A.2d 789, 799-800 (1966); Director v. Daniels, 243 Md. 16, 49-50, 221 A.2d 397, 417 (1966); Rebe v. State's Attorney, 262 Md. 350, 355, 27......
  • People's Counsel v. Surina
    • United States
    • Court of Special Appeals of Maryland
    • August 23, 2007
    ...public utility ("BGE") was given preferential treatment by the local government); Creative Country Day School of Sandy Spring, Inc. v. Montgomery County Board of Appeals, 242 Md. 552, 219 A.2d 789 (1966) (distinguishing between public, private non-parochial, and private parochial secondary ......
  • Mayor and Aldermen of City of Annapolis v. Annapolis Waterfront Co.
    • United States
    • Maryland Court of Appeals
    • January 24, 1979
    ...Brouillett v. Eudowood Shopping Plaza, Inc., 249 Md. 606, 241 A.2d 404 (1968); Creative Country Day School of Sandy Spring, Inc. v. Montgomery County Board of Appeals, 242 Md. 552, 219 A.2d 789 (1966); County Council for Montgomery County v. Gendleman, 227 Md. 491, 177 A.2d 687 (1962). (emp......
  • Baltimore County v. Churchill, Ltd.
    • United States
    • Maryland Court of Appeals
    • January 10, 1974
    ...less right to challenge the constitutionality of a statute under which it is proceeding. Creative Country Day School v. Montgomery County Bd. of Appeals, 242 Md. 552, 568, 219 A.2d 789 (797) (1966).' Cf. Director of Finance v. Alford, Md., 311 A.2d 412 (1973) (decided November 28, The polit......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT