LaForce v. Bucklin, 243

• Decision Date: 05 February 1971
• Docket Number: No. 243,243
• Citation: 273 A.2d 144,260 Md. 692
• Parties: Pierre J. LaFORCE et al. v. Erwin W. BUCKLIN et al.
• Court: Maryland Court of Appeals

Page 692

260 Md. 692

273 A.2d 144

Pierre J. LaFORCE et al. v. Erwin W. BUCKLIN et al.

No. 243.

Court of Appeals of Maryland.

Feb. 5, 1971.

Pierre J. LaForce, Bethesda (Alfred L. Scanlan, Potomac, on the brief), for appellants.

Joseph P. Blocher, Silver Spring (Linowes & Blocher and R. Robert Linowes, Silver Spring, on the brief), for Mass-Goldsboro Joint Venture.

David L. Cahoon, County Atty. (Robert G. Tobin, Jr., Asst. County Atty., Rockville, on the brief), for Erwin W. Bucklin.

Argued Before HAMMOND, C. J., and BARNES, SINGLEY, SMITH and DIGGES, JJ.

SMITH, Judge.

We shall here be obliged to interpret a Montgomery County zoning ordinance relative to the permitted height of a building in a commercial zone. We shall affirm the order of the trial judge (Moore, J.) who wrote a very able and comprehensive opinion permitting the construction. We shall also be concerned with the application of Maryland Rule 882 c relative to the Court's discretion in the assessment of costs, since one party has printed unnecessary material.

As the trial judge observed in his opinion, the property here involved is familiar to this Court, being the same property involved in Montgomery County Board of Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1962); Robertson v. County Board of Appeals, 210 Md. 190, 122 A.2d 751 (1956); and Hayden v. Walker, 208 Md. 114, 117 A.2d 109 (1955). It is located on the north side of Massachusetts Avenue Extended in Montgomery County. It is bounded on the west by Goldsboro Road and by Avalon Drive on the east. It comprises 2.2845 acres. It is zoned C-1 (Local Commercial), has been so zoned since 1942, and, as Judge Moore put it, 'is surrounded by a residential community of substantially built homes.'

Appellants, neighboring property owners (LaForce), when they learned that a building permit had been issued to appellees who are known as 'Mass-Goldsboro Joint Venture' (Mass-Goldsboro) for the construction of a building to be used for offices and retail facilities, appealed to the Montgomery County Board of Appeals contending that the permit was in violation of the height requirements of the Montgomery County Code (1965) set forth in § 111-20(e) for a C-1 zone (Local Commercial). That section provides:

'The height limit for a building shall be two and one-half stories, but not over thirty-five feet.'

It then defines in § 111-2:

'Building, height of. The vertical distance measured from the level of approved street grade opposite the middle of the front of a building to the highest point of roof surface of a flat roof; to the deck line of a mansard floor; and to the mean height level between eaves and ridge of a gable, hip or gambrel roof; except, that if a building is located on a terrace, the height above the street grade may be increased by the height of the terrace. In the case of a building set back from the street line thirty-five feet or more, the building height is measured from the average elevation of finished ground surface along the front of the building. On corner lots exceeding twenty thousand square feet in area, the height of the building may be measured from either adjoining curb grade. For lots extending through from street to street, the height may be measured from either curb grade.'

The Board of Appeals affirmed the action of the building inspector in granting the permit and the circuit court affirmed the action of the Board of Appeals.

The building is located approximately 55 feet from Avalon Drive and about 45 feet from Goldsboro Road. The lot is a sloping one. The parties apparently are able to agree that the average elevation of the land on Avalon Drive is 240 feet above mean sea level while the average elevation on Goldsboro Road is 216 feet. Although the building is five stories in height, its actual height above the curb line of Avalon Drive is 27 1/2 feet. Mass-Goldsboro proceeded with construction and occupancy of the building during the trip of this case through the courts.

LaForce contends:

'The building height definition section provides, in effect, two measuring points with respect to buildings. One such measuring point is to be utilized when construction is within 35 feet of the street line; the other is to be referred to when the building is set back 35 feet or more from the street line. No exemption is created for corner or through lots from this 35-foot provision and, indeed, none was intended. The sole purpose of the separate provisions for corner and through lots was simply to give the owner-developer of the corner or through lot the option of choosing either adjoining street grade as a measuring point since, by the very nature of a corner or through lot, either street grade may be significant with respect to the building to be constructed.'

We do not read the ordinance that way. As we read it, if this were an interior lot, measurement would be from the street grade, except that if the building were set back more than 35 feet from the street the point of measurement would be 'the average elevation of finished ground surface along the front of the building.' (Emphasis added.) One speaks...