Maryland-National Capital Park and Planning Commission v. Montgomery County, MARYLAND-NATIONAL

CourtCourt of Appeals of Maryland
Citation267 Md. 82,296 A.2d 692
Docket NumberNo. 29,MARYLAND-NATIONAL,29
Decision Date16 November 1972

James W. Tavel, Silver Spring (Robert H. Levan and Sanford E. Wool, Silver Spring, on the brief), for appellant.

Richard M. Millman, Washington, D. C. (Harvey B. Bolton, Jr., Washington, D. C., and C. Edward Nicholson, Silver Spring, on the brief), for National Council of Senior Citizens and others.

John B. Walsh, Jr., Asst. County Atty. (Richard S. McKernon, County Atty., Alfred H. Carter, Deputy County Atty. and William J. Chen, Jr., Asst. County Atty., Rockville, on the brief), for Montgomery County Board of Appeals, and others.


LEVINE, Judge.

The parties to this appeal have apparently eschewed the suggestion in Montgomery Co. v. Met. District, 202 Md. 293, 96 A.2d 353 (1953), where, speaking for this Court, Chief Judge Sobeloff stated:

'The Washington-Suburban area, whose rapid growth was already in process a quarter of a century ago, induced the Lugislature to create the Maryland-National Capital Park & Planning Commission and other bi-county agencies in the hope of assuring integrated planning and co-ordinated action in respect to public improvements in this expanding section of the State. Not only in the original enactment creating the Planning Commission, but in the various amendments made from time to time to this statute and to laws dealing more directly with the authority of the two counties, one can clearly discern the legislative expectation that the counties and the Commission should function in harmonious cooperation.' 202 Md. at 301-302, 96 A.2d at 356 (emphasis added).

Internecine strife, not unknown to Montgomery County, arises out of this effort by appellant Maryland-National Capital Park and Planning Commission (the Commission), to appeal a decision of the Montgomery County Board of Appeals (the Board of Appeals). The Commission, although of independent corporate existence, through the Montgomery County and Prince George's County Planning Boards which comprise it, functions as the planning arm of the respective county governments. It seeks to bring an appeal in which Montgomery County finds itself the appellee. The issue presented to us is whether the Commission has standing to appeal to the Circuit Court from a decision of the Board of Appeals which granted a special exception to the other appellee, the National Council of Senior Citizens (NCSC), for the construction and operation of an eleemosynary and philanthropic institution for housing the elderly or handicapped.

NCSC filed its application for the special exception pursuant to Section 111-37m-1 of the Montgomery County Zoning Ordinance. Following extended hearings, during which many witnesses appeared in support of or in opposition to the special exception, the Board of Appeals granted the petition. A large number of the citizens who were unsuccessful protestants filed an appeal to the Circuit Court which was dismissed on the grounds that the Board of Appeals was not a proper appellee, as it had been captioned, and consequently that there was a total lack of a necessary party. We reversed that decision in Redden v. Montgomery County, 265 Md. 567, 290 A.2d 494 (1972).

Prior to the hearings before it, the Board of Appeals complied with Section 111-37m-1(6) 1 and sought the recommendation of the Montgomery County Planning Board (the Planning Board), whose five members, as we noted earlier, comprise the Montgomery County segment of the Commission. The Planning Board informed the Board of Appeals by letter that a majority of the Commissioners had voted to endorse its staff's recommendation that the petition be denied, a copy of the recommendation being attached to the letter.

Later, at one of the hearings, Robert L. Paxson, employed by the Commission as Senior Planning and Zoning Analyst, appeared before the Board of Appeals on behalf of the Planning Board. Relevant excerpts from his testimony are quoted here:

'Mr. Paxson: For the record my name is Robert L. Paxson, Jr. I am employed by the Maryland-National Capital Park and Planning Commission as a Planning and Zoning Analyst. I appear here today to represent the Montgomery County Planning Board.

'Mr. Paxson: As you are aware, Section 111-37m-1, 6, requires that the Montgomery County Board of Appeals contact the Planning Board and request a recommendation. Mr. O'Brien (Chairman of the Board) did this several months ago. And the Board took this up at a regularly scheduled meeting and has complied by furnishing you its recommendation. Its recommendation is for denial, as you know.

'I would like to point out as you also know that both the Staff and the Board have recommended denial of the subject request. The Staff places its emphasis on the access problem as well as the preservation of the scenic Potomac Palisades.

'Mr. Paxson: I am here to represent the Planning Board. They have instructed me to relate to the Board of Appeals, according to the sections of the ordinances, their feelings on this.'

After the granting of the special exception, the Commission noted an appeal from that decision to the Circuit Court. 2 In its petition on appeal to the Circuit Court, the Commission alleged, inter alia:

'2. That on March 4, 1971, the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission, as required by Section 111-37m-1(g) (sic) of the Montgomery County Code, endorsed the report of its technical Staff and recommended that the application be denied . . ..

'4. That the Montgomery County Planning Board, by its technical Staff, appeared and testified in opposition to the application during the hearings . . ..'

Each of the appellees responded to the appeal by filing a 'Motion Raising Preliminary Objection' in which they challenged the standing of the Commission to appeal. The Motions came on for hearing before Judge Moorman who, after carefully considering the Commission's arguments, ruled that it lacked 'standing to appeal,' and granted the Motions. The thrust of his decision was that the Commission was not aggrieved by the Board's decision, and hence had failed to bring itself within the ambit of Section 2-92 of the Montgomery County Code which requires a person 'to be aggrieved by the decision of the Board (of Appeals) and a party to the proceeding before it' in order to take an appeal to the Circuit Court from Board decisions. (Emphasis added).

Before this Court, appellant contends it possessed standing to maintain the appeal on either of two alternative grounds. First, it argues that the appeal is authorized by Section 99 of ch. 780, Laws of Maryland of 1959, as amended (the Regional District Act). It provides:

'99. Enforcement of building permit requirements.

The construction, reconstruction, erection, structural alteration, or use of any building or other structure or the use of land or premises in violation of any of the provisions of this subtitle or of any of the provisions of any regulation enacted under this sub-title or of any decision made under this sub-title, is a misdemeanor. The willful issuance of a building, use, or occupancy permit in violation of any such provision or decision is a misdemeanor. The County Council of Montgomery County, the County Commissioners of Prince George's County, or the prosecuting official of either of the counties may prosecute any such violation. In addition to all other remedies provided by law, said County Council and said County Commissioners, public officials of any municipality or political subdivision within the Regional District, or any neighboring property owner or occupant may institute injunction, mandamus, or other appropriate action, or proceeding to prevent such unlawful construction, reconstruction, erection, alteration, or use. Any court of competent jurisdiction has jurisdiction to issue restraining orders and temporary or permanent injunctions or mandamus or other appropriate forms of remedy or relief.' (emphasis added).

Appellant says it is a political subdivision and this appeal is an 'appropriate action or proceeding' to prevent what it regards as a threatened 'unlawful construction . . . or use.'

Secondly, the appellant urges that its role before the Board of Appeals-carried out by the written communication and the testimony of Mr. Paxson-rose above the narrow participation envisioned by 111-37m-1(6), pursuant to which it was treated as if it amounted to no more than an ordinary witness giving testimony, and that instead it became an actual party to the proceeding. Furthermore, it contends, it was aggrieved by the Board's decision in a public sense as distinguished from the more conventional status of a nearby property-owner. Thus, it brought itself within the provisions of Section 2-92 and possessed the requisite standing to maintain the statutory right of appeal.


In its dependence upon Section 99 as authority for appellate status, the Commission has necessarily burdened itself with the rather formidable task of establishing that it is a 'political subdivision' within the meaning of the statute. For this contention, the Commission relies heavily upon the following authorities where appeals, similar to that which it has attempted here, were pursued on the authority of statutory counterparts to Section 99: City of East Providence v. Shell Oil Co., 290 A.2d 915 (R.I.1972); City Council of Peabody v. Board of Appeals of Peabody, 277 N.E.2d 296 (Mass.1971); Kline v. Board of Township Trustees of Chester Township, 13 Ohio St.2d 5, 233 N.E.2d 515 (1968); Planning Board of Springfield v. Board of Appeals of Springfield, 338 Mass. 160, 154 N.E.2d 349 (1958); Carr v. Board of Appeals of Medford, 334 Mass. 77, 134 N.E.2d 10 (1956), and David v. Board of Appeals of Reading, 333 Mass. 657, 132 N.E.2d 386 ...

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