Perry v. County Bd. of Appeals for Montgomery County

• Decision Date: 06 December 1956
• Docket Number: No. 25,25
• Citation: 127 A.2d 507,211 Md. 294
• Parties: Thomas W. PERRY et al. v. COUNTY BOARD OF APPEALS FOR MONTGOMERY COUNTY et al. and Marjorie W. Bushong.
• Court: Maryland Court of Appeals

Page 294

211 Md. 294

127 A.2d 507

Thomas W. PERRY et al. v. COUNTY BOARD OF APPEALS FOR MONTGOMERY COUNTY et al. and Marjorie W. Bushong.

No. 25.

Court of Appeals of Maryland.

Dec. 6, 1956.

James C. Christopher and John C. Keating, Bethesda, for appellants.

Howard J. Thomas, Silver Spring (Bradshaw, Shearin, Redding & Thomas and J. Douglas Bradshaw, Silver Spring, on the brief), for Marjorie W. Bushong.

Alfred H. Carter, Asst. County Atty., for Montgomery County, Rockville (Charles M. Irelan, County Atty., Rockville, on the brief), for County Board of Appeals.

Before BRUNE, C. J., and COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

This appeal is from an order of the Circuit Court for Mongomery County, affirming the grant of a special exception for the operation of a care home in property zoned residential by the Board of Appeals for Montgomery County. The Legislature, by Chap. 566 of the Acts of 1914, incorporated 'Section 3 of the Village of Chevy Chase' as a special tax district. For convenience we shall refer to this legislatively recognized community entity as the 'Village'. The appellants appear as individuals and as the Citizens Committee of the Village, where the property is situate. The action below is defended here by Marjorie Bushong, who was granted the special exception, and by Montgomery County, which intervened by leave of the Circuit Court. The appellants urge: (1) that Mrs. Bushong failed to meet the burden of proof imposed on her as an applicant for a special exception by the zoning ordinance; (2) that the Board of Appeals had no authority to grant a use of land that would violate restrictive covenants binding the land; and (3) that regulations of the Village permitting only single family residential use of all property in the Village supersede the zoning ordinance of the Maryland-Washington Regional District in Montgomery County (the Village being in that district), and that the Board of Appeals had no authority to grant a use of land in violation of these regulations.

Mrs. Bushong purchased the property involved in 1948. Soon thereafter she remodeled it and began the operation of a care home. She obtained no permits or licenses from any one and, when she was advised that she was violating the law, applied for a special exception, pursuant to the provisions of the applicable zoning ordinance. The granting of a special exception for a care home in property zoned residential, if stated area, frontage and setback minimums are present, is permitted by Montgomery County Code, 1955, Chap. 107, Secs. 25-28q(2). It is not questioned that Mrs. Bushong's lot met these requirements. Sec. 27 puts upon the applicant for the special exception the burden of proof, which includes the burden of going forward with the evidence and the burden of persuasion on all questions of fact which the ordinance requires the Board to determine, i. e., (1) that the proposed use does not affect adversely the general plan of the district or any master plan; (2) that the proposed use will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use or development of adjacent properties or the general neighborhood; and (3) that the standards for each particular use for which a special exception may be granted have been met.

The Board found as a fact that the use of the premises as a care home would not constitute a nuisance for any reason that the use of the premises will not adversely affect the present character or future development of the community, and finally, that Mrs. Bushong, by the preponderance of the evidence produced by her, had satisfied all of the requirements of the zoning ordinance. On the appeal to the Circuit Court, Judge Prescott, '* * * after a careful examination of the entire record at least three times * * *', found nothing to show that the Board of Appeals had not acted in accordance with the law. The statute that grants an appeal to the Circuit Court from the Board of Appeals for Montgomery County, Code, 1956 Supp., Art. 25A, Sec. 5(V), provides that the court '* * * shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision * * *.' We pointed out in Robertson v. County Board of Appeals, 210 Md. 190, 122 A.2d 751, that where the findings of the board are supported by substantial evidence they are conclusive and that the function of the court is only to rule on the law. The record here shows there was substantial evidence to justify the action of the Board and that apart from the questions as to the effect of the restrictive covenants and the regulations of the Village, its action was fully in accordance with law.

The appellants in their argument on their second point--that restrictive covenants may not be violated by a zoning order--say that by virtue of the provisions in each deed, all houses in the Village must be 'built and used for residence purposes exclusively * * * and that no trade, business, manufacture or sales or nuisance of any kind shall be carried on or permitted,' annd that Montgomery County Code, 1955, Chap. 107, Sec. 4, provides that the zoning ordinance shall not be deemed to interfere with or abrogate or annul, or otherwise affect, any covenants or other agreements between parties. This part of the zoning ordinance does not say, nor should it be taken to mean, that the rest of the ordinance must not be administered and decisions made under it, solely on the basis of its own provisions. The ordinance does not override or defeat whatever private rights exist and are legally enforceable, but neither is it controlled in its workings or effects by such rights. The enforcement of restrictive covenants is a matter for the exercise of the discretion of an equity court in the light of attendant circumstances. Many times the covenant relied on may not have been originally effective or for many reasons, may have ceased to be effective at the time relief is sought. 2 Rathkopf, The Law of Zoning and Planning, p. 387, says: 'The validity of the zoning ordinance, the grant of a variance or 'exception' should be considered independently of its effect upon covenants and restrictions in deeds.' This Court, in Chayt v. Maryland Jockey Club, 179 Md. 390, 397, 398, 18 A.2d 856, 860, a zoning case, said that it could not tell whether the restrictive covenants there relied on were enforceable or not and that the lower court did not err in striking out the testimony as to the restrictions, '* * * not only because of its insufficiency to enable a determination of the issue sought to be introduced, but as well for the reason that the proceedings originated in an appeal from the Board of Zoning Appeals. It, therefore, only involved questions under the Zoning Ordinance, and it seems clear that the Baltimore City Court was without jurisdiction in that proceeding to consider appellants' claim in this respect which is of necessity based upon equitable relief, because of the covenants. Such private restrictions controlled by contract and real estate law are entirely independent of zoning and have no proper place in proceedings of this character, notwithstanding if in a proper proceeding the restrictions contended for are shown to be binding upon the properties mentioned, zoning cannot nullify them.' We hold that the Board of Appeals was right in making its determination without reference to the restrictive covenants. Neither its action nor our approval of that action would have any effect on the decision in a proceeding in equity to enforce the covenant.

We turn then to appellants' third contention and the main question in the case--whether the Board of Appeals could properly grant the special exception in the face of regulations adopted by the Village which, if effective, would ban the use of Mrs. Bushong's property as a care home. Chap. 172 of the Acts of 1916 amended the law governing the Village by providing in Sec. 2 that certain tax funds could be used for maintaining and laying of streets, alleys, sidewalks, for parking drainage, sewerage, sanitation, and other public services, for the furnishing of police protection and the removal of ashes, garbage and refuse and, finally, for the employment of a building inspector to enforce the requirements of all deeds of conveyance for properties situated in the Village and to enforce such 'building, sanitary and other regulations' as said Citizens Committee, subject to the approval of the Board of County Commissioners, prescribed. Sec. 6 of the Act of 1916 provided that the Citizens' Committee, subject to the approval of the Board of County Commissioners, could adopt such regulations with respect to dumping of garbage, sanitation, 'erection of buildings', tearing up of streets, speed, care of property, removal of snow and ice 'or other police or health regulations', as the Committee deemed proper. Jurisdiction was given justices of the peace of Montgomery County to try the violation of any such regulations, as in the case of misdemeanors. In 1938 the Citizens Committee prepared certain regulations and presented them to the Board of County Commissioners for approval. They were approved on October 18, 1938, and have never been repealed or withdrawn by the County Commissioners or County Council of Montgomery County. The perminent parts of those regulations are:

Section 18(a). 'It shall be unlawful for any person or persons to use or cause to be used any building or premises within the section for any business purpose or for any purpose other than a one family dwelling and the accessory buildings generally used in connection with such dwellings for residence purposes.

'Section 19. No...