Robertson v. County Bd. of Appeals for Montgomery County

• Decision Date: 10 May 1956
• Docket Number: No. 183,183
• Citation: Robertson v. County Bd. of Appeals for Montgomery County, 122 A.2d 751, 210 Md. 190 (Md. 1956)
• Parties: W. E. ROBERTSON et al. v. COUNTY BOARD OF APPEALS FOR MONTGOMERY COUNTY and Albert W. Walker et ux.
• Court: Maryland Court of Appeals

Page 190

210 Md. 190

122 A.2d 751

W. E. ROBERTSON et al. v. COUNTY BOARD OF APPEALS FOR MONTGOMERY COUNTY and Albert W Walker et ux.

No. 183.

Court of Appeals of Maryland.

May 10, 1956.

J. Roy Thompson, Jr., Washington, D. C. (Robert C. Heeney and Robert S. Bourbon, Silver Spring, on the brief), for appellants.

Joseph B. Simpson, Jr., Rockville (Vivian V. Simpson and Simpson & Simpson, Rockville, on the brief), for appellees.

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

HAMMOND, Judge.

The decision in this zoning case from Montgomery County turns on the function of the Circuit Court and its scope of review under the statute granting appeals from County Boards of Appeal in charter counties.

This is the second appeal in the case. The Montgomery County Board of Appeals first denied an application for a special exception to permit off-street parking on a tract of land zoned residential adjacent to a tract zoned commercial, on which it was proposed to build a shopping center. The applicants, the Walkers, who are the present individual appellees, appealed to the Circuit Court for Montgomery County as permitted by Code 1951, 1955 Supp., Art. 25A, Sec. 5(V). Judge Woodward held that the Board had made incorrect findings of fact on two aspects of the matter and remanded the case for the taking of additional evidence on a third aspect. The protestants before the Board, who are the present appellants, took and appeal, claiming that the Circuit Court had exceeded its power under the appeal statute. We dismissed the appeal as premature, reserving the right to raise in any subsequent appeal from a final decision of the Circuit Court in the same proceedings any question sought to be raised in the first appeal. Hayden v. Walker, 208 Md. 114, 117 A.2d 109.

When the case went back to the Board, it assumed that it was bound by Judge Woodward's findings of fact on the two aspects of the case on which he ruled and acted on that assumption, hearing testimony on the third aspect only as the Circuit Court had ordered. It finally concluded that the Walkers had met the burden of proof imposed by the Montgomery County zoning ordinance upon an applicant for a special exception of showing the three essential prerequisites to the granting of such an exception, and granted a permit. On appeal from this decision to the Circuit Court, Judge Prescott, accepting Judge Woodward's prior decision as the law of the case, held that there was substantial evidence to support the decision of the Board on the question it decided after the remand, and affirmed. The protestants have appealed this final order. They claim here that the findings and decision of the Board in the first hearing were supported by substantial evidence and that the Circuit Court had no power to substitute its judgment on the facts for that of the Board and no power to remand the case for further testimony unless it found that the original order was not 'in accordance with law', which it did not do. The appellees argue that the Circuit Court had the power to remand the case for the purpose of taking further testimony and that, in any event, the remand was not necessary because the Walkers had already met all the burdens of proof placed on them by the ordinance and were entitled to have the court rule to this effect, as a matter of law.

The Walkers own a four acre tract of land in Montgomery County between Goldsboro Road and Avalon Drive, which has been zoned commercial for about fifteen years. Immediately to the east, they own another tract containing a little less than three acres. This tract, and all of the rest of the immediate neighborhood, is zoned residential. Before January 1, 1954, the four acre tract would have been in itself large enough to accommodate the planned shopping center and the parking space required by the ordinance then in effect. The Walkers did not avail themselves of this tide in the affairs of men that taken at the flood might have led them on to fortune, but delayed until after the January 1, 1954, amendment of the zoning ordinance, which required three times as much off-street parking space as before, as well as a special exception for the use of residential land for off-street parking. Very soon after the ordinance went into effect, the Walkers applied to the County Board of Appeals for a special exception to use the three acre lot to the east of the commercially zoned lot for off-street parking in connection with a shopping center, and the proceedings which have been recited followed.

The Montgomery County zoning ordinance that went into effect January 1, 1954, by Sec. 176-26, provides as follows:

'a. A special exception may he granted when the Board finds from a preponderance of the evidence produced at the hearing that:

'(1) The proposed use does not affect adversely the General Plan for the physical development of the District, as embodied in this chapter and in any Master Plan or portion thereof adopted by the Commission; and

'(2) 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) The standards set forth for each particular use for which a special exception may be granted have been met.

'b. The applicant for a special exception shall have the burden of proof, which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Board.'

Sec. 176-28r of the ordinance provides that a special exception may be granted in a residential zone for off-street parking of automobiles:

'* * * upon a finding by the Board that said use will not constitute a nuisance because of traffic, noise or physical activity, provided that the applicable provisions of sec. 176-18 and the following requirements are complied with:

'(1) No charge shall be made for the use of said parking space for the first hour.

'(2) No service of any kind shall be extended to persons occupying vehicles in said parking space, nor shall such space be used for automobile service, repair or storage.'

No question is raised in the case as to the compliance with the provisions of Sec. 176-18, or that any charge was to be made for parking service, or that any service was to be extended or repairs to be made in connection with the use of the parking spaces. The combined effect therefore of Sections 176-26 and 176-28r is that the Walkers, in order to be granted the special exception had the burden of persuading the Board from 'a preponderance of the evidence produced at the hearing' that: (1) the proposed use would not adversely affect the General Plan for the development of the District; (2) that the proposed use would not adversely affect the health and safety of those in the neighborhood and would not be detrimental to the use or development of the general neighborhood; and (3) that the off-street parking of automobiles would not constitute a nuisance because of traffic, noise or physical activity.

The right of appeal from the decision of the County Board of Appeals is statutory. Code 1951, 1955 Supp., Art. 25A, Sec. 5(V), provides that any person aggrieved by a decision of the Board may appeal the decision '* * * to the circuit court for the county which 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, with or without remanding the case for rehearing as justice may require.'

Judge Woodward, in the first appeal to the Circuit Court, determined that the Walkers had not met the burden of proof laid upon them by the ordinance '* * * of showing by a preponderance of the evidence, that the proposed off-street parking area will not be a nuisance because of traffic.' His consideration of the other statutory prerequisites in a careful analysis of all the evidence led him to find that 'the great preponderance of evidence shows that the general plan for the development of the District would not be adversely affected by the use of the proposed off-street parking area' and that 'the appellants showed by a preponderance of the evidence that the proposed use of the parking lot...