Town of Somerset v. Montgomery County Bd. of Appeals

• Decision Date: 16 December 1966
• Docket Number: No. 511,511
• Citation: Town of Somerset v. Montgomery County Bd. of Appeals, 245 Md. 52, 225 A.2d 294 (Md. 1966)
• Parties: TOWN OF SOMERSET et al. v. MONTGOMERY COUNTY BOARD OF APPEALS et al.
• Court: Maryland Court of Appeals

Page 52

245 Md. 52

225 A.2d 294

TOWN OF SOMERSET et al. v.MONTGOMERY COUNTY BOARD OF APPEALS et al.

No. 511.

Court of Appeals of Maryland.

Dec. 16, 1966.

Alfred L. Scanlan, Bethesda, and Rourke J. Sheehan, Rockville (Arthur G. Lambert, Plummer M. Shearin, Robert L. Higgins and Lambert, Furlow & Sheehan, Rockville, and Shea & Gardner, Washington, D. C., on the brief), for appellants.

Robert H. Metz(Robert G. Tobin, Jr., Rockville, on the brief), for appellee, Montgomery County Council.

R. Robert Linowes, Silver Spring (Linowes & Blocher, and James R. Trimm, Silver Spring, on the brief), for appellee, M. K. Fry.

Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and FINAN, JJ.

OPPENHEIMER, Judge.

This zoning appeal presents intertwined questions of due process of law in the procedure of the administrative agency, the construction of the zoning ordinance, the legal effectiveness of the appeal from the administrative order, and the proper limits of the lower court's discretionary action.

The appellee, M. K. Fry and her husband, since deceased (the Frys) petitioned the Montgomery County Board of Appeals(the Board) for a special exception under the Montgomery County Zoning Ordinance, to construct and operate an apartment hotel in an R-10 zone (Multiple-Family, High-Density Residential) on their property at the southwest corner of the intersection of Wisconsin Avenue and Bradley Boulevard in Chevy Chase, Maryland.The lot area of the property covers about 79,000 square feet, of which 15,00 square ffet or 18% of the lot would be occupied by the building.The proposed apartment hotel would have 11 stories and a penthouse, and would rise 100 feet above grade.There would be 169 units, of which 115 would be apartments, 22 hotel rooms, and 32 hotel suites.The building would include a barber shop, beauty parlor, coffee shop and pharmacy.

The property involved lies at the northern end of the residential section of Wisconsin Avenue.The Zoning Plan for the Bethesda Business.District and vicinity, adopted in 1956, established Bradley Boulevard as a boundary line between the commercial uses of the Bethesda Business District to the north and the residential area to the south.

Resolutions in opposition to the granting of the exception were filed, inter alia, by the Town of Somerset and the Village of Chevy Chase, two of the appellants.The Board's opinion states that a hearing on the petition was first scheduled for April 15, 1965, at 3:30 P.M. but was postponed to 10:00 A.M. on May 20, 'to allow a full day for this hearing since the opposition was represented by two attorneys.'At the hearing on May 20, Mr. Shearin, one of the attorneys for the opposition, stated he represented the Town of Somerset, two citizens' associations and a number of individuals, whose given addresses showed that they lived in the general vicinity of the property involved.Prior to the taking of testimony, a motion was made on behalf of the protestants to dismiss the application on the ground that, even if a special exception were permitted, the plans showed the proposed apartment hotel building would be a clear violation of the area, frontage and setback requirements of the Montgomery County Zoning Ordinance.The motion was denied.

At the conclusion of the testimony of the first expert witness offered by the Frys, Mr. Shearin, on behalf of the protestants, asked leave to cross-examine.The Chairman of the Board stated that cross-examination was not allowed.He admitted that cross-examination had been permitted 'in the last few years,' but 'from this time forward' cross-examination of witnesses was not to be permitted.The Chairman said:

'We got into this about a month ago.We have taken the motion since our present rules of procedure do not specifically say, rather they are silent in this matter, we are conducting public hearings in the true sense of a public hearing rather than adversary trial, is what it had gotten into.You can call any witness you want.The petitioner in other contested cases such as this has made his witnesses available to be questioned by the opposition after he finishes his case.We feel if the petitioner(sic) hears the whole case, it eliminates a whole lot of questions.On that basis, right or wrong this is the way we have been proceeding for about the last month.We see nothing that requires an adversary trial.'

Both Mr. Shearin and Mr. Sheehan, the other attorney for the protestants, stated they were taken completely by surprise, and had received no notice from the Board, through the press or otherwise, of the change in its procedure.An objection was taken to the Board's ruling, and the objection was duly renewed after cross-examination of each of the Frys' succeeding witnesses had been refused.After the Frys had concluded their case, the appellants recalled several of the Frys' experts as hostile witnesses.

The Board recessed at 3:30 P.M.On resumption of the hearing ten minutes later, before the appellants had concluded putting on the applicants' witnesses as their own (the procedure permitted by the Board instead of cross-examination), the Chairman of the Board announced that the taking of testimony would be concluded at 4:20 P.M.Both counsel for the appellants vigorously protested.They stated they had never been given to understand that any such time limitation would be imposed.The Vice-chairman of the Board, Mrs. Elaine Lady, dissented from the ruling.In her later dissenting opinion, she said, on this issue:

'1.The chairman's statement on April 15, 1965 that the hearing would be continued to May 20, 1965, to allow a full day, was not definitive, or preclusive of another continuance if all the witnesses had not been heard.

'2.The time limitation which was imposed late in the day, was not announced at the beginning of the hearing on May 20, 1965.The equal-time concept was stated after the proponents had presented their case and the counsel for the opponents had questioned a number of witnesses but not all they proposed to call.

'The Board ruled that the opposition must conclude their case within 50 minutes.Not having been forewarned at the beginning of the hearing, the opposition had no opportunity to give priority of importance to witnesses, or to allocate the length of time for questioning individual witnesses for the purpose of presenting their case most effectively within the time allowed.'

Mr. Shearin stated that he had four witnesses he wished to call, including Mrs. Slater, one of the appellants.Mr. Sheehan stated he wished to call as an expert witness an adjoining property owner, a builder, who had been waiting all day.Mr. Shearin, on behalf of the appellants, proffered 'to show by the several witnesses who have not been allowed to testify that this proposed use would constitute a substantial and serious hazard to the safety of residents and workers in the area and particularly the children who live in the vicinity of the site in question here today.The mothers of some of those children are here prepared and ready to testify.We protest most vigorously this limitation which has been imposed upon us in the middle of the afternoon which prevents their testifying.'A motion made by both counsel for the appellants to continue the case to a later date for the presentation of pertinent and relevant additional evidence was denied.

On June 2, 1965, the Board, by a vote of 4 to 1, adopted a resolution granting the special exception for which the Frys had applied.The opinion of the majority affirmed the rulings previously made as to the construction of the zoning ordinance, the denial of the right of the protestants to cross-examine the applicants' witnesses, and the notification to the protestants that they had to conclude their testimony in the afternoon of the day on which the hearing began.

On July 2, 1965, The Town of Somerset, The Village of Chevy Chase, Mr. and Mrs. Picken and Mrs. Slater filed an order for appeal from the Board's decision to the Circuit Court for Montgomery County.The order stated it was filed pursuant to Rules B1 et seq. of the Maryland Rules of Procedure.On July 12, the appellants filed a petition of appeal in the Circuit Court, in support of the order for appeal previously filed.Among the grounds stated in the petition for the reversal of the Board's order were its rulings on the interpretation of the zoning ordinance, its denial of the right to cross-examination, the time limitation imposed by the Board and its refusal to grant a continuance.The Board's procedure, it was claimed, violated the appellants' constitutional rights.The petition also alleged that the applicants had failed to meet the burden of showing that the requirements for the granting of a special exception had been met.

Mrs. Fry demurred to the petition, under Maryland Rule B9, on the grounds, inter alia, that the petition failed to allege any of the appellants were aggrieved parties, or had sustained any damages; that the appellants were too far removed from the property involved to constitute them aggrieved parties; and that the Town of Somerset and the Village of Chevy Chase had no standing to appeal since no allegation of ownership of land was made in the petition and that, if they did own property, it was too far removed.The Board filed a similar demurrer.

On November 1, before decision on the demurrer, the appellants, while maintaining that the demurrer should be overruled, moved for leave to amend their petition of appeal.The motion stated that if leave were granted, the appellants would allege, inter alia, the each of them was a party to the Board proceedings; that each is aggrieved by the Board's decision; that the Pickens own and reside on property within approximately one block of the proposed apartment hotel; that Alice Slater is a resident and owner of property within three short blocks; that the Town of Somerset is located in the vicinity of the property...