Yorkdale Corp. v. Powell

• Decision Date: 07 December 1964
• Docket Number: No. 353,353
• Citation: 205 A.2d 269,237 Md. 121
• Parties: YORKDALE CORPORATION v. Edwin E. POWELL.
• Court: Maryland Court of Appeals

Page 121

237 Md. 121

205 A.2d 269

YORKDALE CORPORATION v. Edwin E. POWELL.

No. 353.

Court of Appeals of Maryland.

Dec. 7, 1964.

William F. Mosner, Towson (Power & Mosner, Townson, on the brief); reargued by W. Lee Harrison and William F. Mosner, Towson (Power & Mosner, Towson, on the brief), for appellant.

Ernest C. Trimble, Towson, for appellee.

Argued April 28, 1964, before HENDERSON PRESCOTT, HORNEY, SYBERT and THOMAS J. KEATING, Jr., specially assigned, JJ.

Reargued Sept. 15, 1964, before HENDERSON, C.J., and HAMMOND, PRESCOTT, HORNEY, MARBURY, SYBERT and OPPENHEIMER, JJ.

HAMMOND, Judge.

Yorkdale Corporation, the appellant, which in 1960 acquired some five acres of land on the east side of York Road about a mile south of Towson (all but about an acre, which was zoned for one or two-family residential use, was zoned for apartment use), asked the Zoning Commissioner of Baltimore County in 1963 to reclassify the residentially zoned acre to apartment use, to grant a special exception for an elevator apartment, to grant a variance allowing an additional twenty-three feet in height for the proposed building, and to grant a density variance permitting the apartment house to embrace three hundred twenty-five living units. Edwin E. Powell, the appellee, a nearby property owner, protested. The zoning commissioner granted Yorkdale's requests with the exception of the number of living units which was cut to two hundred eighty-five. Powell appealed to the Board of Zoning Appeals which denied the height increase, further reduced the number of living units to two hundred fifty and otherwise affirmed the commissioner. Powell appealed to the circuit court where, by agreement, the case was heard and decided on the question of whether the zoning ordinances of Baltimore County gave the zoning officials power to grant a variance as to density.

The case was argued before Judge Berry on November 13, 1963, and on December 4 he held that Art. 3, Sec. 307 of the zoning regulations of Baltimore County entitled 'Variances' ('The Zoning Commissioner of Baltimore County and the Board of Zoning Appeals, upon appeal, shall have and are hereby given the power to grant variances from area and height regulations * * *' where strict compliance with the law would result in 'practical difficulty or unreasonable hardship'), read with Art. 2, Sec. 217.7 of those regulations (which defines permissible densities), did not authorize a variance in density.

Yorkdale appealed to this Court and the case was argued on April 28, 1964. While a decision was under consideration, we were informed that the Baltimore County Council had on December 2, 1963, passed Bill 107, which was signed into law by the County Executive on December 5 and became effective January 20, 1964, to amend Art. 3, Sec. 307, so as to spell out that 'no increase in residential density beyond that otherwise allowable by the Zoning Regulations [Sec. 217.7] shall be permitted as a result of any such grant of a variance from height or area regulations.'

Feeling that the amendment might have made the main issue moot, we set the case down for reargument, Md. Rule 835 a 2, and the point was briefed and argued.

Maryland consistently has followed the rule that '[a]n appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence,' as Judge Markell, for the Court, repeated in Woman's Club of Chevy Chase v. State Tax Comm., 195 Md. 16, 19, 72 A.2d 742, 743 (or, it may be noted, even when a judgment wrong when rendered is made right by the change in the law). See also for this proposition that a change in the law after a decision below and before final decision by the appellate Court will be applied by that Court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent, Keller v. State, 12 Md. 322; Day v. Day, 22 Md. 530; Gordy v. Prince, 175 Md. 688, 7 A.2d 611; Cockerham v. Children's Aid Society, 185 Md. 97, 43 A.2d 197; and Tudor Arms Apts. v. Shaffer, 191 Md. 342, 62 A.2d 346.

The rule has been applied in zoning cases. In Banner v. Home Sales Company D, 201 Md. 425, 94 A.2d 264, a property owner on November 27, 1947, sought a change of proposed zoning of five acres as 'Cottage Residential' to a group housing classification, so that he could proceed with his housing projects on which he had spent a large amount of money. The Board of County Commissioners of Anne Arundel County granted the request on December 2, 1947, and classified the five acres as 'Group Housing.' On December 19, 1951, the owner applied for permits to build seventy-three group houses. On March 6, 1952, before construction of the houses had begun, protestants filed a petition for a change in the zoning of the five acres from 'Group Housing' to 'Cottage Residential.' While the petition for a change was being considered, the owner began to build the foundations for the seventy-three group houses. Anne Arundel County had no provision for zoning appeals and the protestants filed a bill in equity, alleging that the change in 1947 to 'Group Housing' was arbitrary, discriminatory and illegal, and praying a declaration that such zoning be declared invalid and void and that construction be enjoined until the zoning commissioner and the Board act on the petition for rezoning.

The chancellor held that the change to 'Group Housing' zoning was valid, and the protestants appealed. At the argument before us, it was agreed that since the passage of the decree appealed from, the property had been rezoned by the Anne Arundel County officials back to 'Cottage Residential.' This Court said (p. 428, 94 A.2d p. 265): 'The case before us has therefore become moot. * * * The zoning contested in the case before this Court has been superseded by the zoning authorities.'

There was a similar holding in Lake Falls Ass'n v. Board of Zoning Appeals, 209 Md. 561, 121 A.2d 809. The circuit court, on September 15, 1955, affirmed the Board of Zoning Appeals in its action in rezoning a piece of ground from residential to 'E' Commercial. The protestants appealed to this Court and, thereafter, on November 8, 1955, a new land use map for the area was adopted which zoned the property 'Business Local.' It was stipulated at the argument here that the uses permitted under 'Business Local' are not the same as were permitted under 'E' Commercial and that the commercial uses under the former are more restricted than they were under the latter. This Court said (p. 565, 121 A.2d p. 811) 'In the Banner Case the ultimate change in zoning of the property satisfied the purposes of the appellants, whereas, in the present case, it is assumed that the new Land Use Map does not satisfy the appellants. But, in both cases, the cause of action, i. e., the zoning classification that was the subject of litigation was extinguished by repeal.'

In Grau v. Board of Zoning Appeals, 210 Md. 19, 23, 122 A.2d 824, 826, the circuit court had affirmed the Board in the reclassification of two lots at the northwest corner of Loch Raven Boulevard and Mussula Road in Baltimore County from 'B' (Semidetached) Residential to 'E' Commercial. The Board's action was on July 17, 1953, the circuit court's on June 24, 1955. The protestants appealed to this Court. On November 14, 1955, the County Commissioners adopted a new zoning map for the area and zoned the lots R 6 (residential one and two families) on the new map. This Court held the case moot '* * * because the reclassification ordered by the Board of Zoning Appeals * * * has been superseded by the County Commissioners.'

It would seem to follow from the decisions in Banner, Lake Falls and Grau that an applicant for rezoning to a more intense use of his property, who has been successful before the zoning authorities and the circuit court does not acquire a vested or substantive right which may not be wiped out by legislation which takes effect during the pendency in this Court of the appeal from the actions below.

The decisions in these zoning cases are consistent with decisions in other areas of administrative law. See Beechwood Coal Co. v. Lucas, 215 Md. 248, 137 A.2d 680. There, the law in effect when the industrial accident happened made the findings of the Medical Board binding on the Commission if there was any evidence to support them. The Legislature deleted this provision effective June 1. This Court upheld the right of the Commission to review and disturb the findings of the Medical Board since the case was heard by the Commission after the change in the law. Chief Judge Brune, for the Court, said (p. 254, 137 A.2d p. 683):

'* * * where the effect of the new statute is not to impair existing substantive rights but only to alter the procedural machinery involved in the enforcement of those rights, such legislation is usually construed as operating on all proceedings instituted after its passage, whether the right accrued before or after that date.'

Relied on was Thomas v. Pennsylvania R. Co., 162 Md. 509, 160 A. 793, where a new law which did away with witnesses and the de novo theory on appeals from the Compensation Commission's action and required the court review to be confined to the record before the Commission, was held to be applicable to an appeal entered before the amendment to the law. Also relied on were State, to Use of Isaac v. Jones, 21 Md. 432 (statute shortening period of limitations upheld), and Elliott v. Elliott, 38 Md. 357 (new statute authorized court to restrict remarriage of offending party). Judge Brune, for the Court, said further in Beechwood (215 Md. pp. 256-257, 137 A.2d p. 684):

'Our views are reinforced by the special rule of statutory construction that rights which are of purely statutory origin and have no basis at common law are wiped out when the statutory provision creating them is repealed, regardless of the time...