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Pattison v. Corby

Decided: July 6, 1961.

PATTISON
v.
CORBY ET AL.



Appeal from the Circuit Court for Montgomery County; Shure, J.

Henderson, Prescott, Horney, Marbury and Sybert, JJ. Horney, J., delivered the opinion of the Court.

Horney

The sole question in this case is whether the appellant (William H. Pattison, Jr.) was an "aggrieved" person and as such entitled to appeal to the Circuit Court for Montgomery County from a rezoning resolution of the Montgomery County District Council.

The appellant by his order for and petition to appeal sought to vacate and set aside the rezoning resolution and the denial by the council of his petition for a reconsideration of that action. The applicants for the rezoning (Karl W. Corby and Mary Ellen Brewer) as well as Montgomery County demurred to the petition on the ground that the appellant did not allege that he had suffered or would suffer special damage by reason of the rezoning resolution. The lower court sustained both demurrers with leave to amend.

The appellant then filed an amended petition to appeal in which he reasserted the allegations of his original petition and added other allegations in an attempt to show that he would be affected by the granting of the reclassification. Again, both appellees demurred on the same ground of failure to show special damage, and again the lower court sustained both demurrers, without leave to amend in this instance, and entered a judgment for costs against the appellant. This appeal followed.

The amended petition alleged, among other things, that

the applicants requested the reclassification of 96.8283 acres of land in the fourth election district, located west of the old Rockville Pike, north of Grosvenor Lane and east of new Route 240, from R-90 zoning (one-family detached restricted residential) to R-10 zoning (multiple-family high density residential) or R-30 zoning (multiple-family low density residential) and that the Maryland-National Capital Park and Planning Commission, upon the finding and recommendation of its technical staff and planning board, suggested denial of the application of the entire acreage sought and instead recommended approval of rezoning for 54.6630 acres fronting on Rockville Pike.

The petition further alleged that at the public hearing before the council the applicants had urged that there was need for additional apartment zoning in the area; that the construction of Route 70-S had served to separate and isolate the property in question from any established residential area; that the topography rendered it more desirable for apartment rather than single family residential development; that the proposed R-10 development would not adversely affect existing school facilities; and that such R-10 development would be compatible with the individual, public service and non-residential future development of an adjacent 300-acre tract owned by the Corby family.

On the other hand, the appellant, who resides in the Luxmanor subdivision in the same planning district, but at a considerable distance to the west, and out of sight of the property of the applicants (according to the aerial photograph exhibit), urged that there was little need for apartment zoning in the area; that the applicants had failed to show any error in the original zoning or any change in the character of the neighborhood; that the future development plan offered by the applicants for the adjacent 300-acre tract posed an "immediate and dangerous threat" to the stability and continued orderly development of neighboring areas such as that in which the appellant is a resident property owner; that the granting of even this partial reclassification prior to the promulgation and adoption of a master plan for the area was

premature and contrary to the orderly development of the planning district in accordance with a comprehensive plan; and that the granting of the requested rezoning would effect a change in the character of the community upon which the Corby family would predicate further rezoning requests directed toward implementing the non-residential development of adjacent acreage to the discomfort, depreciation and devaluation of surrounding residentially developed areas, including that in which the appellant resides.

The petition also alleged that the denial by the council of the petition for reconsideration of the reclassification -- in which the reasons why rezoning should not have been granted were reiterated in part and in part amplified -- "was, and is, arbitrary, capricious, unreasonable, contrary to law and invalid," but the appellant did not state (other than those ...


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