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Toomey v. Gomeringer

Decided: July 3, 1964.

TOOMEY ET AL.
v.
GOMERINGER ET UX.



Appeal from the Circuit Court for Baltimore County (BERRY, J.).

The cause was argued before Brune, C.J., and Hammond, Horney, Marbury and Sybert, JJ.

Brune

BRUNE, C.J., delivered the opinion of the Court.

Objecting neighbors (the protestants) appeal from an order of the Circuit Court for Baltimore County (Berry, J.) reversing an order of the County Board of Appeals and granting a petition of the appellees (the applicants) for the reclassification of certain property, which petition the Board had denied. The reclassification had originally been granted by the Zoning Commissioner, and his order had in turn been reversed by the Board. The applicants are the owners and prospective sellers of the property in question. The contract purchaser, owner of a chain of food stores, is not a party to these proceedings, but two of its representatives testified before the Board.

The applicants (appellees) have filed a motion to dismiss the appeal, which was heard immediately prior to the argument on the merits. The motion raises two contentions: (a) that the protestants were too late in intervening and answering the appeal from the Board's order in the Circuit Court, and (b) that they have no sufficient interest to maintain this appeal.

The first of these is based upon Maryland Rule B9, which is one of the Rules relating to appeals from administrative agencies contained in subtitle B of the Rules governing Special Proceedings. This Rule provides in part that a party before the agency who desires to participate in the appeal shall file an answer "within thirty days after the filing of the petition of appeal, or such longer or shorter time as maybe fixed by the Court." This contention was raised by a preliminary motion in the trial court, which was heard and denied by Judge Turnbull. We think that his ruling was correct.

Though ordinarily an answer should be filed within the thirty days, we think that Rule B9 is not inflexible and mandatory as to the thirty day period. It is not shown that the applicants were prejudiced by the delay from early June to early August in the filing of the answer, and the delay seems to have been due at least to some extent to delay on the part of the applicants in furnishing the protestants with a copy of the petition of appeal as had been promised. The provisions of Rule B4 a and b with regard to the time for filing an appeal are generally similar to those of Rule B9 for the time of filing an answer. All use the word "shall," as does Rule B2 e, which deals in part with the time for filing a petition which, if not joined with, must follow an order for appeal. We note that Rule B4 c requires an application for extension of time for filing an order of appeal to be made within the time allowed for filing the order of appeal. There is no counterpart to this provision in Rule B9, nor is there any to Rule B5. The latter provides that the appeal shall be dismissed for failure to file an order for appeal within the time prescribed by Rule B4, or to file a petition of appeal under Rule B2 e within the time prescribed by the Rule, "unless cause to the contrary be shown." If the provisions as to time of Rule B4 a and b or of Rule B2 e were mandatory requirements, there would hardly be any necessity

for the provisions of Rule B5 for the dismissal of the appeal; and the concluding clause of that Rule shows that some elasticity is allowed if "cause" (meaning "good cause," Merrimack Park Recreation Ass'n, Inc. v. County Board of Appeals, 228 Md. 184, 188, 179 A.2d 345) is shown. We accordingly hold that the time requirement of Rule B9 is not mandatory, and we think that it was within Judge Turnbull's discretion to refuse to strike out the answer of the protestants, and we find nothing to indicate any abuse of discretion on his part in so refusing. We deny the motion to dismiss insofar as it is based upon delay in the filing of the appellant's answer in the Circuit Court.

The second ground upon which dismissal is sought is in substance that the properties of the protestants are so remote from the property for which rezoning is sought that the protestants have no standing to maintain this appeal. Though the trial judge made a comment in his opinion to the effect that the protestants' properties were more than two city blocks away from the property for which rezoning was sought and "could hardly be directly affected by any permitted commercial use," no objection to their standing to participate was made in the trial court. The record shows not only that there was evidence before the Board from the protestants that the value of their residential properties would be depreciated by the proposed reclassification, but that there was testimony by the Deputy Director of Planning of the County that in his opinion the proposed extension of commercial zoning would have an impact on the surrounding residential areas and that the commercial area should not be extended in the direction proposed. There was in addition testimony by an experienced real estate broker and developer that, in his opinion, the reclassification of the property in question, at least if followed by the development and use of the property as planned by the applicants' contract purchaser, would eat into the existing residential community and would depreciate and depress the area.

In view of the above evidence we are not prepared to hold that the protestants are without standing to maintain this appeal, as not being ...


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