Two appeals in one record from the Circuit Court for Montgomery County (SHOOK, J.).
The cause was argued before Henderson, Prescott, Horney and Sybert, JJ., and Keating, J., Associate Judge of the Second Judicial Circuit, specially assigned.
KEATING, J., by special assignment, delivered the opinion of the Court.
This is a zoning appeal from the Circuit Court for Montgomery County. Four applications for rezoning were combined in one record by the Council because the four subject properties were situated in the same small area and the facts were common to all of the properties. All properties were previously zoned R-90 (single family residence). Two of the applications were to rezone to R-30 (low density garden-type apartments); one requested C-1 (commercial) rezoning; and the fourth asked for C-0 (office) reclassification. The County Council, sitting as the District Council, after referring the matter to the Planning Commission and getting its report and recommendation based upon its own staff's study, granted rezoning, although the Planning Commission, by a three to two vote had recommended disapproval of all four applications. Three of the protestants (the appellants here) appealed to the Circuit Court for Montgomery County from the Council's action.
The trial court dismissed the petitions of the appellants Philip Marcus and Frank Vrataric, Jr., on the ground that they were not "persons aggrieved" and directed entry of a judgment for costs against them. Under the county code, a right of appeal is given only to those persons who are aggrieved. The trial court then considered appellant John William Molyneaux's appeal on the merits and sustained the Council's ruling.
All three appellants challenge the trial court's action on the grounds that Marcus and Vrataric were, in fact, "persons aggrieved" and that the action of the Council was arbitrary, capricious,
discriminatory, or illegal in that the previous "residential" zoning was presumed to be correct, that no error therein was shown, that no substantial changes in the neighborhood since the previous zoning were shown, and that rezoning would increase rather than diminish traffic congestion.
Considering first the question of the right of appellants Marcus and Vrataric to appeal as "persons aggrieved," we find from the record that Mr. Marcus owns and resides at 2020 Henderson Avenue, Wheaton, which is approximately three-quarters of a mile from the subject properties which are located near the Glenmont Shopping Center on Georgia Avenue where it meets the Layhill Road and the Colesville Road, the latter being an extension of Randolph Road. There is no evidence that his home is within sight of the subject properties nor that the proposed rezoning would have any effect whatever on it except such effect as all other residential properties in the whole Wheaton and Glenmont area of Montgomery County might suffer. Mr. Vrataric owns and resides at 2706 Sheraton Street, Wheaton, which is approximately one-quarter of a mile from the subject properties, and the record shows the same relationship, or lack thereof, between his property and the subject properties as exists with respect to Mr. Marcus. Mr. Molyneaux, however, owns and resides at 2010 Erskine Avenue, Wheaton, which is within one block of the subject properties. This Court, in Pattison v. Corby, 226 Md. 97, where the appellant lived a considerable distance from and out of sight of the subject property, considered the question of who was a "person aggrieved." There, Judge Horney, in pointing out the distinction between suits brought by taxpayers in their status as members of the general public and suits brought by property owners in zoning controversies, had this to say at page 102:
"As to this [right of appeal], the text writers and the cases in this and other jurisdictions are in general agreement that an adjacent owner -- in the sense of being near or close by -- as well as an abutting owner, whose legal rights have been infringed, is an aggrieved person. But the farther a protestant resides from the zoning objected to, the more difficult it is, in the absence
of other pertinent circumstances, to decide whether he has standing to appeal. However, such of the prior Maryland decisions as have dealt with the question of the effect of the nearness or remoteness of reclassified property are in point here and should afford a basis for a decision in this case."
Then, after reviewing a number of prior zoning cases and drawing parallels or distinctions between the distances there involved, it ...