delivered the opinion of the Court.
The appeal is by protestants below who seek to overturn a decision of Judge Turnbull sitting in the Circuit Court for Baltimore County granting a rezoning from residential use to commercial use that the Deputy Zoning Commissioner and the Board of Appeals had refused to grant on findings that there had been no substantial change in the character of the neighborhood and the site was inappropriate for the intended purpose.
The land involved is on the east side of Reisterstown Road opposite the Owings Mills Elementary School, and on it presently stand three frame dwellings, the owners of which have contracted to sell their properties to a supermarket chain for use as the site of a small shopping center. The appellants are neighboring property owners whose children, in most instances, attend the school. They adduced testimony before the Board as to the serious and potentially dangerous traffic problems that existed (and would be worsened if the zoning were granted), not only on Reisterstown Road generally but at and near the school because of its location on a hill, the shortness of its driveways, the type of its pupils and other factors. The applicants offered contrary expert evidence.
On the question of change — no claim of original error is made — the applicants produced evidence, which is not challenged, that contiguous land to the north and to the
Essentially, if not entirely, the changes relied on to support the requested rezoning for a commercial service area were intensifications of adjacent or surrounding residential uses. The cases have held that this of itself is not enough.
County Commissioners v. Fairwinds,
Appellees moved to dismiss the appeal because John D.
The protestants having prevailed before the Board, the applicants appealed to the Circuit Court. The protestants were all represented before the court by the same lawyer who had represented them before the Board. They did not file the demurrer or answer called for by Maryland Rule B 9 nor seek to intervene. Nevertheless, as the hearing began, Judge Turnbull, relying on
Toomey v. Gomeringer, supra
(and see
Pahl v. County Board of Appeals,
“There is no suggestion made that any prejudice has resulted to the Applicants by reason of the failure of the Protestants formally to intervene. And I therefore hold that Mr. Taylor’s [the lawyer for the protestants before the Board] appearance here this morning acts as an informal petition for leave to intervene on behalf of his clients, and I will treat the matter as if a petition had been filed and permission to intervene had been granted, and I will further treat thematter as if a formal answer had been filed by the Protestants traversing the allegations of the petition of appeal filed by the original applicants in this case. So that that should dispose of the preliminary matter.”
The appellees made no protest or objection to these rulings or their consequences. No challenge was made to the protestants’ standing as aggrieved parties. After Judge Turnbull’s decision in favor of the applicants, Mr. Taylor entered the following appeal:
“Mr. Clerk: Please enter an appeal in the above case to the Court of Appeals of Maryland.
Martin & Taylor
Paul Martin
A. Frederick Taylor
Attorneys for Protestants”
Mr. Taylor’s clients had the right to appeal; they were parties and they were aggrieved by an unfavorable decision,
Town of Somerset v. Board,
There remain before this Court aggrieved individual appellants. Compare
Southland Hills Improvement Ass'n v. Raine,
Order reversed, costs to be paid by appellees.