author: Moore, J.,

text:
    MORRIS KANFER v. MONTGOMERY COUNTY COUNCIL et al.
    [No. 332,
    September Term, 1976.]

      Decided May 11, 1977.

      The cause was argued before Morton, Davidson and Moore, JJ.

      John J. Delaney, with whom were Linowes & Blocher on the brief, for appellant.

      Nathan J. Greenbaum, Assistant .County Attorney, with whom were Richard S. McKemon, County Attorney and Alfred H. Carter, Deputy County Attorney on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

This unusual zoning case involves a controversial five-acre enclave located among the 1700 acres comprising Montgomery Village, a Town Sector Zone in Montgomery County. Appellant, Morris Kanfer, received a favorable report and recommendation by the hearing examiner, following an unfavorable report by the Montgomery County Planning Board and its Technical Staff, in connection with his application for a zoning reclassification of the property from R-R (one-half acre) to R-T (Town House). The Montgomery County Council, sitting as a District Council, rejected the recommendations contáined in an exhaustive analysis of the application by the hearing examiner and adopted a resolution denying the rezoning. Mr. Kanfer thereupon appealed to the Circuit Court for Montgomery County and in a Memorandum Opinion and Order filed on March 15, 1976, the action of the District Council was affirmed. From that Order this appeal has been taken. Appellant contends (a) that the record is devoid of any legally sufficient evidence which would render the Council’s denial “fairly debatable” and (b) that the decision of the Council was not in accordance, with legally promulgated procedural requirements. We sustain the first contention and reverse.

I

The facts are essentially undisputed. Historically, the subject property has been in the R-R, or one-half acre zone, since 1958. It was part of a 300-acre dairy farm, the major portion of which was sold to Kettler Bros., Inc., the owners and developers of Montgomery Village, a new town established after the adoption in 1966 of the Town Sector Zone, and consisting of some 1700 acres. The record discloses that the appellant retained this five-acre parcel because of the presence within its boundaries of a well affording pure drinking water for his late wife.

In the Master Plan for Gaithersburg and Vicinity, adopted by the Maryland-National Capital Park and Planning Commission in January 1971, the subject land was recommended for R-90, a one-family, detached, restricted (one-half acre) residential category. Mr. Kanfer did not participate in the hearings in connection with the adoption of the Gaithersburg Master Plan held before the Planning Commission in July, 1968 and before the County Council in September and November, 1970.

Over the years, the developer of Montgomery Village, with required approvals of the Planning Board and the Council, has constructed an extraordinarily attractive town with a mixture of single and multiple family residential classifications, as well as office and shopping amenities, lakes, a golf course, tennis courts and recreational areas. The following improvements abut the Kanfer property.

1) Maryland Place

This is a town house community located immediately north of the subject tract, consisting of 33.6 acres with 270 dwelling units (approximately eight dwelling units per acre) and with an average of 24 persons per acre. The southerly end of this development is approximately 35 feet from the northern boundary of the Kanfer property.

2) Thomas Choice

This is a combination of garden-type apartments and town houses located to the immediate west and north of the subject property consisting of 39 acres and 589 dwelling units (103 town houses and 486 garden apartments). There are between 15.1 and 17.6 dwelling units per acre and a population of between 45 and 53 persons per acre. Thomas Choice is divided into three sections, the first, immediately west of the Kanfer property, consists of 300 apartments; north and west of the first section, there is another area accommodating 186 apartment units, while to the north of the second section there is a development of 103 town houses.

3) Centerway Road

This is an 80-foot divided four-lane arterial highway which the subject property abuts along its southern boundary. The property has approximately 470 feet of frontage along this road. There is a median break opposite its intersection with Thomas Farm Road.

4) Thomas Farm Road

This is a 70-foot arterial roadway along which the eastern part of the subject property has approximately 370 feet of frontage. Thomas Farm Road intersects Centerway Road at the southeastern corner of the property and extends north and west, serving the Maryland Place town house development, from Centerway Road to the southern boundary of the golf course property.

The instant application was filed by the appellant in May 1973, requesting reclassification to either the R-20 (multiple family, medium-density residential) or R-T (town house) zone. (Prior to the hearing before the examiner, the alternative R-20 request was withdrawn.)

In October, 1973 the Montgomery County Planning Board adopted the recommendation of its Technical Staff and recommended denial of the application. The basis for the adverse recommendations were: (a) that the requested rezoning was not in conformity with the 1971 Gaithersburg Master Plan; (b) that the property did not meet the purpose intended for the utilization of the R-T zone; and, (c) although there had been change in the character of the area, such change had been “in strict conformity” with the Master Plan. The Planning Board also cited information provided by one of the opponents to the application, the Montgomery Village Foundation, Inc., and concluded that certain “social implications” militated against the application. These “social” factors related primarily to the recreational and community facilities in the Town Sector Zone which it was believed would “in all probability” not be available to the residents of the Kanfer property for their use.

In early January 1974, a public hearing on the application was held by the hearing examiner for Montgomery County, Stanley D. Abrams. Testimony in support of the application was given by Mr. Kanfer and by a qualified land planner, Werner Kloetzli, Jr. The site plan received in evidence showed a proposed development of 50 town house dwellings (10 units per acre) but the expert’s report and testimony with respect to compatibility, compliance with the purpose clause of the R-T zone, impact on traffic and public utilities and related issues, was premised upon maximum development under R-T zoning, namely 12.5 dwelling units per acre. He defined the “neighborhood” of the subject property, a definition which was thereafter adopted by both the hearing examiner and the District Council.

Appearing in opposition to the application were the Citizens Association of Montgomery Village, the Montgomery Village Foundation, and the residents of the abutting Maryland Place town house community. The former contested the application because of its nonconformity with the Master Plan and its alleged incompatibility with adjacent uses. The members of the Maryland Place town house community were opposed on grounds of alleged overcrowding of school facilities and traffic.

At the conclusion of the hearing, the record was kept open by the examiner for a substantial period to permit inquiries by him to the Planning Board, concerning various aspects of its recommendation. These inquiries were dispatched by the examiner under date of January 10, 1974 and on April 16 following, the Planning Board submitted a lengthy reply. In the course of its communication, the Board made the statement:

“If the subject property had been part of the Town Sector, it would probably have been reasonable to assume that the property would have been developed similarly in nature and density to surrounding development.”

And also:

“The existing density of the Thomas Choice, Maryland Place, and Court of Whetstone facilities are probably closer to the R-T Zone than to the R-90 Zone.”

Thereafter, on June 12, 1974, the examiner inquired in writing of the Planning Board concerning its conclusion that existing school facilities in the Montgomery Village area were overcrowded, another basis for its adverse recommendation. In reply, by letter dated July 2, 1974, the Board conceded that its earlier conclusion with respect to school impact was erroneous and that “the requested R-T zoning would not seriously impact the school at the elementary, junior or senior high school levels, since new schools will be built in the near future and boundary areas are constantly being adjusted.”

Hearing Examiner Abrams filed a comprehensive report on July 22, 1974 recommending approval of the application. In the record extract this report is 28 pages in length and contains a discussion and analysis of the following aspects of the application:

I — Compatibility and Compliance with the Purposes and the Requirements of the R-T Zone (15 pages)

II — The Master Plan (5 pages)

III — The Public Interest (7 pages)

IV — Conclusions and Recommendations

Representative of the extreme thoroughness of the examiner’s report is the following description of the subject property:

“The subject tract is rectangular in shape, approximately five acres in size and located at the intersection of Centerway Road and Thomas Farm Road within Montgomery Village. The property is undeveloped with a 10 to 12 foot high elevation above Centerway Road while sloping towards and approximately level with Thomas Farm Road. As previously indicated the site is an undeveloped island of R-R zoned property surrounded by land developed in the town sector zone as part of Montgomery Village. It is the only area within the circumferential confines of Montgomery Village that is not zoned in the town sector classification. Immediately to the north of the property is the Maryland Place town house development consisting of 276 town house units of a modern two-story variety. The impact of these town house units upon the subject property is somewhat pronounced in view of the fact that the rear of the closest town house units are only 35 feet (or the distance of the units’ back yards) from the subject property without any large intervening open space between the two tracts.
“North of the Maryland Place town house development is the Montgomery Village Golf Course and Country Club. Bordering the Maryland Place town houses to the west is a long, somewhat narrow area encompassing approximately 10 acres between the subject property and the Montgomery Village Golf Course which is utilized as a storm drain swale area. This swale area separates the Maryland Place town houses from the Thomas Choice apartments and another town house development.
“Bordering the western boundary of the subject property is a portion of the Thomas Choice apartment project located on approximately 27 acres of land wherein 300 garden type apartment units (three stories high) have been constructed and occupied with an additional 186 units fronting on Montgomery Village Avenue having received preliminary plan approval from the Montgomery County Planning Board. Directly north of the undeveloped area which has received approval for 186 garden apartment units there are approximately 11 acres of land wherein 103 town house rental units have been constructed. This town house area also borders the southern edge of the Montgomery Village Golf Course. Three-story apartment units also have an impact on this site due to the close proximity of the apartment units to the subject property (approximately 60'), again without significant buffer areas between the units and this property.
“Directly west of the existing Thomas Choice apartment project bordering on the northeast quadrant of Montgomery Village Avenue and Centerway Road there is a large undeveloped area which is proposed for development as a church site. To the west of the church site across Montgomery Village Avenue there exist two service stations which form the northernmost portion of the Montgomery Village Community Shopping Center which houses a variety of convenience and service commercial uses and sizable off-street parking areas. This community commercial facility is approximately one quarter of a mile west of the subject property.
“Directly to the east of the applicant’s tract across Thomas Farm Road is the newly constructed Whetstone Elementary School on approximately 8.8 acres of ground. Also on the east side of Thomas Farm Road is a portion of the dwelling units within the Maryland Place town house community. To the east of the Whetstone Elementary School and also on the north side of Centerway Road is the future site of the proposed Stewartown Junior High School which is physically outside of the confines of Montgomery Village and is currently zoned R-R.
“South of the subject property and immediately across Centerway Road is a part of the Courts of Whetstone residential community containing in this section 65 unusual court houses which resemble detached homes on completely walled lots fronting on parking court areas. The rear yards of these homes abut Centerway Road and face the subject property as well as the Thomas Choice garden apartments. The residents of these homes are somewhat buffered from the effects of traffic on Centerway Road as well as visibility of the subject property and the adjoining garden apartment area by virtue of a sizable earthen mound bordering the southern perimeter of the road which is further improved with large substantial pine trees planted at the top of -this mound area. In addition, the walls which appear to be at least six feet high provide a further sight and sound barrier and insure privacy within each individual unit. These court type houses, while somewhat resembling large town houses, are not attached in a common row fashion but are generally separated by the patio or garden walls surrounding each individual property. To the west of this portion of the Courts of Whetstone community is the Whetstone Professional Center which is an attractive area of two-story professional office buildings sited somewhat below road grade to minimize visual impact.
“To the immediate west of the above described section of the Courts of Whetstone and also fronting on the south side of Centerway Road is the Whetstone Community Recreation Center consisting of several tennis courts, community swimming pool, playground area, club house and parking lot. The Whetstone Community Recreation Center and its facilities are available only to those residents of the Courts of Whetstone as well as the larger Whetstone community of single-family detached homes to the south to approximately the vicinity of the Lake Whetstone. To the east of the Whetstone Community Recreation Center are [sic] an 40 units within the Courts of Whetstone community consisting of the same types of homes, location and layout as described previously.”

With respect to “neighborhood”, the examiner rejected the suggestion of the opponents that the entire 1700-acre Montgomery Village Town Sector constituted the appropriate definition. Instead, he agreed with appellant’s land planning consultant who had defined the neighborhood of the property as an area bordered on the north by the southern perimeter of the Montgomery Village Golf Course, on the west by Montgomery Village Avenue, on the south by the southern boundaries of the Whetstone Professional Center, the Courts of Whetstone, and the Whetstone Community Center, and on the east by the eastern boundary of the proposed Stewartown Junior High School site. (This constitutes generally the areas involved in the examiner’s above quoted description.)

The examiner rejected the contention of the opponents that there were problems of “social implications” involved in connection with the use of recreational facilities by residents of the Kanfer tract and agreed with the applicant that the matter was one of appropriate policing by the private community recreational facilities involved. The ultimate conclusions and recommendations made by the examiner were threefold:

1. “The requested reclassification would result in a form of development compatible with existing and planned land uses in the surrounding area and would comply with the purposes of the R-T Zone as stated in the Zoning Ordinance.
2. “The requested reclassification to the R-T Zone, although not in strict accord with the land use recommendations contained within the Gaithersburg and Vicinity Master Plan, is not antithetical to the purposes of that Plan and would provide a more logical land use proposal considering present and proposed development within the neighborhood than the zoning category currently recommended in the Plan.
3. “The grant of the subject application would not be adverse to the public interest.”

On October 29, 1974, the Council adopted a resolution denying the application. In an opinion which accompanied the resolution, the Council adopted the examiner’s (and appellant’s) definition of “neighborhood” but disagreed with the examiner’s conclusions and recommendations. The Council rested its decision upon the following statements:

(a) the proposed R-T development would cause density increases in the neighborhood not anticipated or planned for at the time of the approval of the surrounding Town Sector Zone;
(b) approval could establish the undesirable precedent of permitting enclaves located within Town Sector neighborhoods to develop at increased densities over that designated and planned for the enclave property;
(c) the application was not in conformity with Gaithersburg and Vicinity Master Plan which recommends the R-90 classification. The population generated by the recommended R-90 development would be compatible with the surrounding Town Sector densities;
(d) The Technical Staff of the Planning Board of the Maryland National Capital Park and Planning Commission recommended denial, and the Council agreed with their recommendations and further agreed that the application would not further the purposes of the R-T zone;
(e) there is a current sewer moratorium in the area and therefore the subject property could not presently be serviced by public sewer;
(f) it appears from the evidence that the senior high school servicing the area is presently overcrowded and that the pupils generated by R-T zoning on the site could be absorbed only when the new schools, then only in the planning stages, were constructed;
(g) the grant of the application would be adverse to the public interest because the public facilities proposed were planned on the basis of the applicable density in the zoning category recommended for properties in the area.

The action of the County Council, sitting as a District Council, was thereafter affirmed by the Circuit Court in a Memorandum Opinion and Order filed on March 11, 1976. In its Memorandum Opinion, the court (McAuliffe, J.) noted that the case involved a request for a reclassification to a “floating” zone and that although the traditional “change-mistake” standard was not applicable, appellant nevertheless had the burden of proving to the District Council that:

“1. The reclassification complied with the express purpose provisions of the [zoning] ordinance [Montgomery County Code, (Sec. 5944)], and
2. The proposed use was compatible with the existing and planned land uses in the surrounding area, and
3. That the proposed reclassification was not adverse to the public interest.”

With respect to these issues, the court observed:

“If the record discloses legally sufficient evidence which generates a fairly debatable issue as to any of the three elements, the decision of the District Council must be sustained for zoning is a legislative, and not a judicial function. Our review of the record convinces us that fairly debatable issues are generated as to at least the first and second elements, and we shall therefore affirm the action of the District Court.
“Plaintiff and the zoning hearing examiner make a very persuasive case for the grant of this application, and we find the evidence of record would certainly have supported such action. Unfortunately for Plaintiff it does not follow that because zoning could lawfully be granted, it must be granted. Nor is it of any significance that this member of the Court may be persuaded that the better course would be to grant the application, for the Court' is not permitted to substitute its judgment for that of the District Council.”

As for the adjacent uses, the court found:

“Clearly, the grant of R-T zoning would be ‘appropriate’ and ‘compatible’ with respect to the neighbors to the north and to the west, for here we find town houses and garden-type apartments. So also, there would appear to be no problem to the east, for here we find an elementary school. We think therefore, that the stumbling block was probably the development to the south, and for the reasons we have stated, we find this to have been a legitimate consideration of the legislative body.” (Emphasis added.)

II

The R-T zone has been held to be a “floating zone” as distinguished from the standard Euclidean zone. The Maryland “change or mistake” rule is inapplicable. Knudsen v. Montgomery County Council, 241 Md. 436, 441, 217 A. 2d 97, 100 (1966). Such a zone is in the nature of a special exception and, as Judge Barnes stated in Aubinoe v. Lewis, 250 Md. 645, 652-53, 244 A. 2d 879 (1968) (speaking of another type of floating zone, namely, R-H):

“the vital and decisive determination by the District Council is whether the application complies with the expressed purposes for which the accomplishment of this floating zone was established. These purposes are designed to insure that this floating zone is compatible with the other existing uses in the general neighborhood of the property for which R-H zoning is sought.”

The purposes for which the R-T zone was established are expressly stated in the Zoning Ordinance, as follows (§ 59-44):

“The purpose of the R-T zone is to provide suitable sites for town houses:
(1) In sections of the county that are designated or appropriate for multiple-family residential development at densities of 12.5 units or more per acre; or
(2) in locations in the county where there is a need for buffer or transitional uses between commercial, industrial, or high density apartment uses and low density single-family uses.” (Emphasis added.)

The objectives of the zone are further explicated in the following language:

“It is the intent of the R-T zone to provide the maximum amount of freedom possible in the design of town houses and their grouping and layout within the areas classified in that zone, to provide in such developments the amenities normally associated with less dense zoning categories, to permit the greatest possible amount of freedom in types of ownership of town houses and town house developments, to prevent detrimental effects to the use or development of adjacent properties or the neighborhood and to promote the health, safety, morals and welfare of the present and future inhabitants of the district and the county as a whole.”

And the Ordinance specifically provides that no presumption is created by virtue of compliance with its requirements:

“The fact that an application for R-T zoning complies with all specific requirements and purposes set forth herein shall not be deemed to create a presumption that the resulting development would be compatible with surrounding land uses and, in itself shall not be sufficient to require the granting of the application.”

On an appeal from the grant or denial by the legislative body of an application for a zoning reclassification, the function of the reviewing court in Maryland is indeed restricted and the “fairly debatable” rule is applicable. Otherwise stated, the appellate court may not substitute its judgment for that of the zoning body and should affirm when the latter’s decision is supported by substantial evidence. Bosley v. Hospital for Consumptives, 246 Md. 197, 204, 227 A. 2d 746, 750 (1967). At the same time the Court of Appeals has consistently ruled that the denial of a zoning application may be reversed by an appellate court when the action appealed from is shown to be “arbitrary, capricious or illegal.” Agneslane, Inc. v. Lucas, 247 Md. 612, 619, 233 A. 2d 757, 761 (1967); County Council v. Gendleman, 227 Md. 491, 498, 177 A. 2d 687, 690 (1962).

On the basis of our review of the record and exhibits in this case, we conclude that the lower court construed the evidence too narrowly. The subject property is completely surrounded by apartments, town houses and arterial roadways. The refusal of the Council to reclassify it from single family, one-half acre residential to the town house classification was indeed arbitrary and capricious.

Before proceeding to a consideration of the reasons assigned by the Council for its action, we observe that the lower court, although apparently of the view that “the better course would be to grant the application,” declined to enter a reversal primarily because the Council found that the development immediately to the south was a “stumbling block.” The court was here referring to the Courts of Whetstone, a rather unique assembly of 65 dwelling units located across Centerway Road, generally opposite the Kanfer tract. While these are detached single family houses, they are located very close together, as described by appellant’s planning expert, “on lots which are not much wider than the houses. They have walled patios away from the court-side of the town houses .... The courts, physically speaking, are driveway areas with parking and garages facing — parking within them and garages facing them. Opposite the courts, the houses all have walled patios surrounding them.”

It is readily apparent that this development is not to be equated with single family residential in the conventional sense. But more fundamentally, the Courts of Whetstone are located across an arterial highway, from the subject property — a natural barrier — and are already confronted by the Thomas Choice garden-type apartments abutting Centerway Road, north and west of the five-acre tract involved in this case. The Thomas Choice apartments have a density of 15.1 to 17.6 dwelling units per acre. Again, as appellant’s land planner correctly pointed out, “the court houses and the garden apartments are approved, compatible uses on opposite sides of the Centerway Road.” We agree with appellant that the Council displayed a total lack of consistency in holding that the R-T development on the subject property would not be compatible with the Courts of Whetstone when adjoining multi-family development has been recognized as compatible. Appellant’s proposal is for lower density town houses (with a maximum density of 12.5 units per acre). We fail to perceive how the Courts of Whetstone could present to the Council a “legitimate and reasonable stumbling block” to the grant of appellant’s application.

With respect to the developments on the same side of Centerway Road and to the north, east and west of the subject property, it is beyond reasonable contention that the proposed R-T reclassification would be wholly compatible with existing and planned development. As the lower court pointed out with respect to these locations:

“Clearly, the grant of R-T zoning would be ‘appropriate’ and ‘compatible’ with respect to the neighbors to the north and to the west, for here we find town houses and garden-type apartments. So also, there would appear to be no problem to the east, for here we find an elementary school.”

We now examine seriatim the statements made by the Council in support of its resolution of denial.

1. Claimed Incompatibility

What has just been stated is, of course, referable to this issue. In addition, we observe that after careful study and consideration of the “neighborhood” involved, the examiner held that the “densities permissible under the R-T zone (are) entirely compatible and appropriate in terms of existing and planned densities within this neighborhood area.. .. The subject application would permit densities either in terms of dwelling units or population which squarely fit between the densities experienced in the two abutting communities and overall density experienced north of Centerway and east of Montgomery Village Avenue.” The Council’s only basis for rejecting this finding was its conclusory statement that the proposed R-T development was not compatible in that it would cause density increases in the neighborhood “not anticipated or planned for at the time of the approval of the surrounding Town Sector zoning”; and its expressed apprehension that a grant of the application would establish an “undesirable precedent.”

The hearing examiner made a finding — which we consider fully supported — that the density effect of the proposed reclassification would be “minute.” In his language, “What conceivable impact could the additional 20 or 30 persons per acre by virtue of R-T, as opposed to R-90, development have, when considered in the course of and spread throughout the 1700 acre development area in the same fashion that densities are not calculated under the Montgomery Village Town Sector plan?”

In any event, density per se would not be a valid reason for the denial of the application, unless the District Council could reasonably have found that increased density caused adverse impact upon public facilities such as roads, schools and utilities. The record is devoid of evidence reflecting such impact. Accordingly, we conclude that the Council’s findings that the application was not compatible “with surrounding land uses and densities” is an unsupported assertion and is contradicted by overwhelming evidence to the contrary.

2. Gaithersburg Master Plan

The Technical Staff of the Planning Board, the Planning Board itself and the District Council all adverted to the nonconformity of the instant application with the Gaithersburg and Vicinity Master Plan of 1971, recommending the R-90 zone category for the Kanfer property. The lower court also made reference to this aspect of the case and observed that while this fact alone might not have been sufficient to deny, the Council was at liberty to consider it together with other “relevant factors in reaching its ultimate decision.”

First, we observe that the Technical Staff misstated in a memorandum to the examiner the significance of a Master Plan when it wrote that such a plan is entitled to a “strong presumption of correctness.” As the examiner correctly pointed out in his report and recommendations, the established rule in Maryland is that a Master Plan is at best a “flexible guide” or an “intellectual prophecy” of future development. See Pattey v. Board of County Commissioners, 271 Md. 352, 360, 317 A. 2d 142, 146 (1974); Aspen Hill Venture v. Montgomery County Council, 265 Md. 303, 314-15, 289 A. 2d 303, 309 (1972). Furthermore, in citing the Master Plan recommendation as one of the reasons for its decision, the Council ignored evidence of record which disclosed that subsequent to the adoption of the Master Plan in January 1971 by the Planning Board, that Board approved record plats on abutting properties permitting apartments and town houses within 53 feet and 35 feet, respectively, of the subject property — and with no buffers in between. Again, the Planning Board, as previously pointed out, felt compelled to acknowledge subsequent to the hearing that the density of existing, abutting uses was “probably closer to the R-T zone than to the R-90 zone,” and that had the subject property been part of the surrounding Town Sector it would be “reasonable to assume” that it would have been developed “similarly in nature and density to surrounding development.” In our judgment, of greater relevance than the fact of nonconformity with the Master Plan was the question whether the R-90 designation was a reasonable and suitable proposed land use in the light of facts and circumstances known to the Council at the time of its consideration of the application on October 29,1974.

Two final considerations remain with respect to the Master Plan issue. First, the fact that appellant did not appear in opposition to the proposed Master Plan at hearings before the Planning Board and the Council, is irrelevant. Mr. Kanfer testified that he was unaware of the pendency of the proposed plan. There is no evidence that as a property owner he received notice of any hearings and no such claim is made by the County Council in this case. See Schroeder v. City of New York, 371 U. S. 208 (1962). At all events, however, we know of no authority for the position that participation either for or against a proposed master plan by an interested property owner should have any effect upon a subsequent application for reclassification of his property. Finally, in weighing the validity of the recommendation of the 1971 Master Plan, it should be noted that appellant may not, under the provisions of the Zoning Ordinance, legally apply for Town Sector zoning. Section 59-63 (e) permits only the original applicant for Town Sector zoning or a successor in title to add to an existing Town Sector.

3. Adverse Recommendations of Technical Staff and Planning Board

It is fundamental that reports and recommendations of governmental planning agencies are neither “inviolate” nor “invulnerable.” Habliston v. City of Salisbury, 258 Md. 350, 361, 265 A. 2d 885, 891 (1970). As the Court of Appeals there noted, such reports are subject to the same analysis and appraisal as other types of evidence in order to have probative force. Here, the County Council relied upon the Board’s report and recommendations, citing overcrowded conditions in junior and senior high schools in the area as a basis for denial. The record clearly shows, however, that although the Board initially made this finding, upon further consideration of the matter, subsequent to the hearing, in answer to further inquiries from the hearing examiner, the Technical Staff withdrew from its previous position and conceded that the requested rezoning would not “seriously impact” schools at the elementary, junior or senior high school levels because new schools would be built and school boundary areas are “constantly being adjusted.”

The adverse recommendation of the Planning Board based upon “social implications” also indicates that the report falls short of accepted standards. This aspect of the report resulted from claims of opponents to the application — residents of Montgomery Village — that certain of the recreational facilities are limited to Town Sector residents. Problems would result, it was claimed, if town house owners and their families on the subject property attempted to use such facilities. As the hearing examiner correctly held, these so-called “social implications” should have claimed no part of the Board’s report. At all events, the report inconsistently overlooked that nonmembers would also be generated if the subject tract were improved in the recommended R-90 zoning category.

4. Purposes of the R-T Zone

In its opinion and resolution of denial the Council accepted and followed the unsupported conclusion of the Planning Board that the application “would not further the purposes of the R-T zone.” These purposes have earlier been quoted. At the hearing, appellant’s land planning expert testified that principal reliance was placed upon Section 59-44 (1) — that the purpose of R-T zoning is to provide suitable sites for town houses in “sections of the county that are designated or appropriate for multiple family residential development at densities of 12.5 units or more per acre”; and that, of course, in the instant case the subject property while not “designated” was “appropriate” for such development. In sharp contrast to the bald assertion made by the Council in its resolution is the careful and painstaking examination by the hearing examiner of the types of development together with their densities of the areas abutting and surrounding the subject property. The Council’s finding that the application would not further the purposes of the R-T zone is totally unsupported. The appropriateness of the proposed reclassification, in the light of existing surrounding uses, is very plain.

5. Sewer Moratorium

Another stated basis for the Council’s denial of the requested rezoning was that “there is a current sewer moratorium in this area, and the subject property cannot be presently serviced by public sewer.”

The uncontroverted evidence before the examiner was that existing sewer and water lines service the Thomas Choice, Maryland Place and Courts of Whetstone communities surrounding the tract, as well as the Whetstone elementary school. The examiner went on to state:

“The property is situated in the Seneca Drainage Basin which is under both Washington Suburban Sanitary Commission and State Health Department sewer moratoriums. The Sanitary Commission reports that there is no sewer capacity available in the Seneca Basin at this time and no sewer connection could be provided to the site until such moratoria were lifted. The subject property however is in Sewer Service Category I in the Montgomery County Ten-Year Sewer Plan. The Sanitary Commission projects that maximum theoretical development of this tract in the R-T Zone would increase sewage flow in the drainage basin by some 25,750 gallons per day. However, as previously stated, there is no evidence from the Sanitary Commission or any other source to indicate that the sewer lines in the immediate area are either overcapacity [sic] or defective and would present some immediate health hazard. Likewise, it cannot be contended that rezoning at this time would be premature on the basis of the lack of available public sewer or water lines in the immediate vicinity, since such lines presently serve all existing development surrounding this property.” (Emphasis added.)

Clearly, the facts here do not present a case where rezoning would necessitate extension of sewage and other public facilities into altogether undeveloped areas. This is not a case where denial of rezoning might be justified on grounds of public expense. See Gorin v. Board of County Commissioners, 244 Md. 106, 111, 223 A. 2d 237 (1966). Furthermore, occupancy of homes developed from the appellant’s property would be as much as two years subsequent to the issuance of permits and the county, of course, is in a position to control development by withholding permits pending the temporary sewer moratorium.

Finding, as we do, that the fairly debatable rule is not applicable under the facts of record in this case and that the Council’s action was arbitrary and capricious, it is unnecessary to consider appellant’s further argument that the Council failed to comply with the requirements of Section 59-207 (a), Montgomery County Code 1972, and that it improperly acceded to a plebiscite in denying the application.

Order reversed; case remanded to the Circuit Court for Montgomery County for remand to District Council for adoption of a resolution granting application § F-914 for amendment to zoning ordinance map; appellee, Montgomery County Council, to pay the costs.

      . Montgomery County Code, § 59-63 (1972).

      . The R-20 alternative request had not at that point been withdrawn.

      . The Planning Board qualified the above admissions by referring to development densities at more remote locations throughout the 1,767 acres of Montgomery Village, which are outside of the relevant “neighborhood” as defined by the Examiner and Council.

      . The examiner’s footnotes are omitted.

      . See Beall v. Montgomery County Council, 240 Md. 77, 90, 212 A. 2d 751, 758 (1965) where the court cited the article of Professor Reno of the University of Maryland School of Law, 23 Md.L.Rev. 105, entitled “Non-Euclidean: The Use of the Floating Zone.” As the court observed, the author points out that the floating zone is a “new concept” in zoning and “frees the legislative body from the shackles of the conventional Euclidean zone” fixed as to definite areas. Id.

      . Appellant also contends, with some persuasiveness, that he is between a “rock and a hard place” in that the Maryland “change-mistake” rule would even seem to preclude a successful application for the R-90 zoning recommended in the Master Plan.

      . Appellant met this contention at the public hearing on the application by the introduction of evidence disclosing that a number of golf and swimming facilities existed in Montgomery Village which are not limited to members of Citizens’ Associations and that school sites in the area afford recreational facilities for both members and nonmembers alike.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    ANTOINETTE JULIANO et al. v. JAMES F. JULIANO
    [No. 351,
    September Term, 1976.]

      Decided May 11, 1977.

    The cause was argued before Thompson, Powers and Lowe, JJ.

      John C. Sullivan and Earl E. Manges for appellants.

      Gary G. Leasure for appellee.
   Powers, J.,

delivered the opinion of the Court.

This intrafamilial suit was brought in the Circuit Court for Allegany County by three siblings, Antoinette Juliano, Mary T. Juliano, and Lawrence A. Juliano, against their brother, James F. Juliano. The case was instituted by the filing, in equity, of a pleading entitled, “Bill of Complaint Praying Jurisdiction Of Trust And Accounting”.

The complaint alleged that the parties were children of Guiseppi Guiliano, who died on 18 June 1970, predeceased by his wife. It alleged that in July 1967, the father established a verbal trust of his property, with James as Trustee, and the five children as beneficiaries. The complaint set out the father’s real estate in Cumberland which made up the trust estate: 302 South Cedar Street (title held jointly with Mary); 411-13 South Cedar Street; and a lot on West Third Street, all of which were sold, allegedly by James, as Trustee, in 1967 and 1968, for prices aggregating $20,750. It was alleged also that rental income and social security income were received in the amount of $4,400.

Terms of the verbal trust as alleged in the complaint included the distribution to be made at the father’s death. It was alleged that the three daughters were to share equally in the proceeds of sale of the property at 411-13 South Cedar Street; that Mary Juliano was to receive the proceeds of sale of the jointly owned property at 302 South Cedar Street; and the remainder of the corpus was to be divided equally among the five children.

The complaint prayed that the court assume jurisdiction over the stated Trust; order James F. Juliano to make an account of the Trust funds; order James to make distribution to the benficiaries according to the terms of the Trust; and for general relief.

Included in the same bill of complaint was an unrelated cause of action, asserted by two of the plaintiffs, Mary and Lawrence, against James, arising out of their service as employees in a store owned and operated by James. The prayer related to that claim was for a declaratory decree as to the amount due each of them from James.

The two aspects of the case were, of necessity, handled separately by the Chancellor below, and we shall discuss them separately here. When the complaint was dismissed, as to each of its two aspects, the plaintiffs appealed.

The Trust

James Juliano filed an answer to the complaint, in which he denied that there was a trust, and that he was a trustee. He denied also that the net proceeds of the sales of real estate were in the amounts alleged, and said that he stood ready to prove the disposition of the proceeds. He admitted that his father had, in 1967, executed a power of attorney to him, but denied that the properties were sold by him under a power of attorney.

The answer also asserted that the alleged trusts were oral, and involved real property or the proceeds of sale of real property, with no writing or memorandum manifesting the same, and are unenforceable under the Statute of Frauds. In addition, the answer stated that if there was a trust to be distributed at the death of the father, the plaintiffs were guilty of laches because their bill of complaint was filed well over three years later.

Thereafter James Juliano filed a motion, under Maryland Rule 502, for a separate trial of issues of law raised by the defenses of the Statute of Frauds, and laches. The court signed an order directing a separate trial on those issues, and postponing the remaining issues to a later date to be fixed by the court.

The separate trial was held on 30 June 1975, before Judge Stuart F. Hamill, sitting as the Circuit Court for Allegany County. The trial consisted almost entirely of statements or explanations by counsel of their respective contentions, and references to the law. No evidence was offered. The basic facts appear to have been accepted to be as alleged, for the purpose of the issues then before the court.

Appellants’ counsel requested and was granted two weeks in which to prepare and file a memorandum.

Judge Hamill filed a written' Opinion on 22 July 1975, and an Order dismissing the bill of complaint. Obviously realizing that he had overlooked the other aspect of the case, the Chancellor, exercising his revisory power under Maryland Rule 625, filed a Revised Opinion on 11 August 1975, accompanied by an Order in which he dismissed the claims based on the alleged oral trust set forth in the bill of complaint. He further ordered that the case be set for trial on the issues based upon the alleged employment contracts.

Briefly summarized, the lower court held that the alleged express oral trust, being a trust respecting land, was void under Code, Real Prop. Art., § 5-105, which says:

“Except as provided in § 5-107, every declaration of trust, or amendment to it, respecting land shall be manifested and proved by a writing signed by the party who by law is enabled to declare the trust, or by his last will in writing, or else it is void.”

The court also stated it as the law that the inhibitions of the statute apply with equal force to alleged trusts involving the proceeds from the sale of real property.

No doubt because of the exception referred to in § 5-105, the court aptly explained in the Revised Opinion:

“It should be noted that by the terms of Code, Real Property, Section 5-107, implied trusts, namely resulting and constructive trusts, are removed from the operation of the Statute of Frauds. However, the Bill of Complaint does not assert that the alleged transaction by and between Guiseppi Guiliano and the respondent constituted either a resulting or constructive trust, nor does their Bill of Complaint assert a basis for the imposition of either form of implied trust.”

The Chancellor said that if there was an express trust, it terminated upon the death of the father, which was on 18 June 1970. The bill of complaint was filed on 3 January 1974, more than three and one half years later. Applying the statute of limitations of three years applicable at law, the Chancellor held that the plaintiffs were barred by the equitable doctrine of laches from asserting the trust claim. The court noted that laches would also bar a claim for a constructive or resulting trust.

The Statute of Frauds

The most important, as well as most difficult, question we must decide is whether the alleged express oral trust is void, under Real Prop. Art., § 5-105. Generally, the law of trusts in Maryland is that the Statute of Frauds does not require a writing except where the subject matter of the trust is an interest in land. Dove v. White, 211 Md. 228, 126 A. 2d 835 (1956); Grimes v. Grimes, 184 Md. 59, 40 A. 2d 58 (1945); O’Connor v. Estevez, 182 Md. 541, 35 A. 2d 148 (1943); Mushaw v. Mushaw, 183 Md. 511, 39 A. 2d 465 (1944). Yet, where the subject matter of the trust is both land and the proceeds from the sale of the land, the question of whether the Statute of Frauds applies to the proceeds is not as clear. The answer hinges on whether the proceeds of the sale of the land are considered personalty or whether the money is deemed to be an extension of the land itself making the entire oral trust unenforceable. G. Bogert, Trusts and Trustees, § 66, at 441 (2d ed. 1965); I A. Scott, Law of Trusts, § 52.1, at 379-81 (3d ed. & Supp. 1977).

It is clear that where the parties allege that the oral trust covered only the realty and did not mention the possibility of a sale of the land, “no contention [may be made] that the trust can be enforced against the holder of the proceeds of a sale of the land.” G. Bogert, supra, § 66, at 441. The holder’s situation is tantamount to his still possessing the land since there is no assertion that a separate trust was intended to cover the proceeds. The trust is unenforceable because the requirements of the Statute of Frauds for a trust involving land “extend to all substitutes for the original res, either real or personalty.” Id. at 441-42.

However, in the cases where the oral trust articulated both a present trust in the land and a future trust in the proceeds from the sale of the land, and in fact a sale occurred resulting in the trustee holding the proceeds, the courts and authorities are split as to whether an enforceable trust exists with respect to the proceeds.

Most of the states which have ruled on the question consider the two trusts severable and, therefore, their enforceability must be viewed separately. As long as the trust concerns the actual land, it is unenforceable unless the trust is established in writing. I A. Scott, supra, at 379. Once the land is sold then the trust involves personalty and no longer must meet the requirements of the Statute of Frauds. The trustee is deemed “to have ‘abandoned the shelter’ of the Statute by selling the land.” G. Bogert, supra, § 66, at 442-44.

The rationale for this view is that the oral trust is not enforceable as long as the res of the trust is land, since the law, as manifested by the Statute of Frauds, is drafted to-prevent the enforceability of oral trusts involving only land. Once the land is converted into personalty it would be an injustice to expand the protection of the statute since the trust no longer involves land but rather the res is personalty. Id. at 444.

Advocating this position, Professor Bogert states:

“On principle it would seem that the oral agreement in the case assumed had two parts — a present trust of land and a promise to hold in trust personal property if and when acquired. The enforcement of the real property trust is not in question because no land is now held. The personal property which it was promised would be held in trust has now been acquired by the promisor.” Id. at 445.

Moreover, in his treatise, Law of Trusts, Professor Scott writes:

“By the weight of authority it is held that in this situation the undertaking of the trustee is severable; that insofar as his undertaking relates to the land itself it is unenforceable because of the failure to comply with the Statute of Frauds; but that insofar as his undertaking relates to the proceeds it is not within the Statute of Frauds and is enforceable.” I A. Scott, supra, at 379-80.

If what the text writers appear to consider the weight of authority were the law in Maryland, the alleged oral trust in the proceeds of sale of real estate would, if proved, be enforceable. The appellants alleged an oral agreement in which the appellee agreed to hold in trust their father’s land, convert the land into cash, and, at Mr. Guiliano’s death, distribute the corpus to the beneficiaries. In essence, the appellants in their bill of complaint raised two separate trusts =- the real property trust and the trust involving the proceeds of the sale of the land. The oral trust for the land, of course, is void. However, once the appellee sold the land, he would become liable on his promise to hold in trust the proceeds of the sale — the second trust. That is; when the' trust no longer involved land, the Statute of Frauds would . not apply.

However, these views have not been expressed or accepted as the law in Maryland. As stated earlier* the courts are divided on the enforceability of trusts involving proceeds from the sale of land. While some courts have enforced the trust of the proceeds, others have not, construing the Statute of Frauds “to mean that the original character of the trust res determines whether the trust is within the statute, and that an express promise to hold all substitutes for the original in trust is of no effect.” G. Bogert, swpra, § 66, at 445. The law implies a duty to hold the successor property in trust, and whether the trust in the substitute property is enforceable or unenforceable turns on whether the trust in the original property was binding or voidable. Id. This appears to be the view of the law adopted by the Court of Appeals of Maryland.

Messick v. Pennell, 182 Md. 531, 35 A. 2d 143 (1943), involved a situation quite similar in one aspect to the present case. In that case, George E. Hardman, a few months before he died in 1941, deeded his 86 acre farm to his daughter, Rhoda, who later became Mrs. Pennell. Rhoda had remained on the farm with her parents, while the other children, three sisters and two brothers, left home and sought their own careers. After their father died the other children became aware of the transfer of the farm to Rhoda. The three sisters brought suit against Mrs. Pennell and her husband. They alleged the land was conveyed to Mrs. Pennell by their father in order to avoid the necessity of making a will and in order that the property might be sold and the proceeds distributed among the surviving children. In essence, the complainants contended that the deed in reality created Mrs. Pennell a trustee for the land and the proceeds from its sale.

The Court of Appeals in Messick affirmed the decree below, rejecting the contention that a trust was created, and said, at 536:

“At the outset it may be observed that the bill in this case does not allege that the deed was procured by fraud, undue influence, or in any manner that is unlawful. The charge is that it was conveyed to the grantee ‘in order to avoid the necessity of making a will and in order that the property might be sold and the proceeds distributed among the surviving children.’ There is no written paper of any kind or description signed by the grantor evidencing such an intention. In this state of the record the case falls directly within the seventh section of the Statute of Frauds, which provides: ‘all Declarations or Creations of Trusts and Confidence of any Lands, Tenements, or Hereditaments, shall be manifested and proved by some Writing signed by the Party who is by Law enabled to declare such Trust, or by his last Will in Writing, or else they shall be utterly void and of none Effect.’ ”

The Court cited Jacobs v. Schwartz, 179 Md. 605, 20 A. 2d 489 (1941), and quoted from page 608, where the Court had said:

“In our opinion the evidence here is of an express trust, proved only by oral testimony, not evidenced by writing in accordance with Section VII of the Statute of Frauds. * * * the decree appealed from should be affirmed.”

It is true that in Messick the land had not been sold, so that the Court was concerned only with an alleged oral trust in land. If there was a trust at all, it had not yet become a trust in the proceeds of the sale of land. But the Court did not recognize even the possibility of a later and separate trust in the proceeds of sale, which might be governed by a different rule of law. It took the allegations of the appellants as asserting only one trust. The Court said, at 537:

“The testimony, therefore, of verbal declarations after the grant by the grantor in his lifetime, that he intended this property conveyed by deed absolute in form to be sold by the grantee and the proceeds distributed among his children is a verbal declaration of trust and this testimony should not have been received in evidence. It is unnecessary to refer to other authorities as the law is determined in this State that an express trust must be evidenced by writing in accordance with the seventh section of the Statute of Frauds * *

It follows that if an express oral trust involving land is void, then an alleged trust or promise involving the proceeds of the sale of the land is also void. Such a result follows even more clearly from the decision of the Court of Appeals in Kidd v. Carson, 33 Md. 37 (1870). In that case one member of the Kidd family had deeded certain land to Carson and Rowland, for a stated price, which was paid. Some years later, Carson’s executors and Rowland sought to enforce a separate indebtedness, owed by the Kidd family. By way of defense, it was alleged that the deed was subject to an agreement that profits on resales of parts of the land would be credited to the family debt. The agreement had been reduced to writing, but had not been signed. It was stipulated that there had been substantial profits on resales.

The Court said, at 42:

“We have no doubt from reading the record that such an agreement was made, and that profits have been realized by them upon the purchase. But the agreement rests entirely in parol, and was not reduced to any writing signed or acknowledged by the parties. To enforce it would be to change the character of the deed, which had been drawn and executed as the parties intended it, and ‘to set up a conventional trust on the foundation of a special parol agreement.’ This cannot be done. It would be in plain and direct violation of the statute of frauds, which provides that all declarations or creations of trust or confidences of any land shall be utterly void, unless manifested and proved by some writing signed by the party who is by law enabled to declare such trust.”

Clearly, the Court applied the Statute of Frauds to hold void an alleged oral trust in the proceeds of sale of land, as well as in the land itself. Accordingly, we feel compelled to hold that if there was an express oral trust in the real estate of Guiseppi Guiliano and in the proceeds of the sale of that real estate, as alleged, the trust was void, and the Chancellor correctly dismissed the claims in the bill of complaint that were based upon the alleged oral trust.

The Doctrine of Laches

Appellants argue as a separate point in their brief that, “The lower court erred in summarily dismissing on the basis of laches the appellants’ claim that a constructive trust should be imposed.” There are two fallacies in that argument. One is that the appellants did not claim that James Juliano was a constructive trustee, nor did they ask the court to impose a constructive trust. On the contrary, they alleged, in quite specific terms, an express trust, albeit oral, and asked the court to take jurisdiction of that trust, and require an accounting and distribution. There was no allegation in the bill of complaint that even suggested fraud, deception, undue influence, or any other wrongdoing by James.

The second fallacy, which arises from the first, is that the Chancellor did not dismiss a constructive trust claim on the ground of laches.

In his Revised Opinion, the Chancellor discussed each of the two issues of law upon which a separate trial had been ordered. He first ruled that under the Statute of Frauds the alleged express oral trust was, as a matter of law, unenforceable and of no effect. He next considered the other issue before him, laches. He held, correctly we believe, that an action to recover trust property must be instituted within the time prescribed by the statute of limitations which would be applicable at law, and that the period began to run when the trust was terminated with the father’s death on 18 June 1970. He pointed to the delay of 3V2 years in bringing the suit, and held that the claim of an alleged oral trust was barred by laches, as well as by the Statute of Frauds.

The rule which the Chancellor applied was stated by the Court of Appeals in Stevens v. Bennett, 234 Md. 348, 199 A. 2d 221 (1964), where the Court said, at 351:

“The authorities indicate that even when the remedy for a claimed right is only in equity the period of limitations most nearly apposite at law will be invoked by an equity court, provided there is not present a more compelling equitable reason — such as fraud or other inequitable conduct which would cause injustice if the bar were interposed — why the action should not be barred. [Citations omitted] * * * Judge Henderson, for the Court, said in Berman v. Leckner, 188 Md. 321, 328: ‘There is no doubt that limitations will apply by analogy, to proceedings in equity as well as to actions at law, particularly where the jurisdiction is concurrent.’ ”

Citing Stevens v. Bennett, supra, and other cases, the Court of Appeals, in Hall v. Barlow Corporation, 255 Md. 28, 255 A. 2d 873 (1969), said, at 41-42:

“These defenses [limitations and laches] may be raised by demurrer to a bill of complaint when they appear upon the face of the bill of complaint that these defenses are a bar and generally the statute applicable to actions at law will be followed by analogy by the equity courts.”

See also Bowie v. Ford, 269 Md. 111, 304 A. 2d 803 (1973).

Perhaps because the Statute of Frauds expressly removes implied trusts from its bar, the Chancellor commented that the “doctrine [of laches] applies with equal force to claims for constructive or resulting trusts wherein the action is instituted more than three years after repudiation.”

Although we have decided that the Statute of Frauds bars the claim that James holds the proceeds of sale of the father’s real estate under an express oral trust, we also decide that the same claim is barred as well by laches, applying the analogous three year period of limitations.

In addition we decide that laches or limitations bars any right against James concerning the rent and social security payments alleged to have been received by him as trustee, in the total amount of $4,400.

The Employment Contract

After having disposed of the trust aspect of the bill of complaint, the Chancellor scheduled and held a full scale trial on what was essentially a breach of contract suit.

Lawrence and Mary Juliano claimed that each had worked for their brother, James Juliano, in Jimmie’s Self-Service Market, which James owned and operated in Cumberland. Lawrence worked in the store for about 15 years, beginning in 1958, and Mary worked for about six years, beginning in 1966. Each claimed that James agreed to pay the minimum wage, but actually paid less. Each also claimed that in addition to the agreement to pay wages, James agreed to pay a bonus ($15,000. to Lawrence and $10,000. to Mary) upon either the termination of the employment, or when the State of Maryland took James’s property in a pending condemnation case.

Evidence on the significant issues was conflicting, to say the least. Credibility of the witnesses, and the weight of the evidence, had to be determined by the Chancellor, as the trier of the facts.

Rejecting some of the contentions of the appellants as not credible, the Chancellor held that they had wholly failed to carry their burden of proving the alleged oral contract, and dismissed the claim. His judgment on the facts was not clearly erroneous. Maryland Rule 1086.

Judgment affirmed.

Appellants to pay costs.

      . One other child, a daughter, was not a party to the case. All of the children have changed the spelling of the family name.

      . There is no showing in the case of any instance in which James exercised his authority as attorney-in-fact.

      . Alabama: Finch v. York, 294 Ala. 382, 318 So. 2d 249 (1975); Westcott v. Sharp, 256 Ala. 418, 54 So. 2d 758 (1951); Willard v. Sturkie, 213 Ala. 609, 105 So. 800 (1925). Illinois: Ramsay v. Ramsay, 10 Ill. App. 2d 459, 135 N.E.2d 172 (1956). Kansas: Grantham v. Conner, 97 Kan. 150, 154 P. 246 (1916). Michigan: Glieberman v. Fine, 248 Mich. 8, 226 N. W. 669 (1929). Minnesota: Wolford v. Farnham, 44 Minn. 159, 46 N. W. 295 (1890). Nebraska: Marvel v. Marvel, 70 Neb. 498, 97 N. W. 640 (1903). New Mexico: Vehn v. Bergman, 57 N. M. 351, 258 P. 2d 734 (1953). Oregon: Johnson v. McKenzie, 80 Ore. 160, 154 P. 885 (1916); Johnson v. McKenzie, 80 Ore. 160, 156 P. 791 (1916). Rhode Island: Lawrence v. Andrews, 84 R. I. 133, 122 A. 2d 132 (1956). Washington: Dowgialla v. Knevage, 48 Wash. 2d 326, 294 P. 2d 393 (1956).

      . A contract theory has also been advanced to support the enforceability of an oral trust involving the proceeds of the sale of land. Where “the agreement to hold the personalty in trust was made upon consideration, equity ought to treat the holder of the personalty as a trustee of it from the moment of its acquisition by him. If the promise to hold the personalty in trust in the future was voluntary, then equity ought to refuse to compel the promisor to perform, and the mere acquisition of the personalty by the promisor should not be important.” G, Bogert, supra, § 66, at 445.
      Moreover, the Restatement of Trusts states that where a land owner transfers land on an oral trust to pay the proceeds of its sale to another person, once the land is sold, “there is a valid contract to hold the proceeds in trust. ^The transfer of land is consideration for the promise to hold the proceeds in trust and the contract is not required by the Statute of Frauds to be in writing since the proceeds of the sale of the land is merely personalty. Restatement (Second) of Trusts, § fig, Comment g (1959).

      . Note 3, supra.

      . Indiana: Mills v. Thomas, 194 Ind. 648, 144 N. E. 412 (1924); Thomas v. Merry, 113 Ind. 83, 15 N. E. 244 (1888). Massachusetts: Simpson v. Henry N. Clark Co., 316 Mass. 118, 55 N.E.2d 10 (1944); Chace v. Gardner, 228 Mass. 533, 117 N. E. 841 (1917); Morris v. Morris, Mass. App. Ct., 327 N.E.2d 917 (1975). New York: Foreman v. Foreman. 251 N. Y. 237, 167 N. E. 428 (1929); Bork v. Martin, 132 N. Y. 280, 30 N. E. 584 (1892). North Carolina: Hodges v. Hodges, 256 N. C. 536, 124 S.E.2d 524 (1962), citing Restatement (Second) of Trusts, § 52, Comment g (1959); Schmidt v. Bryant, 251 N. C. 838, 112 S.E.2d 262 (1960).

      . This aspect of the alleged trust was not mentioned as a separate item in the Revised Opinion below, nor is it even referred to in the brief or argument of any of the parties here, even though it stands on a different footing from a trust of land, or proceeds of sale of land.


text:
    HENRY M. BLANDING v. J. H. ANDREWS AND SONS et al.
    [No. 413,
    September Term, 1976.]

      Decided May 12, 1977.

    The cause was argued before Gilbert, C. J., and Powers and Mason, JJ.

      Aim G, Itormt® for appellant,

      Theodore B. Combiatt, with whom wore Alfred M, Forth and Smith, Somerville & Case on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

In this ease we consider the several apportionment and waiver provisions found in the Workmen’s Compensation Law.

Henry M. Blanding, the appellant here, was employed in September 1969 by Bethlehem Steel Corporation. On 21 November 1969 he sustained an injury to his right eye. His compensation claim, supported by proof of a disability rated as loss of 36% of the vision of his right eye, was disputed, but was settled.

On 24 December 1971, while Blanding was employed by J, H. Andrews & Sons, appellee here, he was involved in a fight with a fellow employee at a Christmas party. Blanding’s right eye was injured, and a few days later it was surgically removed. He filed a compensation claim, under which the Workmen’s Compensation Commission ultimately entered an order, on 15 July 1975, which included a finding

“ * * * that the claimant sustained a permanent partial disability resulting in 100% loss of vision in his right eye, 64% of such disability is reasonably attributable to the aforesaid accidental injury, and 36% thereof is due to a pre-existing condition.”

The Commission ordered the payment of compensation accordingly. Blanding appealed. The Superior Court of Baltimore City affirmed. Blanding appealed to this Court.

Appellant’s contention, which we restate for him, is that he is entitled to the full scheduled amount of compensation for the loss of an eye, because apportionment does not apply when the second injury would have resulted in 100% loss of vision of the eye, irrespective of the first injury. He not only points out that his ultimate permanent disability would have been the same, even without the preexisting infirmity, but he suggests that there could be no apportionment unless the previous infirmity caused the second injury, or caused its result to be greater.

We shall refer to the three apportionment provisions in the compensation law, to show what their application to this case may be, and to the two waiver provisions, to show that no waiver, as a precondition to apportionment, was required in this case.

Code, Art. 101, § 86 (7) says, in part:

“Whenever it shall appear that any permanent disability from which an employee is suffering following an accidental injury, is due in part to such injury, and in part to a preexisting disease or infirmity, the Commission shall determine the proportion of such disability which is reasonably attributable to the injury and the proportion thereof which is reasonably attributable to the preexisting disease or infirmity, and such employee shall be entitled to compensation for that proportion of his disability which is reasonably attributable solely to the accident and shall not be entitled to compensation for that proportion of his disability which is reasonably attributable to the preexisting disease or infirmity.”

Another apportionment provision, clearly not applicable here, is found in Art. 101, § 66 (1). It is of limited application, and is concerned with apportionment only as between the claimant’s employer and the Subsequent Injury Fund of the total compensation allowable for death or a presently existing disability of greater than 50% of the body as a whole. It is not concerned, as is § 36 (7), with apportionment of a presently existing disability between that part which is compensable and that part which is not compensable. For a recent application of § 66 (1) see Anchor Motor Freight v. Subsequent Injury Fund, 278 Md. 320, 363 A. 2d 505 (1976), aff'g Subsequent Injury Fund v. Compton, 28 Md. App. 526, 346 A. 2d 475 (1975).

The other apportionment provision appears in the law coupled with authorization for a waiver by the employee as to preexisting permanent partial disabilities of the extremities or the eyes. As we shall show later, a number of cases decided under this subsection before 1969 held that when there was no waiver, there was no apportionment, and the entire disability was then compensable. The second paragraph of the subsection, quoted below, was added by Acts of 1969, ch. 721. It requires the Commission to apportion, in the absence of a waiver as well as when there was a waiver. The provision is in Art. 101, § 36 (1) (b). It says:

“Whenever any person who has suffered the loss, or loss of use of a hand, arm, foot, leg or eye, shall enter into a contract of employment, it shall be permissible for the employee to waive in writing, either in the contract of employment, or by a separate written instrument, any right to compensation to which he would be entitled because of the preexisting permanent partial disability, in the event of subsequent accidental injury, and in cases the employee so suffering an additional accidental injury, shall be entitled to the compensation for the disability resulting solely from such additional accidental injury. No such waiver shall be effective unless the preexisting permanent partial disability shall be plainly described therein, nor unless the same be executed by the employee with knowledge of its contents prior to the time of the accident upon which the claim is based.
“In the absence of any waiver of preexisting permanent partial disability, the Commission in determining any case involving a subsequent accidental injury shall apportion and make award only for the permanent disability eaused by the subsequent accidental injury.”

A much broader kind of waiver, not applicable in the present ease, is permitted by Art. 101, § 51, which generally prohibits avoidance of the compensation law, but says, in part:

“ * * * except that an employee who has previously sustained any injury or a partial disability may, by a written contract freely and voluntarily entered into by him and executed in the presence of two subscribing witnesses, waive the benefit of this article as tó any subsequent injury naturally and proximately caused by such previous injury or disability.”

A relationship of proximate cause between the preexisting disability and the current accidental injury would be very material if the defense of Blanding’s employer were based upon a § 51 waiver. There was, of course, no such waiver or defense in/ this case. Except for a § 51 waiver, causal relationship has little significance in compensation law. So long as the disability results from an accidental personal injury arising out of and in the course of employment, and not from the employee’s wilful intention to cause injury, or solely from his intoxication or use of drugs, it makes no difference whether the injury was proximately caused by negligence or fault of the employee, of a fellow employee, of the employer, or of a stranger, or by no negligence or fault at all.

In construing a § 51 (then § 52) waiver as applying only to a proximately caused subsequent injury, the Court of Appeals, speaking through Judge Hammond in Bethlehem Steel Co. v. Ruff, 203 Md. 387, 101 A. 2d 218 (1953), said, at 396-97:

“The meaning which we attribute to Section 52 [now § 51] makes it supplement the protection given an employer by the other waiver provision and the apportionment section and so facilitates the employment of injured or handicapped persons.
“Thus, the pattern of the compensation law becomes plain. If a prospective employee is handicapped, regardless of whether the handicap is because of a named member, or because of infirmity in some other part of the body, the employer can take a waiver under Section 52. If that employee then suffers an accidental injury which is caused solely and directly by his handicap, all benefits of the compensation Article are lost to him, and the employer has not been penalized by employing a partial cripple, no matter what results ensue. If no Section 52 waiver has been taken, or if it is inoperative because the accidental injury was not due directly and solely to the pre-existing condition, the employer is protected by the two sections of the statute construed in Paul v. Glidden Co., [184 Md. 114, 39 A. 2d 544 (1944)]. If the handicap was in any of the five named members, the employer may take the waiver provided for that situation and be responsible in case of later accidental injury only for disability resulting solely from that occurrence. If the handicap is from a disease or infirmity in some other part of the body, the apportionment provision applies, and the employer is responsible only for the disability resulting solely from the accident.”

In arguing that the total loss of the right eye should not be apportioned, under § 36 (7), because the current injury was not due in part to the preexisting infirmity, appellant misunderstands the words used in the statute. It is not the relationship of the current “injury” to the preexisting infirmity which is a prerequisite to apportionment — it is the relationship of the ultimate permanent “disability”, following the current injury, to the preexisting infirmity.

We may find in the cases that “injury” and “disability” appear to be used interchangeably, and in a particular situation the distinction may have no significance. As the Court of Appeals said in Bethlehem Steel Co. v. Ruff, supra, at 394:

“The term injury has been used to convey, and interpreted to have, different meanings in various contexts in the compensation Article. An employee may suffer an industrial accident which definitely injures him but so slightly that he incurs no expense, loses no time and has no after effects. There the injury and the accident would be as one and neither would be the forerunner of disability.”

and said further, at 395:

“Yet the injury and the disability may be separate, both practically and in the contemplation of the law. Article 101 of the Code evidences in many places the recognition that injury and disability are not necessarily or always synonymous and that injury and accident may be and often are used synonymously, with disability following after.”

We must keep the distinction in mind, however, for compensation is not paid for an “injury”, but for “disability”. Code, Art. 101, § 15, says, in part:

“Every employer subject to the provisions of this article, shall pay or provide as required herein compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury * * (Emphasis added).

The “disability” upon which the law first focuses is the ultimate disability which an employee has after the effects of a current accidental injury are felt. At this step, the disability must be related, at least in part, to that injury. The next focus is upon whether the employee had a preexisting disease or infirmity, and, if he did, whether the ultimate, or cumulative, disability is also related to that preexisting infirmity. Whether the current “injury” was or was not related to that infirmity is of no significance.

The current injury clearly caused the loss by the appellant of the remaining 64% vision of his right eye. The preexisting partial loss of 36%-of-that vision was related to the ultimate disability because the two combined to make the loss of the sight of his right eye total. The statute required the Commission to determine the proportions of the disability reasonably attributable to the current injury and the preexisting infirmity.

Although there may be apparent logic to the argument that injury to an eye, serious enough to require its removal, would have resulted in the total loss of even a perfect eye, it is no more persuasive than would be an argument by the owner of a four year old automobile, worth $1,500 and totally destroyed, that if the automobile had been new, his loss would have been $5,000.

The appellant relies principally upon two decisions of the Court of Appeals. They are Kraushar v. Construction Corp., 180 Md. 486, 25 A. 2d 439 (1942), and Cabell Concrete Block Co. v. Yarborough, 192 Md. 360, 64 A. 2d 292 (1949). Kraushar is one of four cases which we prefer to consider together, largely because they tend to show more clearly what the present case is not.

In 1930 the Court of Appeals decided Congoleum Nairn v. Brown, 158 Md. 285, 148 A. 220 (1930). Having become partially disabled by the loss of two fingers of his left hand in 1924, Brown sustained an injury in 1928, in which he lost two fingers and part of a third on his right hand. Almost parenthetically the Court noted that many years before, Brown had lost the lower part of one leg, below the knee, and wore an artificial portion of leg in its place. The Commission had found that Brown suffered only partial disability, based on the current injury, as scheduled in the statute. On appeal, it had been determined by a jury in the lower court that Brown was then totally disabled. The employer appealed.

The Court, noting that, “The act does not contain any provisions explicitly settling the question now considered”, ruled, at 291:

“After weighing the arguments on both sides, this court adopts the construction that the consequences to the particular workman determine the degree of disability, so that if an injury deprives him of all the capacity he has left after a previous accident, that result might be classed as total disability from the injury.”

There was, at that time, no authorization for apportionment or for waiver in the law. Statutory provision for apportionment, now § 36 (7), and for waiver, now § 36 (1) (b), promptly followed that decision. As the Court of Appeals said in Bata Shoe Co. v. Chvojan, 188 Md. 153, 52 A. 2d 105 (1947), at 156-57:

“Both of these provisions were first introduced into the Compensation Law in 1931 (ch. 363, Acts of 1931). It was conceded in argument that they were probably inspired by the decisions of this Court in Dickson Construction & Repair Co. v. Beasley, 146 Md. 568, 126 A. 907, and Congoleum Nairn, Inc. v. Brown, 158 Md. 285, 148 A. 220, 67 A. L. R. 780. In the Beasley case, it was held that recovery could be had for a disease or infection set in motion or aggravated by injury, while in the Brown case it was held that if an injury deprived a claimant of all the capacity he had left after a previous injury, the result should be classed as total disability from the injury.”

Kraushar v. Construction Corp., supra, although not decided until 1942, was the first case to bring before the Court of Appeals the 1931 enactments dealing with apportionment and waiver. It was soon followed by Paul v. Glidden Co., 184 Md. 114, 39 A. 2d 544 (1944), and in 1947 by Bata Shoe, supra, in which the Court observed that its decision was controlled by Paul v. Glidden Co,, supra, which in turn was foreshadowed by Kraushar, supra.

In Kraushar the claimant sustained an injury which required the removal of his right eye, in which, prior to the injury, he had only 5% vision. The Court noted the apportionment and the waiver provisions of the statute, and, stating that there had been no waiver, held that the injured workman was entitled to compensation for the full extent of his ultimate disability, disregarding the preexisting disability or infirmity.

In Paul v. Glidden Co., supra, the employee had previously lost two fingers of his left hand, and had a 40% partial loss of use of the hand. The second injury was to the two remaining fingers, and it was determined that he then had a permanent partial loss of use of the left hand expressed as 45%. The Commission awarded compensation based on the 457b disability of the hand. The lower court reduced the award, giving effect to the preexisting disability. The Court of Appeals reversed the lower court, and reinstated the award of the Commission. The Court discussed both the apportionment and the waiver provisions of the law. It said, at 119-20:

“The waiver provision of Section 48 [now § 36 (1) (b)] applies only to five members of the body: the hand, the arm, the foot, the leg, and the eye. The loss or loss of use of one of these members can be readily detected by a prospective employer, and to protect himself, he can seek a waiver before accepting the employee. This right does not apply to other disabilities which may be due to prior accidents or infirmities. It is reasonable to suppose that the Legislature intended to give an employer an opportunity to protect himself in those cases where the disability was apparent. If he did not, then he would have to pay compensation without respect to pre-existing loss or loss of use. In other cases, where disability due to pre-existing disease or infirmity is not apparent, the employer is protected by the apportioning clause. When the Legislature said that if the waiver was made ‘the employee so suffering an additional accidental injury shall be entitled to the compensation for the disability resulting solely from such additional accidental injury’, [i]t would seem a necessary corollary that if the waiver were not obtained, the employee would be entitled to compensation for his entire disability. There seems to us no difficulty in construing the two sections together in this way. It seems difficult to believe that such a calculation as that made by the Court below was within the contemplation of the members of the General Assembly when the Act was passed. We cannot find that it was, in the absence of a definite direction to that effect.
“Under the circumstances in this case, no waiver having been obtained, the appellant was entitled to be compensated for the loss of use of his hand as it stood after the second accident, which was 45 percent.”

Both the apportionment and the waiver sections of the law were considered by the Court in Bata Shoe, supra. In that case, the employee lost the fingers of his right hand in 1939, and was compensated for loss of use of the hand. After a 1945 injury his disability was 100% loss of use of the right arm. By stipulation 75% was attributable to the current injury and 25% to the preexisting loss of use of the hand. No waiver had been taken by the employer as to the preexisting disability. The Court declined to apply apportionment. Relying on Paul v. Glidden Co., supra, and quoting from Congoleum Nairn v. Brown, supra, the Court said, at 159:

“By a parity of reasoning, we hold that where a second injury results in a total loss of use of an arm, the fact that its use was previously impaired need not be taken into account, even though compensation has been paid for the prior injury.”

The two apportionment statutes enacted in 1931, after the decision in Congoleum Nairn v. Brown, supra, dealt with two different kinds of preexisting condition. Apportionment under § 36 (1) (b) is available to an employer when the employee had a preexisting permanent partial disability, consisting of the loss or loss of use of a hand, arm, foot, leg, or eye. Before 1969 this apportionment was available only if the employee had executed the waiver authorized in the subsection. The waiver is no longer required, and was not required at the time of Blanding’s current injury.

Apportionment under § 36 (7) is available whenever it is shown that the present permanent disability is due in part to a preexisting disease or infirmity. This subsection has never included a waiver requirement, and the cases have held that it is not necessary that the preexisting infirmity had previously resulted in any partial disability.

It is clear to us that in Kraushar, Paul, and Bata Shoe, all involving hands, arms, or eyes, apportionment under § 36 (1) (b) would have applied if there had been a waiver, and was denied because there was no waiver.

In the case now before us, that same apportionment provision was correctly applied by the Commission, and by the Superior Court of Baltimore City, to the appellant’s permanent partial disability, despite the absence of a waiver.

Cases considering apportionment under § 36 (7), for a preexisting infirmity not involving partial disability of the hand, arm, foot, leg, or eye, such as Cabell Concrete Block Co. v. Yarborough, 192 Md. 360, 64 A. 2d 292 (1949); Bethlehem Steel Co. v. Munday, 212 Md. 214, 129 A. 2d 162 (1957); Bosley v. Jackson, 250 Md. 401, 243 A. 2d 513 (1968); and Symons v. R. D. Grier & Sons, 10 Md. App. 498, 271 A. 2d 398 (1970), are not apposite to the question involved here.

Judgment affirmed.

Appellant to pay costs.

      . It is not questioned in this appeal that the disability resulted from an injury sustained in the course of and arising out of Blanding’s employment,

      . And, as well, the additional compensation for a "serious disability’’ provided by Code, Art. 101, § 36 (4a).

      . The § 51 waiver, resting on proximate cause, was first enacted in 1941.