Layton v. Howard County

922 A.2d 576

399 Md. 36

Colleen LAYTON, et al. v. HOWARD COUNTY BOARD Of APPEALS, et al.

No. 116, Sept. Term, 2006.

Court of Appeals of Maryland.

May 9, 2007.

M. Albert Figinski (Law Offices of Peter G. Angelos, Baltimore, on brief), Fred M. Lauer, Baltimore, for petitioners.

Thomas M. Meachum (Reese & Carney, LLP, Columbia, on brief), Barry M. Sanders, Asst. County Solicitor (Howard County Office of Law, Ellicott City, on brief), for respondents.

Argued before Bell, C.J., Raker, Cathell, Harrell, Battaglia, Greene, Alan M. Wilner, (Retired specially assigned), JJ.

CATHELL, J.

This case, in a land use or zoning context, addresses the question of the retrospective applicability of a related statutory law which is amended during the course of litigation. It presents the issue of whether the rule in Yorkdale Corporation v. Powell, 237 Md. 121, 205 A.2d 269 (1964), may be applied to enlarge uses as well as to limit uses.

Colleen Layton and Scott Robbins, d/b/a Frisky's Wildlife and Primate Sanctuary, Inc., (collectively referred to as "Frisky's"), the petitioners, attempted to obtain a special exception to operate as a charitable and philanthropic institution in Howard County. The primary reason for the application was that Frisky's had apparently been out of compliance with Howard County's zoning ordinances in its operation as an animal rehabilitation center and primate sanctuary. The Howard County Board of Appeals (the "Board") granted Frisky's special exception in part, but denied it permission to operate as a primate sanctuary. Thereafter, on June 17, 2004, petitioners filed a petition for judicial review in the Circuit Court for Howard County. On June 25, 2004, Richard Wyckoff and Julianne Tuttle, neighbors of Frisky's, filed a separate petition for judicial review, which the Board joined (collectively the respondents). Both petitions, by order of the court, were later consolidated. On September 27, 2004, a pertinent portion of the Howard County Code was amended, changing the definition upon which the Board had relied in making its initial zoning decision to deny Frisky's permission to operate a primate sanctuary. On April 8, 2005, the Circuit Court held a hearing on the matter and, on July 13, 2005, issued a memorandum opinion affirming the decision of the Board.

Petitioners filed a motion to alter or amend judgement, which was denied on August 30, 2005. Petitioners then appealed to the Court of Special Appeals. In a reported opinion, Layton v. Howard County Board of Appeals, 171 Md.App. 137, 908 A.2d 724 (2006), the Court of Special Appeals affirmed the decision of the Circuit Court. Petitioners then timely filed a petition for certiorari with this Court, which we granted on December 14, 2006. Layton v. Howard County, 396 Md. 12, 912 A.2d 648 (2006).¹ One question is presented for our review:

"Whether one who challenges a decision of a zoning board may have, as Petitioners here seek, (a) the benefit of a legislated change in the basis of a decision of the zoning board and (b) demand application on judicial appeal of the `new law'?"

We answer this question in the affirmative. Under the Yorkdale Corporation v. Powell, 237 Md. 121, 205 A.2d 269 (1964), rule, legislated change of pertinent law, which occurs during the ongoing litigation of a land use or zoning case, generally, shall be retrospectively applied.

I. Facts

Petitioners have operated Frisky's, a wildlife refuge and sanctuary, in Howard County since 1976. Frisky's has been at its current location, 10790 Old Frederick Road, Woodstock, Maryland, since 1993. That property is composed of 3.728 acres and is zoned as a Rural Conservation-Density Exchange Option Overlay Zoning District ("RC-DEO").

This controversy arose on December 14, 1999, when petitioners were issued a notice by the Howard County Department of Planning and Zoning (the "Department") for violating a zoning regulation by operating a charitable and philanthropic institution without an approved special exception. Frisky's was incorporated in 1998, as a not-for-profit corporation, but petitioners had never filed for a special exception to bring the operation of the facility into compliance with Howard County's zoning regulations.

On April 28, 2000, petitioners filed a petition "for a Special Exception for a Charitable and Philanthropic Institution (Section 131.N.13) for an existing wildlife rehabilitation center and primate sanctuary" with the Department. The Department, on August 9, 2000, issued a recommendation to the Howard County Board of Appeals, in which it suggested that Frisky's petition for a special exception be approved, subject to a number of conditions. The matter then went before the Board, for a special exception petition for a charitable and philanthropic institution in a RC-DEO, pursuant to § § 131.N.13² and 130.B.2³ of the Howard County Zoning Regulations ("HCZR") in effect at that time. Numerous hearings were held over the course of the next three years — these hearings included testimony from witnesses on both sides.

On May 18, 2004, the Board issued its written decision, which, as relevant to this proceeding, granted Frisky's a special exception to operate as a charitable and philanthropic institution, including permitting the operation of an animal rehabilitation center on the property. The Board, however, denied Frisky's an exception to operate a primate or other exotic wildlife sanctuary. The Board's factual findings stated, in pertinent part:

"2. The Petitioner currently operates a charitable institution that functions as an animal rehabilitation center and primate sanctuary (the `Center') on the Property. Frisky's is registered with the State of Maryland as a Charitable Organization and with the State Department of Assessments and Taxation as a non-stock, not for profit corporation for the purpose of a charitable organization. In order to operate such an organization in the RC district, a Special Exception is required.<sup>4</sup> The Petitioner is trying to gain approval as a Special Exception for a `Charitable and Philanthropic Institution' for this purpose on the 3.728 acre Property.

"3. The Petitioner's proposed activities include care and rehabilitation for `wildlife that have been injured or orphaned; domestic animals such as rabbits, and farm animals that are sick or who have become pets, but can't be kept by their owners; and primates that come from laboratories, sanctuaries or private owners around the country before it became illegal to own primates without a license.' The Petitioner submitted documentation of a Wildlife Permit for Wildlife Rehabilitation from the Maryland Department of Natural Resources. . . .

"4. At the hearing held before the Board on November 1, 2001, the Petitioner submitted documentation that F risky's had obtained a `Class C Exhibitor' license pursuant to the Animal Welfare Act (7 U.S.C. 2131 et seq.) from the United States Department of Agriculture.

"5. Animals which are permitted to be rehabilitated are accepted from multiple sources, provided care and shelter, and upon recovery, are released back into the wild or made available for adoption. Primates stay in the care of Frisky's for the remainder of their lives.

. . .

"18. The Board finds based on the evidence presented that the Petitioner operates the Center on the subject Property as a charitable institution for the rehabilitation and sanctuary of animals. Included in the animals housed in the center are monkeys, other primates and wild animals. Exotic animals are defined in Section 17.300(p) of the Howard County Code (the `Code') as `animals of a species that is not indigenous to Howard County and is not a domesticated animal.' A wild animal is defined in Section 17.300(y) of the Code as `an animal which is not a domesticated animal, is incapable of being completely domesticated, or requires the exercise of art, force, or skill to keep it in subjugation. Wild animal includes any hybrid animal which results from the breeding of a wild animal and a domesticated animal.'

"19. The Board finds that the monkeys and other primates housed in the Center are wild and exotic animals as defined in the Code.

"18. Section 17.306(e) of the Code provides that wild or exotic animals are prohibited in Howard County as follows:

(1) Wild or exotic animals prohibited: No person may keep, hold for sale or sell wild or exotic animals even if well trained, de-clawed, defanged, ostensibly domesticated and affectionate to people.

(2) Exemption for licensed veterinarian: a licensed veterinarian is exempt from the provisions of paragraph (1) only for the purpose of professional medical treatment of such animals.

(3) Exemption for research, study, exhibits: The holder of a currently valid permit issued by a state or federal authority to keep animals for scientific research, study, or exhibits is exempt from the provisions of paragraph (1) only to the extent provided in the permit.

"21. The Board finds that although the Petitioner may have a license to exhibit animals at the Center, the Petitioner initially did not apply to be an animal exhibitor and subsequently failed to provide sufficient evidence during the course of the hearings held before the Board to determine that the Petitioner is, in fact, an animal exhibitor. . . .

"22. Therefore, the exemption for `exhibits' in Section 17.306(e)(4)[(3)] is not applicable to this petition."

The Board's conclusions of law stated, in pertinent part:

"1. The Board concludes that the Petitioner operates the Center as a charitable institution for the rehabilitation and sanctuary of animals on the Property.

"2. The Board concludes that the rehabilitation center and sanctuary does not operate as a center for displaying or exhibiting the animals to the public.

"3. The Board concludes that the monkeys and other primates at the center are wild and exotic animals as defined by the Howard County Animal Control Law, Section 17.300 et seq. of the Howar...