Board of Child Care of the Baltimore Annual Conference of the Methodist Church, Inc. v. Harker

MURPHY, Chief Judge. The question presented is whether a State-licensed and regulated child care facility, to be operated by a nonprofit charitable corporation on property owned by it, is subject to county zoning regulations. I. The Board of Child Care of the Baltimore Annual Conference of the Methodist Church, Inc. (the Methodist Board) was established, according to its charter, “to aid, protect, care for the needs and welfare of orphaned, indigent, neglected and dependent children.” It currently operates two adolescent shelter facilities in Baltimore County. The first was established in I960, and provides residential care for sixty homeless children.

The second was built in 1982 and provides emergency short-term shelter for seventeen children. Subsequently, on December 5, 1985, the Methodist Board purchased a 14.77 acre tract of land on Liberty Road in Baltimore County with the intention of constructing a third child care facility, to be composed of five residential buildings, each with the capacity to house twelve children. This facility was proposed to house non-delinquent children between the ages of two and seventeen who were victims of serious physical, sexual and emotional abuse. The site selected by the Methodist Board for this facility was within the Resource Conservation zone established by the Baltimore County Zoning Regulations (BCZR).

Specifically, the property was zoned, in part, as R.C. 2 (agricultural use) and as R.C. 5 (rural-residential use). Under the BCZR, child ⁶⁸⁶ care facilities are categorized as “community care centers.” § 101. They are permitted in an R.C. 2 zone only by special exception, provided that “the use would not be detrimental to the primary agricultural uses in its vicinity,” and the facility not “provide care for more than 15 persons per site.” BCZR § 1A01.2(C)(5). The R.C. 5 zone contains a similar density restriction. § 1A04.2(B)(5A).

Thus, the larger sixty person facility proposed by the Methodist Board would not be permitted at all in either an R.C. 2 or R.C. 5 zone. The Methodist Board purchased the Liberty Road site, believing it was entitled to an exemption from county zoning regulations because one of its earlier child care facilities had been afforded an exemption based upon a 1982 opinion of the then County Attorney of Baltimore County. That opinion, which the Zoning Commissioner accepted at that time as pronouncing the governing law, expressed the view that a child care facility performs a governmental function and was therefore exempt from county zoning regulations. A special hearing before the Zoning Commissioner pursuant to § 500.7 of the BCZR was held to determine whether the proposed new Liberty Road facility was entitled to an exemption.

The Methodist Board maintained that the exemption was appropriate because, in providing a child care facility, it was acting as an agent of the State performing a governmental function. A number of adjoining property owners opposed the exemption claiming, inter alia, that the proposed use of the property did not make the use “a governmental function or entitle it to an exemption from the effect of the zoning law.” The Zoning Commissioner, after a hearing, noted that the Methodist Board was licensed by the Social Services Administration of the Maryland Department of Human Resources and was governed by the Code of Maryland Administrative Regulations, 07.02.13 (COMAR). He recognized that the proposed facility would provide short-term emergency care for non-delinquent children, who were homeless, dependent, ⁶⁸⁷ neglected or who had been abused. Referrals would come from various county Departments of Social Services.

The Methodist Board, the Commissioner found, “provides a facility that serves a definite public policy, satisfying our society’s overriding concern for the benefit and welfare of children.” The Commissioner opined that the General Assembly “has mandated that government assume the responsibility to ensure that our children be provided a safe and stable facility where they can be protected during times of crises”; consequently, he said, “the State has overriding interests that subjugate local concerns,” as a result of which the statutory provisions for child care facilities constitute “a legislatively imposed obligation.” The Commissioner concluded that it was the general policy of the State, as manifested by statute, to promote child care facilities; that being governmental in nature, these facilities were not subject to local zoning restrictions; and that such a facility constituted a “public use,” which extended beyond direct State ownership and control of property. According to the Commissioner, “the extrapolation from publicly-owned property to privately-owned property does not change the result as long as the ultimate use and purpose to which the property will be used is unquestionably a public one.” The determinative factor, the Commissioner summarized, is “the character of the proposed use”-—if it is a “public one or confers a public benefit ... [,] local zoning regulations are inapplicable.” The protesting property owners, together with People’s Counsel of Baltimore County, appealed to the County Board of Appeals (the County Board). 1 Following a hearing, the County Board vacated the Zoning Commissioner’s order. It identified the question presented as whether “the State’s immunity from local zoning regulations attaches to a privately-owned property being used for public purposes.” ⁶⁸⁸ The County Board, after recognizing the “urgent need” for child care facilities, noted that all referrals to the facility “would be made pursuant to a contractual arrangement entered into by and between the property owner and the State of Maryland.” Nevertheless, it said that the County intended that its zoning regulations apply to these facilities; that the facility was not exempt because it exercised “a governmental function” and this was so notwithstanding the fact that child care facilities exist for the public good and must be licensed by the State. The Methodist Board appealed to the Circuit Court for Baltimore County.

At this juncture, Baltimore County was permitted to intervene. Its position echoed that of the Methodist Board, namely, that the county zoning regulations did not apply because the facility was performing a governmental function and was therefore exempt from zoning restrictions in the BCZR. The court (Nickerson, J.) affirmed the County Board, holding that no exemption existed “from local zoning for privately owned land used by private organizations for functions governmental in nature.” The Methodist Board appealed to the Court of Special Appeals. Prior to consideration by the intermediate appellate court, we granted certiorari to consider the significant issue of public importance raised in the case.

We also granted permission to the State of Maryland to file a brief Amicus Curiae in the case in support of the position taken by both the Methodist Board and by Baltimore County.

II

Title 5 of the Family Law Article of the Maryland Code (1984, 1988 Cum.Supp.), entitled “Children,” contains eleven subtitles covering §§ 5-101 through 5-1104. Subtitle 5 is captioned “Child Care; Foster Care”; it encompasses §§ 5-501 through 5-589. Section 5-502(b) of subtitle 5 declares it to be the policy of this State “to protect minor children whose care has been relinquished to others ... [and] to encourage the develop ⁶⁸⁹ ment of day care services for minor children in a safe, healthy, and homelike environment.” Section 5-506(a)(1) recognizes that the care of these children is a State responsibility. With exceptions not here pertinent, a license from the Social Services Administration of the Department of Human Resources (the Administration) is required to operate a child care home or institution before exercising “care, custody, or control of a minor child.” §§ 5-508 and 5-509.

The Administration is authorized by § 5-506 to adopt rules and regulations to carry out the purpose of these sections. 2 In connection with its licensing function, the Administration is authorized by § 5-519 to “investigate the policies, purposes, premises, and facilities of a licensee or an applicant for a license.” Section 5-525 directs the Administration to establish a program of short term and permanent foster care for minor children in approved child care facilities and in connection therewith to adopt rules and regulations. Section 5-526(a) requires the Administration to provide “for the care, diagnosis, training, education, and rehabilitation of children by placing them in ... institutions that are operated by nonprofit charitable corporations.” Section 5-526(b) directs the Administration to reimburse these corporations “for the cost of these services at appropriate monthly rates.” Section 5-532 authorizes the Administration “to adopt rules and regulations to carry out the child welfare services and foster care programs under this subtitle.” Maryland Code (1985 Repl.Vol., 1988 Cum.Supp.), Article 88A, entitled “Social Services Administration,” empowers the Administration to supervise “all public and private institutions having the care, custody or control of dependent, abandoned or neglected children, except those institutions under the authority of the State Juvenile Services Administration.” § 3(c). The Administration has also been ⁶⁹⁰ authorized “to designate existing agencies or organizations within the State as its agents as may in its discretion be desirable or necessary for the purpose of this article.” § 3(f). The Administration does not itself operate any child care facilities.

The Administration’s regulations of child care facilities are contained in Volume III, Title 7 of COMAR (Human Resources). Subtitle 2 of this Title, captioned “License for Care of Children” comprehensively prescribes health and safety requirements for child care facilities, both in respect to the services provided to the children and to the physical facilities housing them. They also delineate standards of financial accountability, record keeping and provisions for reimbursement of services to the State. COMAR, Section 07.02.13, 07, under the caption “General Requirements for all Child Care Facilities” provides: “(1) Zoning Approval.

The facility shall comply with any applicable zoning regulations and obtain approval when this is required by the local zoning authority.” Section 5-506(d)(l) of the Family Law Article provides that a child care home or institution “may not be required to obtain a license from more than 1 State agency.” 3 III. The rule in Maryland is that the State is not bound “by an enactment of the General Assembly unless the enactment ⁶⁹¹ specifically names the State or manifests a clear and indisputable intention that the State is to be bound.” City of Baltimore v. State, 281 Md. 217, 223 , 378 A.2d 1326 (1977). See also People’s Counsel for Baltimore County v. Maryland Marine Manufacturing Co., Inc., 316 Md. 491 , 560 A.2d 32 (1989) (No. 89, September Term, 1988, filed July 6, 1989); City of Baltimore v. State Dep’t, 38 Md.App. 570, 571 , 381 A.2d 1188 (1978). We held in City of Baltimore, supra, 281 Md. at 223 , 378 A.2d 1326 , that the State was exempt from the city’s zoning regulations because nothing in its zoning enabling law, either expressly or by clear implication, subjected the State to the provisions of that jurisdiction’s zoning ordinance.

Maryland Code (1987 Repl.Vol.), Article 25A, § 5(X), which grants Baltimore County its zoning authority, neither specifically provides nor clearly implies that the State is intended to be subject to its provisions. That statute (a part of the Express Powers Act governing home rule counties) provides in subsection (X)(2)(i) that it is “the policy of this State that the orderly development and use of land and structures requires comprehensive regulation through implementation of planning and zoning controls”; and subsection (ii) thereof specifies that “zoning controls shall be implemented by local government” Section 5(X)(2)(v)(4) provides that the county’s zoning powers shall not “preempt or supersede the regulatory authority of any State department or agency under any public general law.” The Methodist Board argues before us that the State’s exemption from Baltimore County’s zoning regulations extends to property owned by a nonprofit charitable corporation which that corporation uses pursuant to a contract with the State to provide governmental services mandated by State law. It says that the statutory authority of the Administration to designate private corporations as agents of the State to carry out clearly defined public policy is necessarily accompanied by exemption from local zoning regulations. According to the Methodist Board, title to the property is not the determinative factor for exemption ⁶⁹² purposes; rather, it is the nature of the use to which the property is put by its owner.

The Methodist Board points to the provisions of the Family Law Article which require the State to place homeless children in licensed child care facilities operated by nonprofit charitable corporations. It also focuses on those provisions of Article 88A authorizing the State to designate nonprofit charitable corporations as its agent to provide child care services required by statute. Applying fundamental principles of agency law, the Methodist Board claims that, as the State’s statutory agent, it succeeds to the exemption held by its principal while performing the governmental function required by law. The Methodist Board augments its basic argument by contending that the State has impliedly preempted the field of licensing and regulation of child care facilities, and thus Baltimore County is precluded from exercising any control over these facilities by means of local zoning regulations.

State legislation, the Methodist Board contends, is so comprehensive as to evidence a clear intention by the legislature to occupy this entire field and, as a consequence, the State has reserved to itself exclusive dominion over determinations governing whether, or where, child care facilities may be established and operated. The State of Maryland, in its amicus brief, fully supports the Methodist Board’s preemption argument. The protesting property owners and People’s Counsel maintain that the Methodist Board is not a constituent part of the State government and is not, therefore, an agency or instrumentality of the State in any traditional sense; rather, they say, the Methodist Board is simply a vendor of services required to be provided by the State, for which the State makes payments under a contract authorized by statute. Nothing in the law, they say, requires the Methodist Board, or any other nonprofit charitable corporation, to undertake these activities.

Moreover, it is argued, the State’s immunity from local zoning controls emanates from ⁶⁹³ its sovereign nature rather than from the type of activity to be conducted on the property. As to implied preemption, the protesting property owners and People’s Counsel claim that the State statutes in question, while regulating child care facilities through the licensing process, do not encompass the location of these facilities. They point out that these statutes are silent on the applicability of local zoning criteria to licensed child care institutions and that preemption cannot be implied by mere silence.

IV

That the exemption