Kastendike v. Baltimore Ass'n for Retarded Children, Inc.

Digges, J., delivered the opinion of the Court. Mr. and Mrs. George H. Kastendike, appellants, must believe in the statement, “Love your neighbor, yet pull not down your hedge.” 1 For while professing no rancor toward or intention to prohibit their neighbor, The Baltimore Association for Retarded Children, Inc. (BARC), appellee, from moving in, the Kastendikes insist that the move should not be allowed unless BARC obtains approval of the Mayor and City Council of Baltimore City. More particularly, this case involves the lawfulness of the use of the premises at 218 Ridgewood Road, in Baltimore, by the appellee, as a home for the care of retarded adults. Mr. and Mrs. Kastendike have sought to have such a use, without the assent of the Mayor and City Council, declared illegal and enjoined; and toward that end, on March 4, 1971, they filed their bill of complaint.

From an order entered in the Circuit Court No. 2 of Baltimore City, whereby Judge Meyer M. Cardin refused to grant the relief requested by the Kastendikes, this appeal is taken. As we conclude that Judge Cardin correctly refused to enjoin this use of the property, we affirm his order. The appellants contend that the premises cannot be used as a home for retarded adults unless BARC obtains ³⁹² not ope but two authorizations from the Mayor and City Council. The Kastendikes posit that these are required by Article 12, § 1 of the Baltimore City Code (1966 ed.) and additionally by the provisions of the 1971 zoning ordinance, No. 1051.

To demonstrate the error of appellants’ contention and show why we concluded that Judge Cardin was correct, it is necessary to journey back to the year 1873. In that year, Ordinance No. 5 was passed and it then read in pertinent part: “An ordinance in relation to hospitals for the sick. Whereas, the establishing of hospitals for the sick in the densely populated portions of the City of Baltimore is of doubtful utility in the matter of the public health, while the effect thereof is to materially depreciate the value of private property in the vicinity in which they may be located, therefore Section 1. — Be it enacted and ordained by the Mayor and City Council of Baltimore, That it shall not be lawful to establish any hospital for the sick within the limits of direct taxation, unless by and with the assent of the Mayor and City Council of Baltimore; provided, that before such assent shall be given, public notice shall be given of an intention to apply to the City Council for such grant, which public notice shall be given at least thirty days before the City Council shall act upon the application, and published at least once a week for four weeks in not less than two of the daily newspapers of the city.” This non-zoning ordinance, thus, required assent for the establishment of a “hospital for the sick,” although nowhere in the ordinance is this phrase defined. Returning to the 20th Century, in 1931 a comprehensive zoning ordinance for the City, No. 1247, was enacted.

Under this law, the neighborhood in which the ³⁹³ 218 Ridgewood Road property is located was zoned as a residential use district. Within such a district, all uses of land or buildings were permitted except for those specifically excluded. The uses to which this property was put between the years 1931 to 1946 are unclear from the record, but none of the parties contests the fact that by January 1946, the building on this property was used as a nursing home for the aged. At that time, the premises was owned by two sisters, Ola and Caroline Gaddis, who established and operated the nursing home there until 1966.

The establishment of this nursing home was not accompanied by the obtention of assent from the Mayor and City Council. But, at the trial of this case, the testimony of the zoning enforcement officer for Baltimore City, Mr. Franklin Aschemeier, Jr. indicated that in 1946 a nursing home was not considered to be a “hospital for the sick” so as to require assent. Mr. Aschemeier, in his testimony, stated that those zoning officials charged with enforcement of the regulations did not consider that assent was required for a nursing home and they were permitted in a residential use district without any approval from the Mayor and City Council. The validity of this interpretation is buttressed by the fact that, apparently in order to include nursing homes within the provision requiring assent, an amending ordinance, No. 29, was approved, on August 1, 1947, which defined “hospital” in an all-inclusive way.

This ordinance, codified as Art. 12, § 1, Baltimore City Code (1966 ed.) reads in part: “It shall not be lawful to establish any hospital for the sick in the City, unless by and with the assent of the Mayor and City Council of Baltimore; provided, that before such assent shall be given, public notice shall be given of an intention to apply to the City Council for such grant, which public notice shall be posted in a conspicuous place on the premises and be published at least once a week for four weeks in not less than two of the daily newspapers of ³⁹⁴ the city, at least thirty days before the City Council shall act upon the application. “Hospital”, as herein used, means any place or institution which maintains and operates facilities for the care, custody and/or treatment of two or more non-related persons as patients suffering mental or physical ailments but shall not be construed to include any dispensary or first-aid treatment facilities maintained by any commercial or industrial plant, educational institution or convent.” The Gaddis Nursing Home, opened in 1946, prior to the approval of Ordinance No. 29, was operated continuously until the death of Caroline in 1966. That year, the property was sold to 218 Ridgewood Road, Inc. which maintained the premises as a nursing home for the aged until 1969. Then, the property was sold to the Encore House Foundation, Inc. which operated the home as a nursing home for the aged and a treatment center for non-bedridden alcoholics until late December 1970, when all the patients were moved out in anticipation of settlement on the sale of the house to the appellee. Until now, despite the fact that none of these owners obtained the assent of the Mayor and City Council, no objections were registered about their operations by any governmental official, or, for that matter, by anyone else.

In November, 1970, Encore entered into a contract to sell the property to BARC, and on February 5, 1971 settlement was made. The home was then to be used as a treatment center and care home for retarded adults; but, before actual operations could begin, certain internal repairs were necessary to comply with fire and health requirements. These undertakings were deferred when, one month after settlement, appellants instituted this action. Later, on April 20, following the filing of this suit, the Baltimore City Zoning Ordinance was completely revised by Ordinance No. 1051 which rejected the permissive zoning of the 1931 ordinance and its amendments and replaced it with an exclusory plan.

Now, the BARC ³⁹⁵ property is in a R-l residence district where permitted uses are listed and all others are excluded except for certain enunciated accessory and conditional uses. Convalescent, nursing and rest homes, and hospitals are conditional uses that may be permitted in this district but require authorization by ordinance of the Mayor and City Council prior to their establishment. Under the facts we have just recited and the applicable ordinances, the Kastendikes contend in their brief that: “first, BARC should obtain an ordinance under Article 12, Section 1, Baltimore City Code (1966 Edition) regulating the establishment of ‘hospitals’ (defined to include care homes) and second, BARC should comply with the provisions of the 1971 Zoning Ordinance requiring Mayor and City Council approval of that use.” We shall discuss these issues in the order in which appellants present them. I The Kastendikes claim that BARC is establishing a hospital and, therefore, under the provisions of Article 12, § 1, Baltimore City Code (1966 ed.) is required to obtain the assent of the Mayor and City Council.

We cannot agree. The ordinance requiring assent for nursing homes was not approved until August 1, 1947 and prior to that time such approval was not deemed necessary for the establishment of a care home. The history of this case indicates that the Gaddis sisters established their nursing home prior to the ordination of this requirement. Therefore, the Gaddis Nursing Home did not require an assent ordinance prior to its establishment unless Ordinance No. 29 was specifically enacted to have retrospective effect.

The general presumption is that all statutes or ordinances are to be given prospective application unless the manifest intention of the enacting body was to the ³⁹⁶ contrary. Unsatisfied Fund v. Bowman, 249 Md. 705, 708 , 241 A. 2d 714 (1968). As we said in Tax Comm. v. Power Company, 182 Md. 111, 116-17 , 32 A. 2d 382 (1943) : “Laws are generally enacted to regulate future conduct and establish the basis upon which rights are thereafter to be predicated; they are not usually designed to change the legal relation of closed transactions, especially if the change would interfere with antecedent rights. It is well settled that a statute will not be given a retrospective operation, unless its words are so clear, strong and imperative in their retrospective expression that no other meaning can be attached to them, or unless the manifest intention of the Legislature could not otherwise be gratified.” Here, there is no express language indicating retroactive effect.

And, from our reading of Article 12, § 1, we are convinced that it was not the intention of the City Council to interfere with any existing establishment. In fact, it might be questioned whether it could give a retrospective operation to such an ordinance. Glenn v. M. & C.C. of Balt., 5 G. & J. 424, 430 (1833). Thus, clearly, the action of the Gaddises in establishing their nursing home did not require assent.

But, does this immunity from the requirement by the prior owners insulate their successors in interest? We conclude that it does. Since this home was lawfully established without approval, as at the time of its inception no assent was needed, it is analogous to a zoning non-conforming use under the non-zoning requirement for approval in Art. 12, § 1. The subsequent changes in ownership of the premises and changes from treatment of the aged and alcoholic to care for retarded adults does not affect the right of the new owner to continue without assent.

Cf. Green v. Garrett, 192 Md. 52 , 63 A. 2d 326 (1949) ; Parr v. Brady-house, 177 Md. 245 , 9 A. 2d 751 (1939). See also Annot., 9 A.L.R.2d 1039 (1950). Though Green and Parr are ³⁹⁷ zoning cases involving non-conforming uses, they are instructive as to the course to follow in the case here.

In Green , some taxpayers of Baltimore City attempted to enjoin the Department of Recreation and Parks from permitting the use and occupancy of Baltimore Stadium by a professional baseball team. Chief Judge Marbury, speaking for this Court in Green, supra at 63 , stated that: “The second contention of the appellants is that the use of the Stadium for the playing of professional baseball contravenes the zoning ordinance of Baltimore, because it is located in a district of Baltimore City which is zoned for residential use. The zoning ordinance was passed in 1931, after the Stadium was built, and after it had been used for professional football games, and at least one professional baseball game. It had also been used for football games by the United States Naval Academy, for which purpose it had been leased.

There was, therefore, a non-conforming use, established before the adoption of the zoning ordinance, which the Department was entitled to continue. The appellants contend that the enlargement of this use to include professional baseball games for a considerable period of a year is not within the exemption, but we cannot so find. We held in the recent case of Colati v. Jirout, 186 Md. 652 , 47 A. 2d 613 , that the spirit of the zoning ordinance is against the extension of non-conforming uses, and that such uses should not be perpetuated any longer than necessary. We have never held that the more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose.

We do not think such a contention is tenable. Nor does it seem to us that a different use is made of the Stadium when the ³⁹⁸ players of games there are paid. The use of the property remains the same. And, if it does not, the zoning ordinance permits a non-conforming use to be changed to a use of the same classification.” Similarly, in Parr , efforts were made to prevent a Mr. Bradyhouse from renting a tract of land that was formerly used for a dairy business and turning it into a riding academy.

This Court would not allow the exclusion of the riding academy and found that the change from cows to horses could not affect the right to use the land as a non-conforming use. See also Feldstein v. Zoning Board, 246 Md. 204 , 227 A. 2d 731 (1967) (increase in quantity and height of scrap metal stored in junkyard was intensification and not extension of owner’s vested non-conforming use); Jahnigen v. Staley, 245 Md. 130 , 225 A. 2d 277 (1967) (intensification of a non-conforming use is permissible so long as the nature and character of the use is unchanged and substantially the same facilities are used). Likewise, we conclude that the similarities between the various uses of the premises as a nursing home are greater than the differences and the changes, if any, in