Layton v. Howard County Board of Appeals

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, ³⁸ 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 judgment, 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 5 ?” 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”). ³⁹ 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.13 2 ⁴⁰ and 130.B.2 3 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.[ 4 ] 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 ⁴¹ 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. “20. 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 ⁴² 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 Howard County Code. “4. The Board concludes that it is unlawful under the Howard County Code to operate a primate sanctuary or wildlife rehabilitation center in Howard County.

Section 17.306(e)(1) of the Code provides that ‘No person may keep, hold for sale or sell wild or exotic animals even if well ⁴³ trained, de-clawed, defanged, ostensibly domesticated and affectionate to people.’ “5. The Board concludes that although the Petitioner may have an exhibitor’s license, the Petitioner failed to provide sufficient evidence during the course of the hearings for the Board to determine that the Petitioner is, in fact, an animal exhibitor rather than a sanctuary and rehabilitation center for animals. The exemption for exhibits in Section 17.306(e)(4) [ (3) ] of the Howard County Code does not apply because the Petitioned ] did not prove to the Board that she was an exhibitor and the Petitioned ] cannot therefore legally keep primates or other wild or exotic animals on the subject Property. “7. The Board further concludes that because wild or exotic animals are prohibited by local law in Howard County (except under circumstances not found to be present in this case) the Zoning Board could not have contemplated a land use for a rehabilitation center and primate sanctuary for wild and exotic animals as constituting a charitable institution in the context of the zoning regulations.

The Board cannot grant a special exception for the primate sanctuary use or that portion of the rehabilitation center involving wildlife which is not permitted by the Howard County Code or the Howard County Zoning Regulations. “8. Thus this Board’s approval of the charitable and philanthropic institution use for a animal sanctuary and rehabilitation center hereinafter (referred to as ‘Approved Charitable Use’) excludes the primate sanctuary and other wildlife not permitted under the Howard County Code.” Pursuant to the provisions of the Howard County Code in effect at the time of the Board’s decision, monkeys and other primates were considered exotic or "wild animals. §§ 17.300(p) and (y). Furthermore, § 17.306(e) of the Howard County Code, at that time, provided that no person (or corporation) could keep exotic or wild animals unless it met the exemption ⁴⁴ of having a valid permit issued by a state or federal authority to keep such animals for scientific research, study or exhibits. § 17.306(e)(3). The Board found that Frisky’s did not satisfactorily establish evidence to meet such an exemption and, therefore, determined that it was not permitted to operate a primate sanctuary.

On June 17, 2004, Frisky’s filed a petition for judicial review in the Circuit Court for Howard County; Richard Wyckoff and Julianne Tuttle, neighbors of Frisky’s, filed a separate petition for judicial review on June 25, 2004. Those petitions were consolidated by order of the court. On September 27, 2004, prior to any hearing before the Circuit Court, Howard County amended pertinent provisions of the Howard County Code. The Code provided a definition for “Animal Sanctuary,” which was not in existence at the time of the hearing before the Board.

Specifically, § 17.300(g) stated: “Animal Sanctuary. A facility that performs at least one of the following functions: (1) Rescues, rehabilitates and releases, when possible, native wildlife; or (2) Provides permanent housing to the following categories of non-releasable animals, as defined in this subtitle: (i) Wild animals; or (ii) Exotic animals.” Exotic animals were defined in § 17.300(q) as: “An animal of a species that is not indigenous to Howard County and is not a domesticated animal.... ” Wild animals were defined in § 17.300(aa) as: “An animal that 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.... ” Thus, monkeys and other primates still fell under the definition of a wild or exotic animal. ⁴⁵ The provision upon which this case turns, however, (i.e., the section dealing with the keeping of wild or exotic animals) was also amended. Now set forth in § 17.307(d), it read: “Wild or Exotic Animals Prohibited. A person shall not keep, hold for sale, offer for sale, or sell a wild or exotic animal, even if the animal is well-trained, de-clawed, defanged, ostensibly domesticated, and affectionate to people, except that: (1) A circus or animal show holding a valid permit from any public authority for temporary operation is exempt from this subsection for the term of the permit; (2) A licensed veterinarian may temporarily keep such an animal only for the purpose of professional medical treatment of the animal; (3) The holder of a valid permit issued by a state or federal authority to keep a wild or exotic animal is exempt from this subsection only to the extent provided in the permit; (5) An animal sanctuary is exempt from this subsection if the sanctuary meets all state and federal licensing and permitting requirements. ” [Emphasis added.] Subsection (5) now provided an exemption for animal sanctuaries.

Therefore, under the new law, as described by § § 17.300(g) and 17.307(d) of the Howard County Code, Frisky’s may arguably meet the definition of an “Animal Sanctuary” and thus be exempt from the prohibition 5 against keeping wild or exotic animals under § 17.307(d)(5). 6 ⁴⁶ Petitioners incorporated this change in law into the arguments presented before the Circuit Court for Howard County. On April 8, 2005, the Circuit Court held a hearing on the consolidated petitions for judicial review and, on July 13, 2005, issued a memorandum opinion affirming the decision of the Board. The Circuit Court declined to accept petitioners’ argument that the new provisions of the Howard County Code should be retrospectively applied to Frisky’s petition for the operation of a primate sanctuary. 7 Petitioners filed a motion to alter or amend judgment, which was denied by the Circuit Court. The petitioners then timely appealed to the Court of Special Appeals.

The intermediate appellate court heard argument and issued its reported opinion on October 2, 2006. Layton v. Howard County Board of Appeals, 171 Md.App. 137 , 908 A.2d 724 (2006). The Court of Special Appeals addressed the retrospective application of the new provisions of the Howard County Code. After conducting a review of Maryland law, the court determined that the changes in the Code should not be applied to the case at bar.

Specifically, the court stated: “Turning to the instant case, we see no reason to stray from the general rule that statutes are presumed to operate prospectively and are construed accordingly. See Washington Suburban Sanitary Commission v. Riverdale Heights Volunteer Fire Co. Inc., 308 Md. 556, 560-61 , 520 A.2d 1319 (1987). We are unable to discern in the statute a clear expression of the legislative intent that the statute should operate retrospectively, nor have appellants directed us to any such intent in their brief or oral argument. Notwithstanding that there is no articulated legislative intent, no other exception to the general rule applies to the change in the animal control law. “The law is not procedural, but substantive.

The Court of Appeals discussed the difference between substantive laws ⁴⁷ and procedural or remedial laws in Langston, stating: ‘A law is substantive if it creates rights, duties, and obligations, while a remedial or procedural law simply prescribes the methods of enforcement of those rights.’ 359 Md. at 419, 754 A.2d 389 [ (2000) ] (citations omitted). The animal control law at issue provides a right for a sanctuary to have exotic and wild animals, not a new method or procedure to enforce their right to have the animals. We discussed in Langston what defines a remedial statute, stating: Generally, remedial statutes are those which provide a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries. They also include statutes intended for the correction of defects, mistakes and omissions in the civil institutions and the administration of the state. 359 Md. at 408-09 , 754 A.2d 389 .

The animal control law is not remedial, but a new substantive right to possess wild and exotic animals for facilities that are designated as animal sanctuaries. “Finally, the animal control law is not a zoning law;[ 8 ] whether it should be applied retrospectively is not properly based upon the rationale relied upon in our decisions in Mandel[ 9 ] and Holland[ 10 ]. Thus, we hold that the circuit court did not err by refusing to remand the case to the Board for consideration under the current animal control law.” ⁴⁸ Layton, 171 Md.App. at 172-73 , 908 A.2d at 744 . The Court of Special Appeals affirmed the decision of the Circuit Court.

II

Standard of Review In Purich v. Draper Properties, Inc., 395 Md. 694 , 912 A.2d 598 (2006), we quoted Alviani v. Dixon, 365 Md. 95 , 775 A.2d 1234 (2001), where we discussed the standard of review of administrative agency decisions in the context of special exceptions: “A proceeding on a special exception is subject to a full judicial review. Mossburg v. Montgomery County, 329 Md. 494, 506 , 620 A.2d 886, 892 (1993). We examined the correct standard of judicial review in White v. North, 356 Md. 31, 44 , 736 A.2d 1072, 1079-80 (1999), when we stated that: In judicial review of zoning matters, including special exceptions and variances, ‘the correct test to be applied is whether the issue before the administrative body is “fairly debatable,” that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.’ Sembly v. County Bd. of Appeals, 269 Md. 177, 182 , 304 A.2d 814, 818 (1973). See also Board of County Comm’rs v. Holbrook, 314 Md. 210, 216-17 , 550 A.2d 664, 668 (1988); Prince George’s County v. Meininger, 264 Md. 148, 151 , 285 A.2d 649, 651 (1972); Zengerle v. Board of County Comm’rs, 262 Md. 1, 17 , 276 A.2d 646, 654 (1971); Gerachis v. Montgomery County Bd. of Appeals, 261 Md. 153, 156 , 274 A.2d 379, 381 (1971).

For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision must have ‘substantial evidence’ on the record supporting its decision. See Mayor and Aldermen of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395 , 396 A.2d 1080, 1087 (1979); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706 , 376 A.2d 483, 495 (1977), cert, denied sub nom. Funger v. Montgomery County, 434 U.S. 1067 , 98 S.Ct. 1245 , 55 L.Ed.2d 769 (1978); Agneslane, Inc. v. Lucas, 247 Md. 612, 619 , 233 A.2d 757, 761 (1967). ⁴⁹ In Mayor and Aldermen of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398 , 396 A.2d 1080, 1089 (1979), we defined the substantial evidence test as ‘ “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached,” Insurance Comm’r v. Nat’l Bureau, 248 Md. 292, 309 , 236 A.2d 282 (1967), or as “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ ” Bulluck v. Pelham Apts., 283 Md. 505 , 390 A.2d 1119 (1978); Snowden v. City of Baltimore, supra, 224 Md. [443] at 448, 168 A.2d 390 .’ In applying the substantial evidence test: The question for the reviewing court is ... whether the conclusions ‘reasonably may be based upon the facts proven.’ The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.

Annapolis Waterfront Co., 284 Md. at 399 , 396 A.2d at 1089 , quoting 4 K. Davis, Administrative Law, § 29.05, 137, 139 (1958). When we review an administrative agency’s order, we make sure that it is not premised upon an error in the law. Ad + Soil, Inc. v. County Commissioners of Queen Anne’s County, 307 Md. 307, 338 , 513 A.2d 893, 909 (1986). ‘Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law.’ Belvoir Farms Homeowners Association, Inc. v. North, 355 Md. 259, 267 , 734 A.2d 227, 232 (1999), citing Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749, 753 (1998). Alviani, 365 Md. at 107-09 , 775 A.2d at 1241-42 ; see also Department of Natural Resources v. Heller, 391 Md. 148 , 892 A.2d 497 (2006); Motor Vehicle Administration v. Weller, 390 Md. 115 , 887 A.2d 1042 (2005).” Purich, 395 Md. at 706-08 , 912 A.2d at 606-07 .

Furthermore, we stated in Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981): ⁵⁰ “When the legislative body determines that other uses are compatible with the permitted uses in a use district, but that the beneficial purposes such other uses serve do not outweigh their possible adverse effect, such uses are designated as conditional or special exception uses. See City of Takoma Park v. County Bd. of Appeals for Montgomery County, 259 Md. 619, 621, 270 A.2d 772, 773 (1970); Creswell v. Baltimore Aviation Serv., Inc., 257 Md. 712, 719 , 264 A.2d 838, 842 (1970); Art. 66B, § 1.00. Such uses cannot be developed if at the particular location proposed they have an adverse effect above and beyond that ordinarily associated with such uses.” 291 Md. at 21-22 , 432 A.2d at 1330 ; see Mossburg v. Montgomery County, 107 Md.App. 1, 7-8 , 666 A.2d 1253, 1257 (1995) (“[A] special exception/conditional use in a zoning ordinance recognizes that the legislative body of a representative government has made a policy decision for all of the inhabitants of the particular governmental jurisdiction, and that the exception or use is desirable and necessary in its zoning planning provided certain standards are met.”). Judge Davidson, writing for the Court in Schultz , elucidated the proper standard in relation to special exceptions as follows: “[T]he appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone.” 291 Md. at 22-23 , 432 A.2d at 1331 (citations omitted); Harford County v. Earl E. Preston, Jr., Inc., 322 Md. 493, 499 , 588 A.2d 772, 775 (1991).

In this case, we are not concerned with the Board’s initial disposition of the case. Its determination as to whether Frisky’s was entitled to a special exception was made pursuant to the Code in effect at that time. The question presented is ⁵¹ purely one of law — whether the Circuit Court should have retrospectively applied (or remanded the case for the Board to consider) the changed Code. As such, we shall review that question of law de novo.

Nesbit v. GEICO, 382 Md. 65, 72 , 854 A.2d 879, 883 (2004).

III

Discussion We are presented in this case with the occasion to revisit Yorkdale Corporation v. Powell, 237 Md. 121 , 205 A.2d 269 (1964), 11 and those cases preceding and following it in creating an exception in land use cases to the general rule that statutes are presumed to operate prospectively. We stated the general rule in Washington Suburban Sanitary Comm’n v. Riverdale Heights Volunteer Fire Co., 308 Md. 556, 560 , 520 A.2d 1319, 1321 (1987), “[a]s a general rule, statutes are presumed to operate prospectively and are to be construed accordingly.” See State Ethics Comm’n v. Evans, 382 Md. 370, 381 , 855 A.2d 364, 370 (2004); County Council of Prince George’s County v. Collington Corporate Ctr. I Ltd. P’ship, 358 Md. 296, 305 , 747 A.2d 1219, 1223 (2000); but cf. Spielman v. State, 298 Md. 602, 607 , 471 A.2d 730, 733 (1984) (“There is ‘no absolute prohibition against retroactive application of a statute.’ ”) (quoting State Comm’n on Human Relations v. Amecom Div., 278 Md. 120, 123 , 360 A.2d 1, 4 (1976)). Yorkdale, as an exception to the general rule, provides for the retrospective application of changes to statutes that impact land use issues made during the course of litigation in land use and zoning cases.

In our Country’s early jurisprudence, Chief Justice Marshall, writing for the United States Supreme Court, in U.S. v. Schooner Peggy, 1 Cranch 103 , 5 U.S. 103 , 2 L.Ed. 49 (1801), ⁵² laid the foundation for the retrospective application of changes in a statutory scheme to ongoing litigation. There, the Court was concerned with the disposition of spoils of war. A French schooner (the Peggy) had been captured by an American ship. The Court was faced with the question, in the midst of litigation, of determining who was entitled to possession of the Peggy.

For guidance, the Court turned to a treaty. The provisions of the treaty involving the validity of the capture and resultant possession of captured ships had changed during the course of the litigation. 12 Chief Justice Marshall explicated: “It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.” 1 Cranch at 110 , 5 U.S. at 110 . 13 The Court continued: “If the law be constitutional .... I know of no court which can contest its obligation.

It is true that in mere private cases between individuals, a court -will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national ⁵³ concerns where individual rights, acquired by war, are sacrificed for national purposes, the contract, making the sacrifice, ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” Id. 14 In Yorkdale, the Court addressed a situation in which a property owner (the Yorkdale Corporation) had negotiated the reclassification of the zoning of its property in order to build an apartment building. Yorkdale also applied for a special exception and variance. The zoning commissioner granted Yorkdale’s requests, with the exception of limiting the number of units in the apartment building, i.e., the density of the zoning.

A neighboring property owner appealed the Board’s decision to the Circuit Court. There, the question was “whether the zoning ordinances ... gave the zoning officials power to grant a variance as to density.” Yorkdale, 237 Md. at 123 , 205 A.2d at 270 . The Circuit Court found that the then-current law did not authorize a variance in density. Id. at 124 , 205 A.2d at 270 .

Yorkdale appealed to the Court of Appeals and, after argument, but before a decision was issued, a bill was passed by the county council modifying the law in ⁵⁴ respect to the granting of variances as to density. Id. Upon becoming aware of this event, the Court set the case for reargument. 15 In reaching its decision, the Yorkdale Court first stated that: “Maryland consistently has followed the rule that ‘an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence,’ as Judge Markell, for the Court, repeated in Woman’s Club v. State Tax Comm., 195 Md. 16, 19 , 72 A.2d 742 (or, it may be noted, even when a judgment wrong when rendered is made right by the change in the law). See also for this proposition that a change in the law after a decision below and before final decision by the appellate Court will be applied by that Court unless vested or accrued substantive rights would be disturbed or unless the legislature shows a contrary intent, Keller v. State, 12 Md. 322 ; Day v. Day, 22 Md. 530 ; Gordy v. Prince, 175 Md. 688 , 7 A.2d 611 ; Cockerham v. Children’s Aid Society, 185 Md. 97 , 43 A.2d 197 ; and Tudor Arms Apts. v. Shaffer, 191 Md. 342 , 62 A.2d 346 .” 16 ⁵⁵ Yorkdale, 287 Md. at 124, 205 A.2d at 271 .

In discussing several zoning cases in which this rule had been applied, the Yorkdale Court stated: “It would seem to follow from the decisions in Banner [v. Home Sales Co. D., 201 Md. 425 , 94 A.2d 264 (1953) ], Lake Falls [Ass’n v. Board of Zoning Appeals of Baltimore County, 209 Md. 561 , 121 A.2d 809 (1956) ] and Grau [v. Board of Zoning Appeals of Baltimore County, 210 Md. 19 , 122 A.2d 824 (1956) ][ 17 ] that an applicant for rezoning to a more intense use of his property, who has been successful before the zoning authorities and the circuit court does not acquire a vested or substantive right which may not be wiped out by legislation which takes effect during the pendency in this Court of the appeal from the actions below.” Yorkdale, 237 Md. at 126 , 205 A.2d at 272 . Applying this reasoning to the case, and after analyzing the legislative intent of the county in its enactment of the new bill and determining that there was no evidence that the bill was not to be subject to retrospective application, the Yorkdale Court held that the change in the zoning law had made the case decided under the old law moot. Because the amended law had come into effect during the course of litigation (i.e., while the appeal was pending and before a final judgment) the ⁵⁶ Court applied it retrospectively and dismissed Yorkdale’s appeal. Yorkdale, 237 Md. at 133 , 205 A.2d at 276 .

Following the Court’s decision in Yorkdale, we have affirmed those principles in relation to land use and zoning cases several times. In Mandel v. Board of County Cormn’rs of Howard County, 238 Md. 208, 214 , 208 A.2d 710, 714 (1965), the property owners “had applied to the Board to use their respective properties for high-rise apartments under the zoning regulations then existing.” During the course of litigation, the pertinent zoning regulations were changed to disallow high-rise apartments. Applying the Yorkdale rule, the Court decided against the property owners and held that: “[T]his case is to be determined under the law as it now exists, that the appellants had not secured a final decree establishing their rights to use their properties for the use permitted under the former classification, that they had no vested rights, and that the change in the regulations is not invalid because it eliminates the proposed use.” Mandel, 238 Md. at 215 , 208 A.2d at 714 . Additionally, the Court stated that: “[I]t is clear that the Board, as a legislative body, if its action is otherwise in accordance with law, can validly change a zoning regulation, even though the effect of its action is to eliminate any inchoate rights, which property owners may have asserted in pending appeals from adverse administrative determinations under the pre-existing regulations.” Id. at 216 , 208 A.2d at 715 .

Furthermore, “[u]nder the Yorkdale rule, the Board’s legislative act, if otherwise valid, eliminated any rights which the appellants had to use their property for high-rise apartments under the pre-existing zoning regulations.” Mandel, 238 Md. at 217 , 208 A.2d at 715-16 . In Marathon Builders, Inc. v. Montgomery County Planning Board, 246 Md. 187 , 227 A.2d 755 (1967), we addressed the impact of a change to the overall zoning ordinance during the course of litigation. After referencing the holding in Mandel , we stated: ⁵⁷ “Certainly if such a change in classification has the effect of extinguishing existing rights during the pendency of an appeal involving the exercise of rights under a former classification, a fortiori a change in classification as a result of the passage of a comprehensive rezoning ordinance would have at least the equal effect of terminating any rights unexercised as of the effective date of the change in classification. This Court has made frequent declarations in zoning cases that courts are bound to decide cases according to existing laws.

Yorkdale v. Powell, 237 Md. 121 , 205 A.2d 269 (1964).” Marathon Builders, 246 Md. at 194 , 227 A.2d at 758 . In Springloch Area Citizens Group v. Montgomery County Board of Appeals, 252 Md. 717, 723 , 251 A.2d 357, 360 (1969), citing to Yorkdale and Mandel , we stated: “[T]his Court is bound to decide a zoning case according to the laws existing at the time the decision is rendered unless vested rights have intervened.... ” And, in Dal Maso v. Board of County Comm’rs for Prince George’s County, 264 Md. 691, 694 , 288 A.2d 119, 121 (1972), we stated that “we have held that a zoning case must be decided upon the law applicable at the time the case is before us, in the absence of intervening vested rights.... ” We had further occasion to address this issue in Anne Arundel County v. Maragousis, 268 Md. 131 , 299 A.2d 797 (1973). The Maragousises had purchased a piece of property that was subject to a rezoning after their purchase. They brought an action in the Circuit Court and then appealed that verdict to this Court.

After the case had been appealed, but prior to any decision being issued, the County amended the zoning ordinance. We stated: “It has consistently been our policy to consider zoning cases on the state of the substantive law as it exists when the case is argued before us, Dal Maso v. Board of County Comm’rs, 264 Md. 691, 694 , 288 A.2d 119 (1972); Mandel v. Board of County Comm’rs, 238 Md. 208, 215 , 208 A.2d 710 (1965); Yorkdale Corporation v. Powell, 237 Md. 121 , 124- ⁵⁸ 28, 205 A.2d 269 (1964),[ 18 ] and compare Springloch Area Citizens Group v. Montgomery County Board of Appeals, 252 Md. 717, 723 , 251 A.2d 357 (1969). The amendment of [the statutes] marked the opening of an entirely new ball game, because the uses permitted by [the new statutes] were obviously much wider in scope.” Maragousis, 268 Md. at 139 , 299 A.2d at 802 . The County also conceded that some of the uses allowed under the rezoning had changed.

We continued, stating that, “[s]ince neither this concessum nor [the new Bill] was before the lower court, the whole picture has been drastically altered.” Id. at 140 , 299 A.2d at 802 . As a result of this determination and the Yorkdale rule, we remanded the case for reconsideration under the new law. Yorkdale and its progeny have never been overruled. 19 They are still good law and are determinative in evaluating whether, in a land use or zoning case, a change in statutory law taking place during the course of a litigated issue should have retrospective application. As discussed supra, we shall consider zoning cases based upon the law as it exists at the time the case is before us., The respondents argue that, after the Court’s decision in Washington Suburban Sanitary Commission v. Riverdale Heights Volunteer Fire Co., 308 Md. 556 , 520 A.2d 1319 (1987), Yorkdale is no longer viable.

We disagree. Before we discuss Riverdale directly, we look to Janda v. General Motors Corp., 237 Md. 161 , 205 A.2d 228 (1964). The Janda opinion was issued by the Court of Appeals on the same day as Yorkdale and penned by the same judge. Thus, there can be ⁵⁹ little argument that the Court rendered the opinions without a realization of their full effect.

In Janda , we addressed a change in the State’s unemployment law. There, a number of employees were denied unemployment insurance benefits for a week in January of 1963. Those employees appealed the denial to the Board of Appeals, which, on August 21, 1963, affirmed the initial denial. The facts of the case show that there was a collective bargaining agreement between the employees and General Motors in effect from September 20, 1961, through August 31, 1964.

During the course of the litigation, a statute governing unemployment insurance benefits in 1961, was repealed and reenacted in 1963. The 1963 statute specifically provided that benefits to be paid under a contract in force prior to the reenactment should be continued. The Janda Court stated, in pertinent part: “Many of the reasons that led us to conclude that the Legislature intended in 1961 to make extra pay in lieu of vacation a bar to benefits lead us to conclude the 1963 act operates to remove that bar where the allowance in lieu of vacation is paid by the employer under and during the term of a written contract in effect on December 6, 1962, and the ‘normal practice’ of the employer was not to grant a vacation with pay. December 6, 1962, was the day the 1961 act first took effect (it having been in suspended animation since June 1, 1961, its stated effective date, because it had been put to referendum).

Prior to that day extra pay in lieu of vacation had not been a bar to benefits. We