Posted by: Patricia Salkin | November 30, 2009

Retroactive Effect of Substantive Changes in Zoning Leads to Remand over Proposed Horse Rescue Facility

Scrimgeour, an adjoining landowner to a 166-acre property in Talbot County currently owned by Fox Harbor, but previously owned by Mrs. Smith, challenged the issuance of a certificate to build a structure with 42,835 square feet of floor area on the property.  The structure was intended to be used as a facility for caring for “rescue” horses, essentially a foster care home for unwanted horses.  Mr. Scrimgeour contends that the size of the structure was too large to be “accessory to” a residential or agricultural use of the property.  After a 3-day hearing in March and April of 2007, the Talbot County Board of Appeals upheld the issuance of the building permit, as either a permissible accessory residential or accessory agricultural structure under the then existing local zoning ordinance. 

Scrimgeour sought judicial review in the Circuit Court for Talbot County, which affirmed the Talbot County Board of Appeals decision, and another appeal followed to the Maryland high court. After certiorari had been granted, but before oral argument, the Talbot County Zoning Code was amended to include new zoning districts, revised definitions of “accessory structure,” “accessory use,” and “stable,” and a revised Table of Uses, specifically, the contents under the heading “Agricultural Uses and Structures, Accessory.” The amended code was to become effective five days after oral argument.

The Court of Appeals held that because Layton v. Howard County Board of Appeals, 399 Md. 36, 922 A.2d 576 (2007), applied regarding the retrospective effect of substantive changes in relevant statutory law that took place during the course of litigation in this land use and zoning matter, the Court elected not to address the substantive question regarding the structure raised in the case and instead remanded the case to the Talbot County Board of Appeals for consideration and determination of the effect of the new code on the dispute.

Scrimgeour v. Fox Harbor, LLC, 2009 WL 2591258 (MD 8/25/2009)

The opinion can be accessed at:  http://www.courts.state.md.us/opinions/coa/2009/150a08.pdf


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