# Layton v. Howard County Board of Appeals

> Court of Appeals of Maryland · May 9, 2007 · 399 Md. 36

URL: https://www.frixlaw.com/law-library/cases/9711303

## Case

- **Full name:** Colleen LAYTON, Et Al. v. HOWARD COUNTY BOARD of APPEALS, Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** May 9, 2007
- **Citations:** 399 Md. 36; 922 A.2d 576
- **Precedential status:** Published
- **Opinion:** Dissent by Wilner
- **Judges:** Bell, Raker, Cathell, Harrell, Battaglia, Greene, Wilner
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711303

## How later opinions describe it (automated extraction)

- stating that in a land use or zoning case, "a change in statutory law taking place during the course of a litigated issue should have retro spective application”
- discussing continued authority of Janda and Yorkdale Corp. v. Powell, 237 Md. 121, 205 A.2d 269 (1964) in the context of zoning and land use— holding that changes in zoning law applied retroactively

## Opinion text

Dissenting Opinion by
WILNER, J.
With respect, I dissent. As Judge Cathell’s opinion points out, there is, indeed, case law to support the conclusion that zoning cases have been treated somewhat differently than other kinds of cases in determining the effect to be given to a change in statutory law while a matter is pending in court. I therefore cannot fault the Court’s reliance on those cases in continuing to carve out a special exception — no pun intended — for zoning, or even broader land use, cases.
My problem is that I can find no practical or jurisprudential basis for such a distinction, and the Court offers none. The issue is always presented when a legislature changes a law whether that change, from and after its declared effective date, should apply to matters already in litigation when the law takes effect. On the one hand, as Chief Justice Marshall observed in the Schooner Peggy case, there is a certain anomaly in a court’s failure to apply the law that is in effect when it decides the case, for the effect of that is to render a judicial decision that is not supported by existing law. On the other hand, there is a certain unfairness in applying laws retroactively, at least where, as part of its legitimate declaration of public policy, the legislative body has not clearly indicated an intent that they be so applied. In both commerce and personal dealings, people and entities necessarily rely on existing law to guide their conduct and their transactions, and that necessary and permissible reliance — that certainty — is seriously jeopardized when the rules are changed in the middle of the game.
The general rules that we have adopted attempt to balance those considerations. As an overarching principle, subject only to Constitutional imperatives, we have left it to the *72 legislative body to determine whether statutory changes should be applied to matters already in litigation. If the legislature declares that a new law should be so applied and there is no Constitutional impediment to such application, we respect the legislative judgment and apply the new law as the legislature intended. The problem arises when there is no such expressed intent — when all that we have is an effective date of the law and nothing more. In those situations, we have generally applied the principle that, if the change is o ne of procedure only, we will apply the new law even if doing so would produce a different result than not doing so. If the change affects substance, however, we will not apply the new law, at least if doing so would produce a different result. In that circumstance, we do not permit the rules to be changed mid-stream.
Those distinctions are not perfect; they can, and sometimes do, result in what may appear to be an injustice in a given case, and it is not always clear whether a change is merely procedural or also affects substance. But, on the whole, the distinctions are reasonable, and they have a solid jurisprudential basis. When we start carving out categorical exceptions to them, however, both their rationality and their jurisprudential basis are eroded. Why just zoning or land use cases? What is so special about them? They involve property, but only real property. Is real property somehow more, or less, sacred than other kinds of property, including contractual rights? I would be more inclined to bless the Court’s opinion in this case if it offered any legitimate reason for drawing a distinction between zoning cases and other kinds of cases. Unfortunately, however, it does not. I would therefore overrule the prior case law relied upon by the Court and affirm the judgment of the Court of Special Appeals.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711303. Public record. Not legal advice.