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."
The appellants contend that the premises cannot be used as a home for retarded adults unless BARC obtains
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
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
Under the facts we have just recited and the applicable ordinances, the Kastendikes contend in their brief that:
We shall discuss these issues in the order in which appellants present them.
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
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. Bradyhouse, 177 Md. 245, 9 A.2d 751 (1939). See also Annot., 9 A.L.R.2d 1039 (1950). Though Green and Parr are
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 the type of patients cared for are inconsequential.
We, therefore, conclude that, since the premises had been lawfully established as a nursing home by the Gaddis sisters by 1946 and has continued to be used as such since then, when BARC purchased the home in 1970, it did not need to obtain the assent of the Mayor and City Council under Article 12, § 1 in order to continue that use.
Appellants next contend that under the new, 1971 Baltimore City zoning ordinance, No. 1051, BARC was required to obtain assent of the Mayor and City Council before utilizing the premises as a nursing home. It is further claimed by the Kastendikes that the nursing home is not a non-conforming use as it was not lawfully established
On April 20, 1971 this entirely new comprehensive zoning ordinance was approved for Baltimore City. Under this ordinance the City was divided into ten residence districts, an office-residence district, five business districts, and three industrial districts. The permitted, accessory, and conditional uses allowed in each district are specified and all others are excluded. This is exactly opposite from the 1931 ordinance which permitted everything that was not excluded. The property owned by BARC is located in an R-1 or single family residence district. In Part B, § 4.1-1 use regulations for an R-1 zone are specified. Subsection d thereof, in part, states that:
A "convalescent, nursing, and rest home" is defined in § 13.0-2 16 as:
This definition encompasses BARC's operation. The assent requirement of the zoning ordinance is found at § 11.0-6d and specifies that:
However, Chapter 8 of the ordinance makes provision for the continuance of non-conforming uses, which is defined in § 13.0-2 54 of Chapter 13 as: "any lawfully existing use of a building or other structure or of land which does not conform to the applicable use regulations of the district in which it is located." If under the 1931 zoning ordinance this nursing home was lawfully established, then, under Chapter 8, it may continue as a non-conforming use and no assent is required for designation as a conditional use.
Appellants submit that this nursing home does not exist as a lawful non-conforming use as it was not "lawfully existing" under the provisions of the 1931 zoning ordinance. That ordinance permitted all uses in a residential use district except for the 44 excluded uses listed in paragraph 8. In the case of Parr v. Bradyhouse, 177 Md. 245, 247, 9 A.2d 751 (1939), we characterized this list as the "forty-four businesses excluded from a residential use district," and we indicated that if the Mayor and City Council overlooked or never thought of adding a particular exclusion to the list, they should not ask this Court to write the exception or omission made by them into their ordinance. Clearly, a nursing, convalescent, care, or rest home is not explicitly excluded by the list. But the Kastendikes argue that such homes are
The word "business" has a very broad significance and a great variety of meanings and the precise meaning of the word depends on how it is defined in the ordinance or the context in which it is used. Unfortunately, the word is nowhere defined in the 1931 ordinance. Therefore, we must garner the intent of the City Council from the context in which the word is used and from its ordinary and customary meaning. Zurich Insur. Co. v. Friedlander, 261 Md. 612, 276 A.2d 658 (1971). As we said in Zurich, supra at 616:
In different contexts, the word "business" may mean different things. For example, it is clearly established that hospital records are admissible into evidence under proper circumstances as a "business" record. See Snyder v. Cearfoss, 190 Md. 151, 57 A.2d 786 (1948); Art. 35, § 59, Code (1957, 1971 Repl. Vol.) where for purposes of evidential proof by written records, "`business' shall include business, profession, occupation and calling of every kind." Therefore, while a hospital or nursing home may be considered as a business in some contexts, we must determine if that was intended here. See 101 C.J.S. Zoning § 164 (1958).
In the 1931 ordinance, "business" is listed with 43 other excluded activities all of which except for correctional or penal institutions are commercial establishments. While we must profess some bewilderment as to why the word "business" without further explanation was included on the list, we do not think its presence on the list is dispositive of this case. We conclude that "business", as here used, must refer to commercial or mercantile businesses similar to the others on the list using the word "business," e.g., "library, or club, the chief activity of which is a service customarily carried on as a business, undertaking business, the following places of business where services are rendered: clothes pressing, beauty parlor, barber shop, photographic establishment, printing establishment, radio shop, shoe repair shop, poultry killing or dressing, cat or dog hospital, automobile or storage battery service station." If "business" was to be all inclusive, it would have been unnecessary to list all the other exclusions. Additionally, those people charged with enforcing the zoning ordinance did not consider nursing homes excluded from residential use districts as the evidence here shows that 80% of the nursing homes licensed by the State Department of Health and Mental Hygiene were located in residential areas, and more than 50% of these were expressly
If we find that this non-conforming use was not abandoned but was continuously operated without extension until the time the new ordinance was approved, then no assent was necessary and Judge Cardin was correct in allowing BARC to use the home as a care and treatment facility for retarded adults. There is ample evidence in the record to justify a finding that from its establishment in 1946 until late December 1970, when Encore left the premises to make room for BARC, the premises was continually used as a nursing home. Appellants contend, however, that BARC abandoned that use. We do not agree. Section 8.0-4 f of the new zoning ordinance states:
Here, no 12 month discontinuance of use took place. In fact, despite hindrance by the institution of this suit one month after the settlement date of February 5, 1971, and the need for certain internal repairs, the first resident moved into the house in September 1971. As this period is within the 12 months allowed by the ordinance before a non-conforming use is statutorily deemed abandoned, there must be proof of actual abandonment as defined in the statute to justify a termination of BARC's right to carry on such a use. No such proof is offered. Therefore, since the use as a nursing home from 1946 until BARC started operation was continuous and was never abandoned, the lawfully existing non-conforming use is permitted under the new zoning ordinance. Neither the change in ownership nor change from treatment of the aged or alcoholic to care of the mentally retarded
Appellants make one last thrust in an effort to parry defeat. They claim that since BARC was not in actual operation on April 20, 1971, when the new ordinance was passed, then it cannot be considered as a non-conforming use. The Kastendikes rely on our holding in Harris Used Car v. Anne Arundel Co., 257 Md. 412, 263 A.2d 520 (1970) as support for their position. While we do not retreat from our holding in Harris that "a mere intention to use is not enough to establish a non-conforming use," we think that case is clearly distinguishable. There, this Court found that the chancellor was not clearly erroneous in concluding that the subject land was not being used as a non-conforming use on the day of enactment of the zoning ordinance as any such use had been abandoned several years before the effective date of the ordinance. We conclude that rather than being controlled by Harris, the case of Higgins v. City of Baltimore, 206 Md. 89, 110 A.2d 503 (1955), is dispositive of the issue now before us. A paraphrase of our observation in Higgins, supra at 100, is appropriate here — the appellee had gone far beyond the "expectation" stage of continuing this use and if BARC had not completely consummated its permitted change to a care home for mentally retarded adults prior to the adoption of Ordinance No. 1051, of April 20, 1971, it seems a reasonable inference that the institution of this suit may have prevented it.
In sum, we conclude that the trial court was correct in denying the relief sought by the Kastendikes and we, therefore, affirm its decision.
Order affirmed. Costs to be paid by appellants.