Agenda - Planning Commission - 10/07/2010

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66 September 10, 2010 I Volume 4 I No. 17 Zoning Bulletin should not be applied retrospectively to the variance application — which had now been granted (in part) by the Board. The trial court agreed with DCW and dismissed the case. It held that the 2008 Amendments should only be applied prospectively. The Commission appealed. It argued that the 2008 Amendments ap- plied to critical area violations in litigation (e.g., such as DCW's vari- ance applications) at the time that the amendments took effect. DECISION: Affirmed The Court of Appeals of Maryland held that the 2008 Amendments to the Critical Area Law applied prospectively to situations where an underlying violation predated the amendment. In so holding, the court explained that, generally, all "statutes are presumed to operate prospectively." This is because retrospective appli- cation of new laws is "usually unfair." However, the court noted that there was "no absolute prohibition against retroactive application of a statute." A statute expressly indicating that it was to be applied retro- spectively, or one for which the court construed the legislature intended it be applied retrospectively, would be applied retrospectively. Further- more, there was, emphasized the court, an exception to the general rule of applying a statute prospectively: in the context Of zoning or land use matters, a substantive change to a statute during the course of litigation (and before any substantive rights vest) will be applied retrospectively — unless the legislature's intent is otherwise. A procedural change, how- ever, will not be applied retrospectively. Here, the Commission had argued that the 2008 Amendments should have been applied retrospectively to DCW's variance applications because "they affected a substantive change in that they established new duties and obligations that both property owners and local jurisdictions must satisfy before a property owner may obtain a variance." DCW counter- argued that the 2008 Amendments represented procedural, rather than substantive, changes, since the amendments did not change the standards by which the Board would approve or disapprove a variance. The court of appeals studied the language of the 2008 Amendments and agreed with DCW. It found that the legislature intended for the 2008 Amendments to be applied prospectively to situations where an underly- ing violation of the Critical Area Law predated the amendments. Since Wagner's and DCW's "misconduct pre -dated the effective date of the [2008] amendment," the court concluded that the 2008 Amendments did not apply to DCW's variance applications. Accordingly, the court af- firmed the trial court's dismissal of the Commission's action. See also: Yorkdale Corp. v. Powell, 237 Md. 121, 205 A.2d 269 (1964 4 © 2010 Thomson Reuters