Judge overturns elder-care ruling

March 06, 1997


Staff Writer

Washington County Circuit Judge Daniel W. Moylan has overturned a controversial decision by the county Board of Zoning Appeals to allow elder-care businesses in a residential neighborhood in Hagerstown's North End.

In his ruling, Moylan said that under the law, Zoning Administrator Paul Prodonovich didn't have the power to decide whether elder-care was permitted in residential neighborhoods, or to deny the neighbors' request that he enforce the law.

Prodonovich Thursday would not comment on Moylan's ruling. He said he had not yet read the decision.

Moylan's ruling came seven months after Helen M. Karn, of 12921 Cathedral Ave., closed the two elder-care businesses in question. She operated one out of her home, and another at 12813 The Terrace.


Both neighborhoods are zoned residential urban.

Karn said Thursday that she closed down in August, and doesn't plan on reopening. She said she couldn't say whether the court fight played a role in her decision.

Karn said confidentiality laws kept her from saying where the elderly people who were staying there went.

The controversy began last year when Karn asked Prodonovich whether she needed to apply for a variance or special exception to open her businesses.

Prodonovich told her she needed no special permission, because he felt elder-care was a permitted use under residential zoning laws. He compared it to a homeowner renting out part of a single-family dwelling to boarders.

Karn opened her businesses. Neighbors complained last summer, saying they didn't think elder-care businesses should be allowed in a residential neighborhood, and asked Prodonovich to enforce the law.

Prodonovich told them he disagreed, and they could file an appeal if they wanted.

They appealed, and the zoning appeals board later voted 4-0 to uphold Prodonovich.

The neighbors then took their case to circuit court.

Moylan, in his ruling, said although the zoning administrator has the power to issue routine permits or licenses, he doesn't have the power to interpret laws.

Moylan said that "nowhere in the ordinance is the zoning administrator granted the decision-making authority" about whether to enforce a law.

Moylan wrote that under Prodonovich's interpretation of the zoning laws, anyone who wanted would have the right to open as many elder-care homes as they wanted in any neighborhood.

Moylan said although maybe that's what the law should be, that's not was it is.

He said retirement, nursing and boarding homes are allowed in residential urban districts as special exception uses. If a request for a special exception is made, the zoning board must make a decision on whether to grant the exception after a public hearing is held on the issue, he said.

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