Can a Maryland county require owners of existing, already-built swimming pools to add fencing after the fact?

Plain-English summary

Calvert County's Administrative Director asked the Attorney General whether the Board of County Commissioners could require fencing for swimming pools that had already been built before a 1980 county building code amendment started requiring fences on new pools. The opinion concluded the county had that authority. It found no constitutional due process problem with applying the fencing requirement retroactively, because owners of unfenced pools never acquired a "vested right" to keep a safety hazard unregulated, and unfenced pools posed a real danger, particularly to young children, that fell within the government's police power to prevent. The opinion also found the county had ample statutory authority to act, through its nuisance-abatement powers, its building code powers, and especially its zoning authority, any one of which the opinion said would support requiring existing pools to be fenced.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article 25, Article 43, and Article 66B of the 1982 Maryland Code, along with due process case law as it stood at the time. Maryland's county code articles have since been substantially recodified into the Local Government Article and other titles, and swimming pool safety regulation has continued to develop. Anyone researching a current Maryland county's authority to regulate existing swimming pools should verify the current statutory citations and any more recent case law rather than relying on this opinion's 1982 analysis.

Common questions

Does a county violate due process by requiring safety upgrades on something that was legal when built?
Not necessarily, according to this opinion. It explained that Maryland courts recognize no absolute bar on retroactive regulation, and that a property owner has no "vested right" to keep using property in a way that endangers public safety, citing Kahl v. Consolidated Gas, Electric Light & Power Co. and Walker v. County Commissioners. Because unfenced pools posed a real danger, the opinion found requiring existing pools to be fenced was a reasonable safety measure, not an unconstitutional taking of a vested right.

Did the county need to give pool owners time to comply?
The opinion suggested yes, as a matter of fundamental fairness even if not strict constitutional necessity. Its own footnote recommended that Calvert County provide a "phase-in" period for owners of existing unfenced pools, drawing an analogy to a separate state law that gave junkyard owners eighteen months to comply with a new fencing requirement.

What specific legal powers let the county do this?
The opinion identified three independent sources of authority: the county's power to prevent and remove nuisances and adopt building codes under Article 25, its authority as the local board of health to regulate nuisances under Article 43, and, what the opinion called the strongest authority of all, its zoning power under Article 66B, which the Court of Appeals had already read broadly to give county commissioners "the full measure of power which the State could exercise" to promote health and safety.

Had other Maryland local governments required pool fencing before?
Yes. The opinion's own footnote lists several existing Maryland zoning ordinances, in Dorchester County, Chestertown, and St. Michael's, that already contained swimming pool fencing requirements, though it noted none of those specifically addressed whether the requirement applied retroactively to pools built before the ordinance.

Background and statutory framework

Calvert County had amended its building code in 1979 to require fencing for swimming pools constructed or installed after May 1980, and the Board of County Commissioners was considering extending that fencing requirement to pools built before that date as well, to provide additional protection against accidents. The threshold question was constitutional: whether requiring fencing for already-built pools would violate the Due Process Clauses of the federal and Maryland constitutions by depriving owners of a vested right in their unfenced pools.

The opinion answered that question no, relying on Kahl v. Consolidated Gas, Electric Light & Power Co., where the Court of Appeals held a power company had no vested right to install transmission lines without a permit simply because it had purchased materials before a zoning ordinance began requiring one. Applying similar reasoning, the opinion concluded that unfenced swimming pools pose a potential danger to the public, particularly children, which the state's police power may regulate regardless of when the pool was built, quoting the Court of Appeals' statement in Walker v. County Commissioners that "all uses of property which are injurious to the health, comfort, safety and welfare of society may be prohibited under the sovereign power of the state, even though the exercise of such power results in inconvenience or loss to certain persons." The opinion also drew an analogy to Article 25, section 122C, which required Calvert County junkyards, including those already existing, to be fenced or screened within eighteen months of the law's effective date, reasoning that if a junkyard owner could be required to fence for aesthetic reasons, a pool owner could certainly be required to fence for public safety. A footnote recommended the county nonetheless provide a similar phase-in period for existing pool owners as a matter of fundamental fairness.

Turning to statutory authority, the opinion identified three independent grants of power supporting the fencing requirement. First, Article 25, section 3(n) gives county commissioners power to prevent and remove nuisances, and the opinion concluded unfenced pools could reasonably be regarded as public nuisances under the broad definition of that term recognized in Hart v. Wagner ("everything that endangers life or health, gives offense to the senses, violates the laws of decency or obstructs the reasonable and comfortable use of property"), reinforced by the county's separate authority as a local board of health under Article 43, sections 45 and 48 to adopt rules concerning nuisances. Second, the county's building code authority under Article 25, section 3(s)(2) supported fencing requirements, since building codes could incorporate broader model codes covering appurtenances like pools, and section 3(t)(1) separately authorized inspection and safety requirements for structures generally. Third, and in the opinion's view the strongest authority, the county's zoning power under Article 66B, sections 4.01 through 4.03 authorized regulating and restricting the construction, use, and maintenance of structures to promote health, safety, and general welfare, an authority the Court of Appeals in Harbor Island Marina, Inc. v. County Commissioners had already construed broadly as giving Calvert County "the full measure of power which the State could exercise" toward that end.

Citations

Statutes:

• U.S. Const. amend. XIV, §1
• Md. Declaration of Rights art. 24
• Article 25, §122C
• Article 25, §122C(d)
• Article 25, §3(n)
• Article 25, §3(s)(2)
• Article 25, §3(s)(2)(ii)
• Article 25, §3(s)(2)(iii)
• Article 25, §3(s)(2)(iv)
• Article 25, §3(t)(1)
• Article 43, §45
• Article 43, §48
• Article 66B, §4.01(a)
• Article 66B, §4.02
• Article 66B, §4.03
• Md. Const. art. VII, §1

Cases:

• State Commission on Human Relations v. Amecom Division, 278 Md. 120, 123 (1976)
• Kahl v. Consolidated Gas, Electric Light & Power Co., 191 Md. 249 (1948)
• Walker v. County Commissioners, 208 Md. 72, 87 (1955)
• Carney v. Baltimore, 201 Md. 130, 134-35 (1952)
• Commissioners v. Phillips Packing Co., 207 Md. 12, 18 (1955)
• Kelch v. Keehn, 183 Md. 140, 144 (1944)
• Hart v. Wagner, 184 Md. 40, 46 (1944)
• Mount Airy v. Sappington, 195 Md. 259, 263 (1950)
• Harbor Island Marina, Inc. v. County Commissioners, 286 Md. 303, 312 (1979)
• Rigger v. Baltimore County, 269 Md. 306, 310 (1973)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government—Commissioner Counties—Building Codes—Zoning—Regulation of Nuisances—Due Process—County May Require Fencing of Existing Swimming Pools

May 4, 1982

Mr. Jack G. Upton
Administrative Director
Board of County Commissioners
of Calvert County

On behalf of the Board of County Commissioners of Calvert County, you have asked for our opinion on the authority of the Commissioners to require the fencing of swimming pools constructed or installed in Calvert County before May, 1980. We understand that 1979 amendments to the County Building Code require the fencing of pools constructed or installed in the County after May, 1980. The Commissioners are now considering an expansion of this fencing requirement to provide additional protection against tragic accidents.

In our opinion, the Commissioners have the requisite authority to do so.

I
Due Process Considerations

The threshold issue underlying your inquiry is one of constitutional dimension: Can the Commissioners impose a regulation that will retroactively affect structures that were lawfully constructed or installed before May, 1980? The Court of Appeals has stated that there is no absolute prohibition against retroactive application of a statute, as long as constitutional prohibitions are not violated. State Commission on Human Relations v. Amecom Division, 278 Md. 120, 123 (1976). We must first decide, then, whether the regulation contemplated by the Commissioners would deprive the owners of existing, unfenced pools of vested rights, in violation of the Due Process Clauses of the Maryland and United States Constitutions.1 We think not.

1 United States Constitution, Amendment XIV, §1 ("nor shall any State deprive any person of life, liberty, or property, without due process of law"); Maryland Declaration of Rights, Article 24 ("no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land").

The relevant legal principles were discussed and applied in Kahl v. Consolidated Gas, Electric Light & Power Co., 191 Md. 249 (1948). In that case, a power company contended that Baltimore County could not constitutionally require it to obtain a special permit before installing overhead transmission lines. When the company had acquired the land and purchased the materials for the lines, the county zoning ordinance did not require any permit. However, before the lines were actually installed, the zoning ordinance had been amended to require this permit. The company argued that requiring it to obtain a permit under the amended ordinance would violate its rights under the Due Process Clause. In the Court's view, the determinative question was whether the power company had acquired vested rights to proceed without a permit. The Court ruled that it had not. It noted that questions of whether vested rights have been acquired must be determined by the facts of the particular case. Id., 191 Md. at 260.

In the circumstances posed by your inquiry, the fundamental question is whether owners of swimming pools constructed or installed in Calvert County before May, 1980, have acquired a vested right to maintain their pools free from fencing. We do not believe that the courts would recognize the existence of any such vested right. It seems clear that unfenced swimming pools pose a potential danger to the public (particularly to young children), which may be regulated under the police power of the State. As the Court of Appeals of Maryland has emphasized:

"[A]ll uses of property which are injurious to the health, comfort, safety and welfare of society may be prohibited under the sovereign power of the state, even though the exercise of such power results in inconvenience or loss to certain persons. In those cases, individual rights are subordinate to the higher rights of the public." Walker v. County Commissioners, 208 Md. 72, 87 (1955).

See also Carney v. Baltimore, 201 Md. 130, 134-35 (1952). And see Commissioners v. Phillips Packing Co., 207 Md. 12, 18 (1955) (dicta: "a reasonable sanitary regulation can be made effective as to existing structures").

In sum, one cannot obtain a vested right to maintain, forever unfettered by reasonable governmental regulation, a hazard to public safety. Thus, to the extent that the General Assembly has delegated to the County the State's police power in such matters (see Part II of this Opinion), Calvert County may adopt reasonable regulations to govern the maintenance of existing pools in a safe manner.

In this regard, it is important to keep in mind that the County Commissioners of Calvert County are not seeking to deprive the owners of unfenced pools of all right to maintain and use their pools; they are merely seeking to require the erection of fences for safety purposes. We do not believe that this relatively minor infringement on property rights, one clearly justified for the protection of public safety, rises to constitutional proportions. It is only substantial rights that enjoy constitutional protection. See Kelch v. Keehn, 183 Md. 140, 144 (1944).

Such exercise of the police power is not at all unprecedented. For example, Article 25, §122C of the Maryland Code requires the owners or operators of certain junkyards in Calvert County to screen or fence the junkyards, so that they are not visible from roads or highways. Section 122C(d) expressly provides that "[t]he provisions of this section shall apply to all junkyards . . . created after June 1, 1967 [the effective date of the legislation], and shall also apply to all such junkyards [that is, to junkyards created on or before June 1, 1967] . . . eighteen (18) months after June 1, 1967". The General Assembly clearly felt that it could make the fencing requirement of §122C retroactive, as long as it gave owners of existing junkyards an adequate period of time to comply.2 If the owner of a junkyard may be compelled to erect a fence to serve primarily aesthetic interests of the public, the owner of a swimming pool should be subject to similar local requirements designed to serve a much more traditional public safety objective.

2 We think that fundamental fairness, if not due process considerations, would require the Calvert County Commissioners to provide a similar "phase-in" period to enable owners of existing unfenced pools to comply with any new fencing requirements.

II
Statutory Authorization

Since we conclude that there is no basic constitutional objection to the legislation you suggest, the only remaining question is whether the General Assembly has authorized the Board of County Commissioners of Calvert County to exercise the State's police power in this subject matter area, namely, to regulate the construction, installation, and maintenance of swimming pools. At least three statutory sources of authority are potentially applicable: Article 25, §3 of the Maryland Code (enumerated powers of county commissioners); Article 43, §45 et seq. of the Maryland Code (county commissioners as local boards of health); and Article 66B, §4.01 et seq. of the Maryland Code (zoning authority of noncharter counties and municipal corporations).3

3 The Maryland Constitution provides only that the powers and duties of county commissioners "shall be such as now or may be hereafter prescribed by law". Article VII, §1. We have examined the Code of Public Local Laws of Calvert County and find no applicable provisions.

With respect to the first of these, Article 25, §3(n) provides county commissioners with the express power "[t]o prevent and remove nuisances" and "to approve the location of . . . places which may involve or give rise to . . . conditions detrimental to health". Section 3(s)(2) provides the county commissioners of Calvert and five other counties with power to adopt and amend building or housing codes: under subsection (s)(2)(ii), any building code "shall provide and prescribe regulations for the issuance of building permits to be required prior to the construction or improvement of any buildings" and "shall prescribe standards of construction, maintenance, and repair"; and, under subsection (s)(2)(iii), all regulations under the building code "shall be designed to assure and protect the public health, safety, comfort, and moral and economic welfare". Finally, under §3(t)(1), county commissioners may "authorize and require the inspection of all buildings and structures and . . . authorize the condemnation thereof as provided under public general laws . . . when dangerous or insecure, and ... require that such buildings and structures be made safe or be taken down".

Somewhat similar to the powers enumerated in Article 25, §3(n) is the power set out in Article 43. Under Article 43, §45, the board of county commissioners of a noncharter county also serves as the local board of health. Section 48, in turn, enables local boards of health to "adopt and enforce all needful rules and regulations concerning nuisances" within the limits of their jurisdiction.

In our view, unfenced swimming pools may reasonably be regarded by Calvert County as public nuisances and threats to public health and safety. The Court of Appeals of Maryland has said that the term "nuisance" extends to "everything that endangers life or health, gives offense to the senses, violates the laws of decency or obstructs the reasonable and comfortable use of property". Hart v. Wagner, 184 Md. 40, 46 (1944). Likewise, Black's Law Dictionary 961 (rev. 5th ed. 1979) defines "nuisance" as "[e]verything that endangers life or health, gives offense to senses, violates the laws of decency, or obstructs reasonable and comfortable use of property". The Court of Appeals has indicated that local power to abate nuisances is broad. See Mount Airy v. Sappington, 195 Md. 259, 263 (1950) (power to prevent and abate nuisances is generally and liberally conferred on municipal corporations). Accordingly, we believe that the Board of County Commissioners of Calvert County may require the fencing of pools under its Article 25, §3(n) or its Article 43, §48 powers.

We also believe that the County may impose fencing requirements in its building code, as indeed it has done, under Article 25, §3(s)(2). This statutory grant of authority permits local regulations on the general subject matter of building construction. Although §3(s)(2) does not specifically mention any structures other than buildings, §3(s)(2)(iv) permits a local building code to incorporate by reference a portion or all of a building code made available for general circulation by any governmental agency or by any trade or professional association.4 We understand that generally circulated building codes often reach beyond strict building construction to the construction of appurtenances such as swimming pools, and we therefore believe that county codes adopted under §3(s)(2) may reach these appurtenances.

4 Calvert County's current building code incorporates provisions of the Standard Building Code of the Southern Standard Building Code Congress International.

Section 3(t)(1) of Article 25 specifically extends to structures other than buildings. It enables county commissioners to provide for the inspection of "buildings and structures" and to require that dangerous structures be made safe. In our opinion, this section would also support the action the Calvert County Commissioners wish to take.

We believe that the strongest authority of all, however, is the zoning authority codified in Article 66B. Section 4.01(a) of that article empowers boards of county commissioners, as the legislative bodies of noncharter counties, among other things, "to regulate and restrict . . . the location and use of buildings, signs, structures and land for trade, industry, residence or other purposes". Section 4.02 authorizes county commissioners to "divide the county . . . into districts . . . , and within such districts [to] regulate and restrict the erection, construction, reconstruction, and alteration, repair or use of buildings, structures or land". The regulations and restrictions must be imposed "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community". Article 66B, §4.01(a). See also Article 66B, §4.03.

The Court of Appeals recently held that these provisions vest in the Board of County Commissioners of Calvert County "the full measure of power which the State could exercise" in pursuit of the objective of promoting the health, safety, and general welfare of the public. Harbor Island Marina, Inc. v. County Commissioners, 286 Md. 303, 312 (1979). The Court indicated that the words of §4.01 should be read broadly to effectuate the underlying remedial purpose of the statute. Accordingly, we believe that, under Article 66B, §4.01 et seq., the County Zoning Ordinance could properly regulate or restrict the construction or maintenance of swimming pools and require that they be fenced. Indeed, a number of local zoning ordinances in Maryland, adopted pursuant to Article 66B, contain swimming pool fencing requirements.5

5 E.g., Dorchester County Zoning Ordinance (January, 1976, revised to October, 1977), §23.02, p. 37 (definition of "Swimming Pool"); Chestertown Zoning Ordinance (December 30, 1974), Article 10, §9.4; St. Michael's Zoning Ordinance (December 9, 1975, amended June 14, 1977), §6.12c. None of these sections indicates specifically that the fencing requirements are applicable to pools constructed or installed before the effective date of the ordinance. In the absence of a clear indication of legislative intent that an ordinance apply retroactively, it will be construed to operate prospectively only. Rigger v. Baltimore County, 269 Md. 306, 310 (1973).

III
Conclusion

In summary, it is our opinion that the Board of County Commissioners of Calvert County may require the fencing of all pools in the county, including those constructed or installed before May, 1980, whether through its building code, its zoning ordinance, or otherwise.

Stephen H. Sachs, Attorney General
Judith A. Armold, Assistant Attorney General
Avery Aisenstark
Principal Counsel,
Opinions and Advice