I am writing to address a legal issue first raised publicly at the Council’s last meeting. At this meeting, Mr. Thomas T. Alspach, Esq., representing the Talbot Preservation Alliance, called into question the Council’s authority to amend Talbot’s Comprehensive Plan. Throughout most of this year the Council has met monthly to consider changes to the Plan. The Council’s most recent meeting earlier this month was the first, however, to permit public comment on both the Council’s red-lined draft of the revisions it is considering and the review process it has followed so far.
As I commented to someone recently, I am a “has-been” Managing Partner of Drinker Biddle & Reath, Philadelphia, PA where I practiced for 33 years in another field entirely and never with respect to Maryland law! Nevertheless, my wife and I have been residents of Royal Oak for 19 years and have viewed with alarm the Council’s direction and process as it pertains to land use and the Comprehensive Plan. This began with Bill 1305 which the Council proposed in July and which would have given just three Council members sole power to change the zoning of a land parcel anywhere in the County, and total control over how it was developed including usage, size and building structure. Our alarm that was set off by Bill 1305 has continued—now, I should say, in the company of even more citizens.
As I said in my e-mail to you on December 14, “as a resident of Royal Oak for the past 19 years, I have some understanding of the cost and safety implications of increasing the residential density of Royal Oak by a factor of 4 or so.”
Following Mr. Alspach’s comments at the Council’s last meeting, and despite not having qualified to practice in Maryland, I undertook to look at the provisions that seemed to bear on the roles of the Council and the Planning Commission in reviewing and revising Talbot County’s Comprehensive Plan. I would like to share these with you now.
Section 404 of Talbot County’s Charter provides that the Planning Commission “shall make advisory recommendations to the County Planning Officer and the Council relating to the Comprehensive Plan . . . .” As best I can tell, this language was originally adopted in December, 1973. See The Star Democrat, October 30, 2001 at 9. It has since been superseded by changes in the Maryland land use Code. Only the Planning Commission can amend Talbot County’s
Comprehensive Plan. This is a matter of statutory law, not interpretation.
The law that’s applies to a charter county like Talbot today imposes a mandatory obligation on a planning commission with regard to a county comprehensive plan: “At least once every ten years, each planning commission shall review the comprehensive plan and, if necessary, revise or amend the comprehensive plan . . . .” Md. Ann. Code, Land Use Section 1-416(a) (emphasis added).
Maryland general law does not give the Council any authority whatsoever to “revise or amend” a comprehensive plan (either before or after the Planning Commission has adopted its final revisions and amendments). To the contrary, Section 1-405 stipulates that “a charter county shall” . . . “amend” . . . “a [comprehensive] plan in accordance with [statutory provisions that include this Section 1-416(a) now cited].” (emphasis added).
In the interests of being complete, the Maryland land use Code does address the Council’s role in this process:
Section 1-417. Periodic review; implementation.
“(a) Required review. At least once every 10 years, which corresponds to the comprehensive plan revision process under Section 1-416 . . . a charter county shall ensure the implementation of the visions, the development regulations element, and the sensitive areas element of the plan. (emphasis added)
(b) Implementation. A charter county shall ensure that the implementation of the requirements of subsection (a) of this section are achieved through adoption of the following applicable implementation mechanisms that are consistent with the comprehensive plan:
(1) zoning laws; and
(2) local laws governing: (i) planned development; (ii) subdivision; and (iii) other land use provisions.” (emphasis added)
To summarize, the Maryland land use Code describes a “comprehensive plan revision process” that is mandatory and under the sole jurisdiction of the Planning Commission; and an “implementation” role for the Council to adopt zoning and other laws that are “consistent with the comprehensive plan,” as revised periodically by the Commission.
One might ask: what then is the effect of Talbot County’s Charter provision requiring the planning commission to make “advisory recommendations” to the Council? This Charter provision obviously conflicts with the sections of the Code I have referred to.
The highest court in Maryland (the Maryland Court of Appeals) has established (as you might expect) that Maryland general law takes precedence over conflicting local laws, including conflicting provisions in a county charter:
“The Maryland Constitution, Article XI-A Section 1, provides inter alia that a county charter shall be subject to the public general laws of Maryland. If a provision of a county charter,
including a charter amendment, conflicts with any public general law, the charter provision may not be given effect.”
Montgomery County v. Board of Elections, 311 Md. 512, 536 A.2d 641, 642 (1988); Wilson v. Board of Supervisors of Elections, 273 Md. 296, 328 A.2d 305, 308 (1974) (“any conflict between a county or city charter and a public general law must be resolved in favor of the public general law.”)
Section 1-416 of the Land Use article in the Maryland Code, quoted above, is a public general law and therefore, as a matter of law, takes precedence over conflicting provisions in the Talbot County Charter.
If the foregoing discussion is correct, it seems to me the following conclusions need to be drawn:
1. The process followed by the Council in considering revisions to the Comprehensive Plan during 2015 has been ultra vires, that is, without legal authority; beyond the Council’s power; and needs to be discontinued;
2. The Talbot Planning Commission, taking under consideration the work of the Council and the public’s comments to date, needs to meet again, hold hearings as it deems appropriate, and review the Comprehensive Plan, revising it or amending it as it considers necessary; and
3. The Council should “ensure the implementation of the visions, the development regulations element, and the sensitive areas element of” the comprehensive plan, as revised or amended by the Planning Commission, by adopting zoning and other local laws that are consistent with the plan.
In closing, I would like to make some personal remarks. I chose to go to Vietnam in 1967 as a 1st Lt., U.S. Army, Ordnance Corps. stationed in Pleiku (II Corps, the Central Highlands). I saw close-up the gifts to us in life and limb made by my contemporaries, including personnel in the 4th Infantry Division headquartered there. Men and women who believed fervently in our country, our country’s leadership and our nation’s democratic values gave their sacrifices tragically but willingly. Others have and continue to do the same.
For 8 years (1988 – 1995) I served two elected terms as a Commissioner of Lower Merion Township, PA (Republican) on a Board of 14 where I represented much of Bryn Mawr and Gladwyne, Pa. Lower Merion Township is the largest township in Pennsylvania with a population then that exceeded 70,000.
In the military you are sometimes faced with the request: “Permission to speak frankly, Sir?” Normally, you say “yes” and normally, you don’t always like what you hear. The point is, I feel I have earned the right to speak frankly and so will right now.
Like it or not, each of you occupies a position of sacred public trust. Your personal circumstances must be made irrelevant since you are a trustee and by running for office, you chose to be accountable to the people who elected you. They are entitled to expect and demand that you do what you believe is in their interests, as they see it and as you, taking this into account, believe it to be. Aside from paying taxes, most of us will not often have reason to interact with state or national government; not so, however, with local government! We all know there is today pervasive cynicism with and about government. But each of you individually is in a position to counteract this. So do it—by the way you demonstrate your fealty to your office and to the public; by the way you conduct yourselves; and by your actions. Our County and the lives we lead today were given to us by others. Honor the contributions of those who came before and make us proud of you.
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Sharron Cassavant says
The commentator agrees with the representative of the Talbot Preservation Alliance. Both are attorneys. County Attorney Mike Pullen disagrees. At the Talbot County Workshop held on Dec. 29 at the Talbot County Free Library, Mr. Pullen cited specific Maryland statutes on which he bases his opinion that the County Council has full authority to amend the 2015 Comprehensive Plan.
It now appears likely that any Comprehensive Plan enacted by thisCounty Council would be challenged in court. I urge all parties to seek the opinion ofthe Maryland Attorney General. Although such an opinion would not be legally binding, it would be held in high regard in any Maryland court. It is important to do as much as possible to settle this question of legal authority as quickly and inexpensively as possible so that the Planning Commission and the Talbot County Council may proceed with confidence. All persons concerned with the Comprehensive Plan have invested their time, intelligence and energy.
Council members, Planning Commission members, and Planning Dept. staff have all agreed that the Maryland Planning Commission review of the draft Comprehensive Plan is helpful and warrants further study. Similarly, a disinterested opinion from the MD Attorney General could provide very substantial guidance.
Let us expend County monies as productively as possible. The Talbot Preservation Alliance has plentiful worthy demands upon its funds as well. Reasonable people may differ, but it would be unreasonable not to seek free, disinterested guidance.
Paulette Florio says
May we preserve the beauty of this EasternShore that we all love so dearly. And may those we have elected to office help us do so. Let us not loose what we have here that sets us apart from other areas. Let us protect this special place from over development that will turn us to into just another place without distinction of the natural wild beauty we currently enjoy. Let’s hold onto what we have here.