Michael L. Pullen, the Talbot County Attorney, issued a public statement on Friday regarding the authority of the Talbot County Council to approve and amend the County’s comprehensive plan. Here is the statement in its entirety:
There has been a great deal of misinformation sponsored by a group of interested citizens who claim that the Planning Commission, not the County Council, has legal authority to adopt “amendments” or “revisions” to the Comprehensive Plan. This notion is legally flawed for a number of reasons.
The General Assembly has delegated express power to the Talbot County Council to “enact local laws relating to zoning and planning to protect and promote public safety, health, morals, and welfare” Local Govt., § 10-324 (a) (1) (i). This language is plain enough and clearly gives the County Council legislative authority to adopt the Comprehensive Plan. The sponsors’ theory misinterprets this to say that the Council may “enact local laws relating to zoning and planning, but not the comprehensive plan.” No court would supply words this statute does not contain or interpret it to mean something other than what it plainly says.
To avoid this result, the sponsors’ propose a semantic distinction that makes no sense and has no legal significance. They claim that the Comprehensive Plan is not a “law” or “legislation,” but merely offers “guidance.”
Comprehensive plans occupy a primary and central legal position in the development and implementation of local government land-use regulations and management of public resources and infrastructure. They are a 10-year strategic plan for counties and towns. Maryland law requires many local “actions” to be “consistent” with comprehensive plans. State law defines “consistency” and gives it a specific legal meaning. Local “actions” that must be “consistent” include zoning laws and maps, other land-use laws, planned development, subdivision regulations, amendments to the County’s Comprehensive Water and Sewerage Plan, extension of sewer, and extension of infrastructure and public services by Towns into recently annexed areas, among others. For example, the Planning Commission must review every proposed County sewer extension to determine if it is “consistent” with the Comprehensive Plan. The County cannot extend sewer service if it is “inconsistent” with the Plan.
All these “actions” are subject to legal challenge based on allegations they are “inconsistent” with the Plan and a court may award appropriate legal relief if it finds inconsistency. So, the notion that the Plan is merely a “guide” and not a “law” is both misleading and inaccurate. Whatever the semantics, the Comprehensive Plan has fundamental legal significance and occupies a dominant position as the benchmark against which to measure all these local decisions throughout its 10-year lifespan.
County councils throughout Maryland adopt comprehensive plans through legislation as part of their State-delegated function to “protect and promote public safety, health, morals, and welfare.” The County Council adopted the 2005 Comprehensive Plan by legislation. The 2005 Plan and the 2015 Draft Plan both state, “[t]he Council has the ultimate authority to determine the content of the Comprehensive Plan, taking the Planning Commission’s advisory recommendations and the Planning Officer’s recommendations into account.”
The sponsors’ misinterpretation is totally at odds with the plain meaning of Local Govt., § 10-324 (a) (1) (i) and fails to explain why the General Assembly delegated such clear and broad authority to county councils if they did not fully expect them to actually exercise that authority by adopting comprehensive plans.
Talbot County’s Charter
The County Charter, § 404 (c) clearly sets out the Planning Commission’s role relating to the comprehensive plan: “The Planning and Zoning Commission shall make advisory recommendations to the County Planning Officer and the Council relating to the Comprehensive Plan, the zoning maps, and rules and regulations relating to zoning.”
To avoid the plain meaning of the Charter the sponsors offer another legal mis-interpretation. They claim that Land Use § 1-416 “conflicts” with the County Charter and therefore State law has “superseded” the Charter. This claim is mistaken for several reasons.
The Charter does not “conflict” with State law
Nobody informed Talbot County’s Local Delegation, the County Council, or Talbot County voters that the General Assembly’s adoption of § 1-416 would create any supposed “conflict” that would “supersede” Charter § 404 (c). In fact, nobody even told the General Assembly – not even the Department of Legislative Services, whose job is to summarize and explain the legal effect of the many Bills, often written in “legalese” that the General Assembly considers. Nowhere in the legislative record is there any suggestion that anyone ever intended or believed the sponsors’ claim that Land Use § 1-416 would “conflict” with and “supersede” Talbot’s Charter. That result was never proposed, considered, intended or accomplished.
Section 1-416 was part of a major revision of various titles and subtitles of land use law previously spread through several parts of the Maryland Code that were being recodified into a single new volume called Land Use. This re-codification divided the previous, longer statute, Art. 66B § 1.04, into shorter, renumbered sections, including § 1-416, and placed the new § 1-416 into its own section of the new Land Use Article. That ministerial process was not intended to effect any substantive change in the law. The recodified section of Land Use § 1-416 (a) currently provides:
At least once every 10 years, each planning commission shall review the comprehensive plan and, if necessary, revise or amend the comprehensive plan to include all:
the elements required under Part II of this subtitle; and
the visions set forth in § 1-201 of this title.
The meaning of § 1-416 remains the same as it was in Art. 66B § 1.04, which provided that, “when developing a comprehensive plan for a charter county, a planning commission shall include: a transportation plan element which shall propose the most appropriate and desirable …transportation facilities…a mineral resources plan element that… incorporates land use policies and recommendations for regulations…an element which contains the planning commission’s recommendation for land development regulations to implement the comprehensive plan… when developing a comprehensive plan for a charter county a planning commission may include a priority preservation area element…” Art. 66B § 1.04.
The meaning of Art. 66B § 1.04 and § 1-416 is the same. Planning commissions develop comprehensive plans that include all elements and visions required by State law and recommend that Plan to the local legislative body for adoption. The Department of Legislative Services explained this in its Fiscal and Policy Note for the legislation that required local “actions” to be “consistent” with comprehensive plans. That Fiscal and Policy Note explained: “The State has delegated to local governments the power to plan and zone subject to specified statutory requirements.…Local planning commissions develop and approve comprehensive plans that must be recommended to the local legislative body for adoption. In part, comprehensive plans serve as a guide to public and private actions and decisions relating to development….For charter counties…the plan is required to include… a transportation plan, a mineral resources plan under specified circumstances, a water resources plan, recommendations for land development regulations, and a sensitive areas element. Plans must be reviewed and if necessary, revised and amended, at least once every six [now ten] years.” (Fiscal and Policy Note, Department of Legislative Services, HB 297, Ch 426, Acts 2009).
This process is clear and simple and universally understood and followed throughout the State. It confirms the very process Charter § 404 (c) requires, i.e., that the Planning Commission “makes advisory recommendations to the County Planning Officer and the Council relating to the Comprehensive Plan…” It recognizes and incorporates the express delegation of legislative power to county councils to adopt comprehensive plans.
Section 1-416 does not “conflict” with Charter § 404 (c). When courts interpret and apply multiple laws concerning the same subject they construe them as consistent with each other if such a construction is reasonable. That is clearly the situation here. Section 1-416 means what the
General Assembly and the Department of Legislative Services understood it to mean, i.e., it requires periodic review and revision of the comprehensive plan at least once every 10 years, and requires that the Plan be amended or revised if necessary to include all the elements and visions specified in State law. After that happens the Commission recommends the Plan to the Council for adoption. That invokes the Council’s express legislative authority and necessarily requires the Council to make policy judgments about how best to promote public health, safety, and welfare.
But, even if §1-416 did “conflict” with Charter § 404 (c), there is a fundamental problem the sponsors overlook. Any supposed “conflict” would not affect the State’s express delegation of separate legislative authority to the Council to adopt the Comprehensive Plan under Local Govt. § 10-324 (a) (1) (i). That independent grant of legislative authority would remain intact and unaffected.
Section 1-416 is not a grant of legislative power to an unelected Planning Commission. That misinterpretation raises serious constitutional questions and is inconsistent with: (1) the express grant of legislative power to the County Council under Local Govt. § 10-324 (a) (1) (i); (2) the General Assembly’s legislative intent in re-codifying Art. 66B § 1.04; (3) the Department of Legislative Services’ analysis and succinct legal explanation in its Fiscal and Policy Note; (4) the current and historical practices of charter counties throughout the State; and (5) the clear language of the County Charter.
Finally, the Court of Appeals has provided legal guidance on this issue.
“It must be borne in mind that the planning commission was not the legislative body. Insofar as this plan was concerned it had one function and only one function, to devise and to transmit to the county commissioners the best possible plan for Washington County…It was not the function of the commission to determine whether there should be a plan. The county commissioners made that decision when they created the planning commission. If the appellants wished to oppose adoption of this particular plan or, notwithstanding the earlier decision of the legislative body to formulate and adopt a plan, they still wished to oppose adoption of any plan, then the place for such opposition was before the legislative body, not the planning commission.” Washington County Taxpayers Asso. v. Board of County Comm’rs, 269 Md. 454, 464, 306 A.2d 539, 544 (1973)
The Planning Commission makes advisory recommendations to the Planning Officer and the Council concerning the Comprehensive Plan. The Council has the legislative authority to adopt the Plan. This authority necessarily involves legislative judgments by the County’s elected representatives as they consider which policies, goals, and strategies will best promote the public health, safety, and welfare of the County and its citizens for the next 10 years.
At this point the Planning Commission has finalized and submitted their recommended Plan. The County Council is considering those recommendations and public comment and is preparing a final draft Plan to be introduced for legislative action. The Council will continue to receive and consider the Commissions’ recommendations and citizen input and will continue to carefully evaluate which policies, goals, and strategies best promote the public welfare.
Write a Letter to the Editor on this Article
We encourage readers to offer their point of view on this article by submitting the following form. Editing is sometimes necessary and is done at the discretion of the editorial staff.