Areas of State Critical Concern (1974) = Designated Places (Now)

Under statute, the Maryland Department of Planning (MDP) is required to “prepare and from time to time revise a plan or plans for the development of the State.  The plan or plans collectively shall be known as the State Development Plan.”  [1]  This requirement was not acted upon for several decades, until recently MDP released the draft of PlanMaryland.  One of the key aspects of PlanMaryland is the use of “designated places” – areas  designated for growth, agricultural preservation, natural resource conservation, water recharge, etc.  A previous Conduit Street blog post examined those places designated for growth (ie “Growthprint”) in detail.

The concept of designated places is built upon on older concept called “areas of critical state concern.”  These “critical areas” (not to be confused with the critical areas related to the proximity of the Chesapeake and Atlantic Coastal Bays that were created in 1984) were the subject of controversial legislation in 1974 that sought to redefine land use in the State.  Many of the same concerns that were raised over the critical areas legislation are echoed today in the concerns of PlanMaryland and designated places.

The 1974 Legislation

The 1974 legislation [2] started as House Bill 807 that was introduced by then Governor Marvin Mandel.  A similar piece of 1973 legislation, supported but not sponsored by the Governor, passed the House by 2 votes but failed on a 21-21 vote in Senate.  Both the 1973 and 1974 legislation were based on the recommendations of a commission formed by the Governor and chaired by then Senate President William S. James.

As introduced, the bill established a State Land Use Board that formulated land use policies and recommendations, assisted in the resolution of conflicts among the land use practices of both State agencies and local governments, and reviewed the State Development Plan.  The  legislation also  gave the Board the ability to designate critical areas based on set criteria.  A critical area would automatically become of the State Development Plan.

Critical areas were subject to guidelines and criteria adopted by the Board after a public hearing.  A local govenrment then had to submit to the Board development and land use regulations for the critical area that were “substantially consistent and comply with” the guidelines and criteria previously adopted by the Board.  Until the Board approved the local government regulations, the regulations did not take effect.  If the local government did not cooperate, the Board could prepare and adopt its own regulations in lieu of the local regulations and award construction permits in lieu of the local government.  The Board also needed to approve any subsequent local regulatory land use changes  to a critical area.

The Battle

The 1974 legislation provoked strong reactions among several stakeholder groups, including the counties.

The strongest argument against the land use measure came from G. Herbert Rice Jr., representing the Maryland Association of Counties, who said that without a statewide development plan the state “is ill-equipped to make specific land use decisions.”

Rice said the criterion for designating critical areas is a loosely defined “shopping list” that would bring 50 per cent of Baltimore County and 85 percent of Carroll County under state development control.  …

Montgomery County Executive James P. Gleason argued that his own county and others have sophisticated land use polices “and the case has never been made in our mind that the state can do it better.” [3]

Despite being an Administration bill, support from the Governor appeared lackluster until a group of rural and urban Delegates proposed banding together to defeat the bill in the House.

What happened Saturday, March 16, was an outbreak of open vote-trading attempts on the House floor that has rarely been seen in recent years.  It involved not only the land-use bill but a second administration measure that would end the much criticized program under which legislators award $2.5 million a year in state funds as college scholarships to residents of their own districts.  [4]

 In response to the vote bloc attempt, Governor Mandel’s lobbying team pushed hard for the bill and ultimately the bill passed 85 to 51.  The bill then moved over to the Senate Economic Affairs Committee, where passage seemed assured despite the efforts of the opponents and the State Planning Secretary, who was ironically lobbying against the Administration’s bill.

A new factor in the land-use battle on the Senate side will be Vladimir A. Wahbe, the state planning secretary who has been lobbying quietly to either kill the bill in its present form or to have another bill enacted that would place most land-use authority in his own department.  … Mr. Wahbe’s activities have started to irritate some administration officials who this year have tried to eliminate any open or subtle defiance of the Governor’s programs by state bureaucrats from competing agencies. [5] 

The Senate Committee bill hearing lasted three hours and included opposition testimony from the agricultural community as well threats to petition the legislation to referendum.  However the final Committee vote proved more challenging than anticipated when opponents of the bill took advantage of several missing Committee members and won approval for an amendment that would strip many of the bill’s provisions.

But the committee chairman Senator James A. Pine (D-Baltimore County), ruled that a second vote would have to be taken after the proposed amendment was put in writing.  Pine then left the committee room for his office and hurriedly placed calls for the missing senators.   …

As the missing senators arrived at the meeting, Senator Frederick C. Malkus Jr. (D-Lower Shore), the most adamant Senate foe of the land-use bill, muttered, “Pine’s a common son of a bitch.  He’s killing us.” [6]

The amendment failed on the second vote and the bill was voted out of committee.  However, bill opponents continued to delay the bill on the Senate floor and as the 1974 Session entered its last week, many other important policy bills were piling up behind the land-use bill.  Then in a move supported by both the bill’s opponents and proponents, the bill was committed to the Senate Finance Committee over concerns of the bill’s fiscal implications.  However, the respite was short-lived as the bill was returned to the Senate floor one day later.

After a “procedural decision” by the chairman, Senator George E. Snyder (D., Washington), the Senate Finance Committee agreed to send the administration’s land-use bill to the Senate floor without debate and without a committee vote.  …

[The move to commit the bill] delayed the bill for only a day, as the committees’ inquiry into the fiscal implications of the bill concluded with the general agreement that no one could predict the cost of the measure.  [7]

The Outcome

However, bill opponents continued to filibuster in the full Senate, keeping many bills still bottled up behind the land use bill and requiring the Senate to remain in Session until the early hours of the morning.  Ultimately, rural legislators were able to force a compromise that deleted most of the original bill.

The voters of Southern Maryland, the Eastern Shore and Western Maryland sent some strong ol’ boys into Annapolis this year, and it served them well.

As the land fight degenerated into a war of attrition, fought over wearying days and nights in the elegant trenches between the Senate desks, sheer physical stamina brought the country boys through. [8]

Instead of a State Land Use Board, the the Secretary of Planning could designate areas of critical state concern, with local governments able to offer recommendations.

MDP designated 57 areas for special consideration as areas for preservation, conservation or utilization.  State and local actions were strictly voluntary, however, and many of these areas have yet to be conserved, preserved, or used.  The [1974 Act] also allowed MDP to express the state’s interest in local land use decisions and to intervene in land use, development or construction issues. [9]

Lessons For Today

Arguably, there are aspects of PlanMaryland that go beyond the statutory authority of the State Development Plan and PlanMaryland’s designated places could be seen as trying to reach the original intent of the areas of critical state concern in the 1974 Act.   Unlike Priority Funding Areas, which are subject to MDP comment, designated places will be approved by MDP or potentially some other body – there has been some speculative discussion of converting the Sustainable Growth Commission, which currently serves in an advisory capacity, into an entity with more authority akin to the 1974 proposed State Land Use Board.  Unlike the current areas of critical state control, designated places are not voluntary and will carry potentially significant consequences, some of which are not yet defined.

Additionally, the 1974 debate highlights the continued challenge of creating a growth model for rural jurisdictions that recognizes their unique nature and concerns.  Finally, as some of the included quotations hopefully make clear, land use remains a volatile and emotional topic and such debates can take many interesting twists and turns.  In that aspect as well, history seems to be repeating itself.