AG Speaks On PlanMaryland: MDP Authority Limited

With the recent release of a revised draft of PlanMaryland, and a proposed 60-day comment period for input on this substantially new document, MACo intends to illuminate issues relevant to the local government community through a series of writings in the weeks ahead.

References:
MACo’s Comments on Plan Maryland (April Draft)
Search for all PlanMaryland content on the Conduit Street blog
PlanMaryland – Original Draft (April 2011)
MDP Progress Report (July 2011)
PlanMaryland- Revised Draft (September 2011)
Maryland Department of Planning’s PlanMaryland website

Previous articles:
Who Really Sets Growth Areas?
What It Is, What It Isn’t

Today’s topic: What Authority Does MDP Have Over Land Use Decisions?

In a letter posted on the Maryland Department of Planning’s PlanMaryland website, the Attorney General has responded to a series of inquiries regarding the statutory authority and role for the Department in matters of local planning. The letter, addressed to Senate Minority Leader Nancy Jacobs, discusses a range of legal issues, but reaches several conclusions acknowledging limits to the Department’s ability to intervene in local land use decisions.

From page 2 of the letter:

MDP’s role in the delegated powers of zoning and planning to local jurisdictions is not a regulatory one. In other words, MDP does not have the statutory authority to approve a local comprehensive plan or comprehensive plan amendment or veto a local jurisdiction’s decision in regard to zoning, such as a decision to rezone property or to grant a special exception or variance. Rather, MDP is given the statutory authority to participate in local land use proceedings.

Later in the letter, though, it is clear that the state government’s authority in related matters is rather broad:

While the General Assembly has delegated, with certain requirements, land use zoning and planning powers to local jurisdictions, it has not delegated to local jurisdictions the powers of water and sewer planning, which also relate to land use and can affect a local jurisdiction’s land use decisions.

The State, through the Maryland Department of Environment (MDE), has the authority to approve or deny, in whole or in part, or to modify mandatory water and sewer plans and amendments to extend water and sewer, services for development throughout the State.

Consequently, even if a local jurisdiction’s zoning ordinance or zoning action allowed a proposed development, MDE could deny an amendment to the jurisdiction’s water and sewer plan to allow a
wastewater treatment plant for the increased development if the amendment did not meet the requirements of the law. In effect, this would nullify a local jurisdiction’s decision to allow a more intensive use of the property.

Counties have raised a variety of concerns with the “intrusion” proposed by the still-under-comment PlanMaryland. The Attorney General’s letter serves to reinforce that these matters are complicated — both from a perspective of legal authority as well as good public policy.

Read the Department’s collection of media and other public coverage of PlanMaryland here.

Michael Sanderson

Executive Director Maryland Association of Counties

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