AG Opinion Concludes Local Legislative Bodies Cannot Substantively Amend Draft Comp Plans

A November 18 Maryland Attorney General Opinion concluded that the local legislative bodies of non-charter counties and municipalities may not make even minor substantive amendments to a draft comprehensive plan submitted by the jurisdiction’s planning commission without first sending the proposed amendments back to the planning commission for its recommendation.  The opinion does not affect charter counties or Baltimore City.

The request for the opinion was made by the Town of Mount Airy in 2011 after a dispute between the town council and its planning commission.  Mount Airy’s counsel submitted an analysis along with the town’s request that concluded the town council had the ability to make material amendments to the submitted draft comprehensive plan without a recommendation from the town’s planning commission.

The Attorney General (AG) Opinion reviewed: (1) the plain language of the relevant statutes (Sections 3-202 and 3-205) of the Maryland Code’s Land Use Article; (2) 2012 Code Revision notes; and (3) the legislative history, before concluding:

Accordingly, we conclude that § 3-205(d)(1) currently does not authorize a legislative body to adopt substantive alterations or amendments to a comprehensive plan as prepared and approved by a planning commission. This does not mean that a local legislative body must adopt the proposed plan “word for word and comma for comma,” Opinion No. 92-010 (April 16, 1992), 1992 WL 674718 at *3 (unpublished); it may correct any clerical errors and other non-substantive mistakes. But a legislative body may not make even minor substantive changes without returning the plan to the commission for its recommendation. See § 3-205, Revisor’s Note (indicating that, under current law, even “minor changes” must be sent back to the commission). Although that may prolong the process of adopting a comprehensive plan, it best reflects the language and legislative history of the operable provisions and ensures that the important decisions embodied within the plan are agreed to by both the technical body and the body that is accountable to the electorate.

In recognition of the ambiguity in the current law and the then pending AG Opinion, MML has adopted the issue as one of its 2015 Legislative Priorities.  MML plans on introducing legislation that will “seek to clarify the existing local process with regard to the adoption of a comprehensive master plan and to establish conditions under which the current 60-day master plan adoption time requirement may be extended.”

Mount Airy Opinion Request

Mount Airy Attorney Analysis

2015 MML Legislative Priorities

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