State preemption of local laws, in particular those laws seeking to advance health, environment, and community preservation aims, is a national issue. This article is the first in a series exploring local government powers, their preemption, and implications for Maryland.

What Makes Maryland #Countystrong?

As compared with other states in the US, Maryland’s county governments have a relatively large role in the delivery of public services. This is in part because Maryland, unlike other states, does not have townships or independent school districts.

As described by the Maryland Department of Legislative Services, in Maryland,

Counties are the primary unit of local government responsible for most basic services such as police, fire, local corrections, sanitation, local highways, health, and parks and recreation. Counties also are responsible for funding public schools, libraries, local community colleges, and the circuit courts.

In addition to the broad responsibilities of county governments in Maryland, Maryland counties are also relatively large. As portrayed in the map generated by the National Association of Counties based on 2007 census data:

• The dark blue in Maryland’s profile includes five Maryland counties with populations greater than 500 thousand: Anne Arundel County, Baltimore County, Baltimore City, Prince George’s County, and Montgomery County.
• Royal blue Harford, Howard, and Frederick counties all claimed more than 250 thousand residents at the time of that census.

Looking across the country, clusters of high population levels such as are found in Maryland counties are rare.

The array of government services performed by Maryland’s county governments, and their size, translate into larger county budgets, stronger workforces, bigger properties, and greater authorities to legislate and regulate, especially when seeking to protect the health and welfare of residents in their jurisdictional limits.

Protect This House: Health, Welfare, Planning, and the Environment

There are a broad array of local government duties that originated as and evolved into responsibilities for each of Maryland’s 24 county governments and Baltimore City.

As described by The Maryland Department of Legislative Services:

Regardless of the form of county government, certain functions and services have come, over time, to be provided by every county, although the level of services and the manner in which services are provided may vary. These county functions may be classified as either services of statewide concern, whereby the county serves as an administrative arm of the State in the provision of services, or strictly local services that are required or expected in each county. Types of services that are provided at the local level include general government (i.e., executive and legislative functions, finance, legal services, personnel, and procurement), land use matters and regulation of development (i.e., planning and zoning, issuance of building permits, and inspections), public safety (i.e., fire, police, emergency services, and corrections), public works (i.e., transportation, sanitation, and sewer and water), health and social services, primary and secondary education, community colleges, libraries, and recreation.

The broad responsibilities carried out by counties form a foundation for county legislative powers in areas relating to health, environmental, and general welfare.

Sources of Power and Methods of Exercising

The authorities of Maryland counties derive mainly from the State, as delegated to them through the Local Government Article of the Maryland Code. Local governments also have inherent powers based on their integral role in delivery of government services, especially protection of the public safety.

The way that counties are organized, the structure of their local governments, also has some influence on their authorities and how those authorities are carried out.

Muscle: Inherent Strength of County Governments

Local governments, including counties, possess inherent powers. As political scientist Max Schoetz, writing for the Marquette Law Review in 1923, stated (emphasis added),

The operations of Government depend to a great extent, for their success and accomplishments upon the existence and agency of municipal corporations, such as counties, towns, cities and villages. Without the delegation of a portion of its powers to them, its end and object could not be attained. By narrow construction and legislative interference powers of municipal corporations have been unwisely and unnecessarily embarrassed for a proper exercise of their usefulness. The early Wisconsin cases recognized that municipalities had certain inherent powers independent of the delegated powers. In other words, municipal corporations were said to possess the following powers:

a. Those expressly enumerated in the Charters.

b. Such as are necessary for their appropriate use and execution. 

c. Such as are inherent in every municipal corporation.

Quoting political scientists including Alexis de Tocqueville, Francis Lieber, and Thomas Jefferson, Schoetz describes the intended shape of American government as decentralized through empowering small organic institutions, such as counties and towns that constantly evolve in their character as a reflection of the population pockets they represent.

Form: County Structure

Maryland’s counties carry out their many duties through different government structures. There are three forms of county governments: commissioner, code home rule, and charter.

Charter counties have broad legislative power vested in their county council and most of the powers granted to charter counties are also granted to code home rule counties. Commissioners may enact ordinances where authorized by Express Powers enabling legislation, or specific public local laws.

Article XI-A of the Maryland Constitution specifies that any Maryland county or Baltimore City may adopt a charter form of government under which a locally elected council is authorized to legislate on local matters, to the extent authorized by a grant of express powers from the General Assembly.

Loading Plates: Powers Delegated to Counties

The Local Government Article specifically delegates several areas of authority for all counties and municipalities in Maryland. These authorities include:

• Establishing and maintaining recreation and parks programs;
• Partnering in federal watershed and housing assistance projects;
• Building and running public hospitals, and establishing oversight boards for nursing homes;
• Establishing clean energy loan programs;
• Requiring employers to comply with the Maryland Workers’ Compensation Act to receive a local license;
• Making various laws and regulations to raise funds for and require the construction of affordable housing; and
• Creating a land bank to manage an inventory of surplus land.

The Express Powers Act of the Local Government article grants authorities to charter and code home rule counties. Those additional authorities include:

• Supporting county services such as fire and ambulance services through property taxes and levy taxes;
• Legislating the location of streets and highways, and building construction and renovation;
• Creating and taxing storm drainage districts and performing storm drainage projects; legislating to prevent erosion
• Building community centers, and acquiring property for parks;
• Protecting historic properties;
• Requiring compliance with underground electric and telephone service regulations by developers;
• Establishing a county board of health, legislating to prevent nuisances, stop contagious diseases, and regulating the location of landfills and certain trades that might be damaging to the public’s health;
• Regulating livestock roaming and establish local fishing and gaming restrictions.

In addition, the Express Powers Act states,

(1)  It is the policy of the State that the orderly development and use of land and structures requires comprehensive regulation through the implementation of planning and zoning controls.

(2)  It is the policy of the State that planning and zoning controls shall be implemented by local government.

In addition to inherent powers of local governments, the various delegations of power in Maryland’s Code allowing counties to legislate in the areas of health, safety, and welfare of the community, reveal Maryland as what is called a “home-rule” state. States without these delegated local authorities fall under a principle of weaker local authority called “Dillon’s law.”

Therefore, while in Maryland there are differences in power among charter, code home rule, and commissioner counties, when it comes to legislating to preserve and protect the health, safety, and welfare, all forms of county government possess ample inherent and delegated authority.

Next Round  

This is the first installment of a blog series on state preemption of local laws. Future installments will discuss:

• How Maryland counties legislate to protect health, environment, and welfare of their residents
• Examples of express and implied preemption in other states
• Maryland court cases involving implied preemption
• Ways that counties are fighting local preemption across the country