MACo’s legislative initiative to target “implied preemption” has been withdrawn, amidst questions about whether a statutory approach to the issue could accomplish its intended goals.

MACo and the LOCAL Maryland worked with Delegate Karen Lewis Young and Senator Clarence Lam to develop and introduce legislation to clarify the circumstances where the Maryland courts would find that local governments are preempted from local action. In recent years, the state courts have been inconsistent, but have sometimes ruled that the state’s “occupation of a field” leave no room for local activity. This legal theory has resulted in local point-of-sale regulation of tobacco products voided – despite the lack of any state law that explicitly denies local governments this authority. Similarly, a recent court case on land use laws and solar facilities found a similar “implied preemption.”

See Conduit Street’s coverage of the Perennial Solar case:  Court of Appeals Holds Solar Siting Decisions Are Made by the State, Not by Local Zoning

This week, the bills were withdrawn, as multiple stakeholders raised concerns about the effect of a prospective statutory interpretation – the approach taken in HB 1522. From the withdrawal letter, submitted by Delegate Karen Lewis Young (with agreement from MACo and the LOCAL Maryland coalition):

Amidst the preliminary discussion about the bill’s intended effect, legal questions have arisen regarding the effectiveness of this proposed statutory reframing of the General Assembly’s legislative intent when establishing a regulation or oversight regime. Specifically, stakeholders are unclear whether a merely statutory direction (as encompassed in these bills) could effectively accomplish the same desirable outcome reached by an analogous constitutional provision in the Illinois State Constitution.

We believe this matter deserves further legal consideration, beyond the scope of the current session timeframe. Therefore, we withdraw this 2020 legislation to enable stakeholders to work with the Office of the Attorney General, and other sources, to help resolve these questions.

MACo will continue to work with stakeholders, legal authorities, and the bill sponsors, to pursue the matter further with an eye toward legislation in the future.