Counties: Incorporation Process Wisely Includes “Checks and Balances”

On January 18, 2022, MACo Executive Director Michael Sanderson testified before the House Environment and Transportation Committee in opposition to HB 42 Municipal Incorporation – County Commissioners or County Council – Required Consideration of Referendum Request. This bill would require the county commissioners or county council to “consider” a certain referendum request if a valid petition to incorporate a certain area as a municipality is presented by not less than 40% of the registered voters who are residents of the area proposed to be incorporated.

Committee member questions illuminated the vague term “consider” in the bill, and also asked about how many potential new incorporations might emerge under more favorable terms sought by the sponsor and (by her reference) residents of certain areas of Harford County.

Mr. Sanderson pointed out the meaningful effects of municipal incorporation on the surrounding county (via land use and infrastructure decisions), other municipalities (via the Highway User Revenue formula), and on county services (via the municipal allocation of county income taxes). “Incorporation doesn’t only affect those inside the incorporated areas,” he said.

From the MACo testimony:

Under current and longstanding Maryland law, in order to incorporate, residents of an area must first petition the county governing body with their interest. The county then evaluates the potential effects of the possible incorporation on the surrounding area and the county at large, and determines through its own public process whether to submit the matter to a referendum of the affected area’s residents.

HB 42 incorporates a peculiar and vague new standard that the county must “consider” this submission, creating a new statutory standard that, at the very least, establishes new grounds to litigate that the county’s action was unsatisfactory.

The one sure outcome of this new law would be to promote extended litigation over any future potential incorporation effort matching the terms described.

Any rejected municipal incorporation could be challenged by its supporters as not having met whatever the eventual meaning of “considered” may be. Through time and costly litigation, perhaps the Maryland courts would establish a clear meaning of this standard – presumably increasing the burden upon the county governing body to meet this new statutory test to play its role.

Follow MACo’s advocacy efforts during the 2022 legislative session on MACo’s Legislative Tracking Database.
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