Kent Island Defense League, LLC v. Queen Anne's County Board of Elections

JAMES R. EYLER, Judge. The principal question before us is whether two ordinances enacted by Queen Anne’s County, a code home rule county under Article XI-F of the State Constitution, are subject to a referendum of the voters of the County. The ordinances re-designated certain properties that are subject to the Chesapeake Bay Critical Area Program from one development category to another. See Md.Code (1984, 200 Repl.Vol.), Nat.

Resources, §§ 8-1801—8-1817, and Code of Public Local ⁶⁸⁶ Laws of Queen Anne’s County (1996), Title 14, Environmental Protection, subtitle 1. We hold that the ordinances are not subject to referendum. In light of that holding, we need not address the other issue raised, i.e., whether the form of the referendum petition was in compliance with applicable law. See Md.Code (1967, 2001 Repl.Vol.), Art. 25B, § 10(h)(4).

The Parties Kent Island Defense League, LLC, an appellant, presented a petition for referendum to the County Board of Elections, an appellee. The Elections Director, Brenda Williams, another appellee, determined that the petition was legally deficient. Kent Island Defense League, LLC, and Richard E. Moser, its president and a registered voter in Queen Anne’s County, another appellant, filed a petition for judicial review of that decision in the Circuit Court for Queen Anne’s County. K. Hovnanian at Kent Island, LLC, developer of the property that is the subject of the referendum petition, and Douglas M. Shreve, a registered voter of Queen Anne’s County, additional appellees, filed a complaint for declaratory judgment in the Circuit Court for Queen Anne’s County, seeking a declaration that the petition for referendum was legally deficient.

The cases were consolidated. The circuit court held that the petition for referendum was legally deficient. Background The General Assembly, in enacting the Chesapeake Bay Critical Area Protection Program in 1984, stated that its purpose was “to establish a resource protection program for the Chesapeake Bay and its tributaries by fostering more sensitive development activity for certain shoreline areas.” Md.Code, Nat. Resources, § 8-1801(b)(l).

The program was to be a cooperative one between the State and certain local governments, with local governments implementing their programs in, a “consistent and uniform manner subject to State criteria and oversight,” with oversight performed by the Criti ⁶⁸⁷ cal Area Commission (the Commission). McLCode, Nat. Resources, §§ 8-1801(b)(2), 8-1808(a)(l). Queen Anne’s County enacted a Critical Area program.

See Code of Public Local Laws of Queen Anne’s County, Title 14, subtitle 1. Pursuant to the state statute establishing the program, Queen Anne’s County designated all county land within the Critical Area for inclusion in one of three development categories, based upon conditions existing as of December 1, 1985. The development categories are Resource Conservation Area (RCA); Limited Development Area (LDA); and Intensely Developed Area (IDA). See COMAR 27.01.02.07C.

Local jurisdictions were authorized by state law to provide for future expansion of the amount of acreage designated LDA or IDA, a procedure known as “growth allocation,” by an amount that could not exceed five percent of the acreage in the local jurisdiction originally designated RCA. See COMAR 27.01.02.06A(1). On June 9, 2000, a petition was filed with the County Commissioners to re-designate approximately 293 acres from RCA to LDA and approximately 80 acres from LDA to IDA. On July 13, 2000, the County Planning Commission recommended approval of the petition for re-designation of the land.

On July 25, 2000, the County Commissioners granted “conceptual approval” and forwarded the proposal to the Commission. On December 6, 2000, the Commission approved the petition subject to certain conditions. On February 27, 2001, the County Commissioners held a public hearing, and on April 10, 2001, the County Commissioners, by resolution, approved the petition subject to certain changes and conditions. As a result of the changes and conditions, the County Commissioners referred the petition back to the County Planning Commission for any input and back to the Commission for its approval.

On August 21, 2001, after the Commission’s approval, the County Commissioners enacted the ordinances in question, 01-01 and 01-01A. The ordinances approved the petition to re-designate the land subject to the conditions and changes previously approved by resolution. ⁶⁸⁸ On September 28, 2001 and October 23, 2001, appellants filed a petition to refer the ordinances to the voters of the County. By a Declaration of Deficiency issued pursuant to Maryland Code, Article 33, section 6—206(c), the Elections Director advised appellants that the petition was legally deficient because the ordinances were not subject to referendum and because the petition was deficient in form. On November 5, 2001, appellants, pursuant to Article 33, section 6-209(a), filed a petition for judicial review of the Elections Director’s decision.

On December 7, 2001, appellees K. Hovnanian at Kent Island, LLC, and Douglas M. Shreve filed a complaint for declaratory judgment, raising the same issues' plus'an additional issue as to the form of the referendum petition. After hearing argument in both crises, the circuit court held that the ordinances in question were hot subject'to -referendum. Appellants rioted an appeal to this Court. " Discussion Local political subdivisions , are creations of the State.

Except to the extent that the State Constitution restricts legislation, the counties and Baltimore City are subject to control by the General Assembly. The local subdivisions may acquire home rule, a status which restricts the power of the General Assembly to enact local laws, as provided in the State Constitution. Article XI-A, added to the Constitution in 1915, provides for a charter form of local government. Article XIE, added to the Constitution in 1954, applies to municipalities.

Article XI-F, added to the Constitution in 1966, provides for a code form of government. 1 Article XI-A was implemented by the Express Powers Act, Maryland Code, Article 25A, section 5, enacted in 1918. Article XI-F, which did not require legislative implementation, was supplemented by Maryland Code, Article 25B, enacted in 1967. • Prior to ratification of Article XI-F,' all non-charter ⁶⁸⁹ counties had been delegated power to legislate in matters of zoning and land use, see Md.Code, Art. 66B, § 4.01, but these powers were not exclusive. Article 25B, section 13, gave code home rule counties the same power to legislate in the areas of zoning and land use as charter counties had under Article 25A, section o(X). The governmental power of Queen Anne’s County, a code county, is subject to the State’s Constitution, public general laws, and public local laws enacted by the General Assembly, to the extent permitted by the Constitution.

Additionally, the powers of home rule that might otherwise appear to exist have been limited by court decisions applying the doctrines of conflict and preemption. Pursuant to these doctrines, legislative acts by a local jurisdiction that conflict with a public general law or that deal with an area in which the General Assembly has occupied the entire field or which deal with an area that the General Assembly has expressly reserved to itself, are invalid. See County Council for Montgomery County v. Montgomery Association, Inc., 274 Md. 52, 59 , 333 A.2d 596 (1975). A proposed new Constitution, which would have imposed greater restrictions on the General Assembly with respect to its ability to control local matters in a particular county, was defeated in 1968.

With the above framework in mind, we turn to the specific constitutional and statutory provisions relevant to the issues before us. Article XI-F of the Constitution and Article 25B, section 10(h), of the Maryland Code, contain the referendum provisions applicable to code counties. Article XI-F, section 7, provides in part that “[a]ny action of a code county in the enactment, amendment, or repeal of a public local law is subject to a referendum of the voters in the county....” Section 1 of that Article provides in part that, “public local law” means a law applicable to the incorporation, organization, or government of a code county and contained in the county’s code of public local laws; but this latter term specifically does not include (i) the charters of municipal corporations under Article 11E of this Constitu ⁶⁹⁰ tion, (ii) the laws or charters of counties under Article 11A of this Constitution, (iii) laws, whether or not Statewide in application, in the code of public general laws, (iv) laws which apply to more than one county, and (v) ordinances and resolutions of the county government enacted under public local laws. Article 25B, section 10(h)(2), provides that “[t]he citizens of a code county, by petition, may submit to the registered voters of the county any public local law or portion thereof enacted under this subtitle.” The specific questions before us are whether Article XI-F applies, and if so, whether the ordinances in question are “public local laws” within the meaning of Article XI-F, section 7, of the Constitution and Article 25B, section 10(h)(2), of the Maryland Code, or “ordinances” within the meaning of subsection (2)(v) in Article XI-F, section 1, of the Constitution.

In contending that the ordinances are subject to referendum, appellants rely on the language in Article XI-F, section 7, which provides that an enactment, amendment, or repeal of a public local law is subject to a referendum of the voters in the county. Appellants observe that the ordinances in question, by their express terms, repealed and reenacted with amendments the Code of Public Local Laws of Queen Anne’s County, Title 14, and specifically, Chesapeake Bay Critical Area maps bearing numbers 49 and 57. Consequently, according to appellants, the ordinances were public local laws and not ordinances enacted “under” a public local law. Appellants also observe that, prior to the ratification of Article XI-F, non-charter counties had been delegated power to legislate in matters of zoning and land use.

See Md.Code, Art. 66B, § 4.01. Article XI-F extended that power, but placed restrictions on the General Assembly. Relying on Natural Resources, sections 8—1801(b)(2) and 8-1808(a)(l), appellants argue that the State Critical Area law contemplated that counties would exercise their power