Can a small Maryland town condemn land outside its own borders to build a sewage treatment facility?

Plain-English summary

The Town of Manchester needed to upgrade its sewerage system to meet state water-quality standards and had federal grant money to do it, but the plan required land-based spray irrigation sewage disposal on land that sat outside the Town's own boundaries. Town officials had been told back in 1982 that they had authority to condemn that land, but remained hesitant to actually start condemnation proceedings, and asked the Attorney General to confirm both that the Town could condemn extraterritorial land for the project and that it could enter the land first to evaluate whether it was suitable.

The Attorney General confirmed both powers. Municipalities generally cannot condemn property outside their own boundaries unless the General Assembly has expressly delegated that power, and the opinion found that the General Assembly had done exactly that for sewerage systems in §9-705(5) of the Health-Environmental Article, which let municipal authorities condemn property "inside or outside the municipality" needed for any part of a sewerage system. The opinion also found the Town had express statutory authority to enter the land beforehand to assess its suitability, separate from and not dependent on the condemnation power itself, under §9-706 and §12-111 of the Real Property Article.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Maryland municipality condemn land it doesn't own that sits outside its own town limits?
Generally, no, according to the opinion, unless the state legislature has specifically delegated that power. The opinion found the General Assembly had done so for municipal sewerage systems through §9-705(5) of the Health-Environmental Article, which expressly authorized condemnation of property "inside or outside the municipality."

Did the Town of Manchester need a court order or the landowner's permission before it could even walk onto the land to study it?
Not necessarily. The opinion found the Town had an express statutory right of entry under §12-111(a) of the Real Property Article after making a good-faith effort to notify the owner, and that if the owner refused entry, the Town could get a court order under §12-111(b) rather than being blocked outright.

Was Manchester's situation unique, or do other Maryland extraterritorial land powers work the same way?
The opinion noted this kind of extraterritorial grant was not unique, pointing to Article 25, §224(a) allowing counties and municipalities to acquire parkland beyond their borders, and to Baltimore City's authority to condemn certain sports franchise property anywhere in the state, as other examples of the General Assembly recognizing that some public purposes justify reaching outside a jurisdiction's own boundaries.

Background and statutory framework

Maryland municipal corporations generally have only the powers expressly granted to them, implied in those express powers, or essential to carrying out their purposes, per McRobie v. Town of Westernport, 260 Md. 464, 466 (1971), which ordinarily excludes condemning property outside their own boundaries unless the state legislature delegates that authority. The opinion found that the General Assembly had made exactly that delegation for municipal sewerage systems in §9-705(5) of the Health-Environmental Article, tracing the extraterritorial condemnation power back to its original 1927 enactment, Chapter 641, Laws of Maryland 1927, which used nearly identical broad language authorizing municipalities to take land "either within or outside of the municipality" for utility systems.

The opinion drew on other examples of Maryland's extraterritorial grants of municipal power, including Article 25, §224(a) for parks and recreation land, Baltimore City's charter authority to condemn sports franchise property anywhere in the state under Chapter 6, Laws of Maryland 1984, and case law recognizing implied extraterritorial authority in Birge v. Town of Easton, 274 Md. 635, 642-43 (1975) (out-of-state power plant interests implied in the power to operate an electric utility) and Wilson v. County Comm'rs of Allegany County, 273 Md. 30, 57-58 (1974) (bond financing for out-of-state pollution control facilities). On the separate question of pre-condemnation entry, the opinion relied on §9-706 of the Health-Environmental Article, which incorporated the entry procedures of Title 12 of the Real Property Article, and on King v. Mayor & Council of Rockville, 52 Md. App. 113, 122, cert. denied, 294 Md. 442 (1982), which described the right of entry as a "key element" of the eminent domain power because it lets a condemning authority gather the information needed to decide whether a particular parcel should be taken.

Citations

Statutes:

• §9-705(5) of the Health-Environmental Article (municipal condemnation power for property inside or outside the municipality, for sewerage systems)
• §9-705(2) of the Health-Environmental Article (power to extend or alter an existing sewerage system)
• §9-705(1) of the Health-Environmental Article (power to construct a system in a municipality)
• §9-706 of the Health-Environmental Article (condemnation procedures for sewerage systems, incorporating Real Property Article Title 12)
• §12-111(a) of the Real Property Article (right of entry to evaluate property before condemnation)
• §12-111(b) of the Real Property Article (court order compelling entry if owner refuses)
• §9-715 of the Health-Environmental Article (general municipal right of entry, e.g. for sewer line inspection/repair)
• Article 25, §224(a) of the Maryland Code (county/municipal extraterritorial acquisition power for parks and recreation)
• Chapter 641, Laws of Maryland 1927 (original enactment of the extraterritorial condemnation power for municipal utility systems)

Cases:

• McRobie v. Town of Westernport, 260 Md. 464, 466 (1971)
• Birge v. Town of Easton, 274 Md. 635, 642-43 (1975)
• Wilson v. County Comm'rs of Allegany County, 273 Md. 30, 57-58 (1974)
• King v. Mayor & Council of Rockville, 52 Md. App. 113, 122, cert. denied, 294 Md. 442 (1982)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LOCAL GOVERNMENT

Municipal Corporations—Condemnation—Extraterritorial Property—Environmental Health—Water and Sanitary Systems—Municipality has Authority to Condemn Land Outside its Boundaries for a Sewage Treatment Facility.

May 20, 1985

The Honorable Phillip R. Miller
Mayor, Town of Manchester
Mr. Richard B. Sellars, Jr.
Director, Water Management Administration
Office of Environmental Programs

You have requested our opinion on whether the Town of Manchester has authority to condemn land outside its boundaries for a sewage treatment facility. Further, you ask whether the Town has authority to enter onto that land before condemnation to determine its suitability for the proposed facility.

For the reasons given below, it is our opinion that the Town of Manchester does have authority to take those actions.

I
Background

Manchester wishes to improve its sewerage system, which does not meet present State water-quality requirements for its treatment plant, and the Town has received a grant of federal funds that will enable it to do so. Under the facility plan adopted by the Town, on the basis of which the grant was made, the improvements must provide for land-based spray irrigation sewage disposal, to reduce effluent discharge into the Prettyboy and Loch Raven reservoirs.

However, the land needed for a spray irrigation facility lies outside the Town's boundaries. Town officials expressed uncertainty as to the Town's authority to acquire land outside its boundaries by condemnation. In 1982, the Town was advised that it does have such authority. See Memorandum from Marc K. Cohen, Assistant Attorney General, to David Tibbets, Environmental Specialist (October 21, 1982). Nonetheless, the Town has expressed continued uncertainty and has been reluctant to institute proceedings to acquire the needed land. In our view, that hesitancy is unnecessary.

II
Analysis
A. Power to Condemn

To be sure, municipal corporations have only limited powers: those expressly granted to them, implied in their express powers, or essential to the accomplishment of their purposes. McRobie v. Town of Westernport, 260 Md. 464, 466 (1971). Thus, a municipal corporation generally cannot condemn property outside its boundaries. However, the power to condemn such extraterritorial property may be delegated to the municipality by the state legislature. See generally 11 McQuillin, Municipal Corporations §32.66 (3d ed. 1983). And that is just what the General Assembly has done with respect to property needed in connection with municipal sewerage systems.

Under §9-705(5) of the Health-Environmental Article ("HE" Article), municipal authorities have express power to "acquire by purchase... or if the owner objects, by condemnation, any property inside or outside the municipality" when the property is needed in the exercise of any other power "with regard to any part of any system". In this case, the proposed spray irrigation facility clearly would be "part of" Manchester's sewerage system. Indeed, the land itself would be an integral part of the system, for the facility would spray treated liquid sewage onto the land to be filtered through the soil and, ultimately, discharged into the groundwater. Thus, acquisition of the land is needed to exercise the Town's power under HE §9-705(2) to extend or, as in this case, alter its existing sewerage system.

Nor, in our view, would the result be different if the proposed improvement to Manchester's sewerage system were regarded as the construction of a new system. Although HE §9-705(1) authorizes municipal authorities to "[c]onstruct a system in a municipality", the accompanying condemnation power is explicitly granted without any such a restriction as to location. Rather, under HE §9-705(5), municipal authorities are expressly empowered to condemn property "outside the municipality" when the property is needed for any part of a sewerage system to be constructed in the municipality.

Notably, the power to condemn extraterritorial property was originally granted, in substantially the same terms as those of the present provision, in the same enactment that first authorized municipalities to establish utility systems. See Chapter 641, Laws of Maryland 1927 (subsequently codified as former Article 43, §§409 through 427). That enactment provided, in pertinent part:

"Said Municipal authorities, wherever they deem it necessar[y], may take or acquire any land... or other property, either within or outside of the municipality... for the construction, establishment, extension, alteration, maintenance, or operation of any part or appurtenance of [any] system, this to be done by the purchase... or[,] upon the failure to agree, by the condemnation of the [property]". Chapter 641, Laws of Maryland 1927, §348-B (former Article 43, §410).

The intent of this broadly phrased grant of express power clearly was to confer on municipalities plenary condemnation authority, to enable them to fully meet their citizens' needs for adequate, safe, and effective sewerage and other utility systems.

Grants of extraterritorial power are not unique. Under Article 25, §224(a), for example, counties and municipal corporations are authorized to "acquire or lease any water, land, buildings or other improvements thereon, within or beyond the corporate limits of the county or municipal corporation" for parks and recreational uses. That provision, unlike HE §9-705(5), is not itself an original grant of condemnation power. Nonetheless, it does authorize a municipal corporation that otherwise has condemnation power to exercise its power outside, as well as inside, the municipal boundaries.

Clearly, then, the General Assembly has recognized that, for some important public uses, acquisition of extraterritorial property is fully warranted. See, e.g., Article II, §(2)(b) of the Charter of Baltimore City, as enacted by Chapter 6, Laws of Maryland 1984 (authorizing Baltimore City to condemn certain sports franchises, including all incidental real property, "wheresoever the same may be located in the State of Maryland"). Cf. Birge v. Town of Easton, 274 Md. 635, 642-43 (1975) (municipality's authority to acquire interest in out-of-state power generating plant held to be implied in express power to operate electric utility); Wilson v. County Comm'rs of Allegany County, 273 Md. 30, 57-58 (1974) (bond issue to finance out-of-state construction of pollution control facilities pursuant to Article 41, §§266A and 266B held valid). Such as the case here, with regard to municipal sewerage systems.

B. Entry Onto Property

You have also inquired whether the Town of Manchester has authority to enter onto property outside its boundaries to evaluate the land's suitability for a spray irrigation field. That evaluation is necessary to determine whether the Town should proceed to acquire the property for its sewerage system. Accordingly, the right of entry might be regarded as having been granted, by necessary implication, as part of the express grant of extraterritorial condemnation power. However, there is no need for the Town to rely on such an implied power, for it has been given express power to enter onto the property.

HE §9-706, which governs municipalities' condemnations for sewerage and other systems, provides that "the proceedings shall be in accordance with... Title 12 of the Real Property Article". Under §12-111(a) of the Real Property Article ("RP" Article), civil engineers and other agents of "any body politic or corporate having the power of eminent domain[,] after every real and bona fide effort to notify the owner or occupant in writing[,] may [e]nter on any private land to... obtain information relating to the acquisition or future public use of the property". Further, if the owner or occupant refuses to allow the entry, the "body politic or corporate", in this case, the Town of Manchester, may obtain a court order directing that the entry be allowed. RP §12-111(b).

The courts have recognized that this right of entry "is a 'key element' in the exercise of the power of eminent domain", for the information so obtained "is necessary for determining whether 'that particular piece of property' should be 'taken'". King v. Mayor & Council of Rockville, 52 Md. App. 113, 122, cert. denied, 294 Md. 442 (1982). Put another way, the right of entry is necessarily coextensive with the power of condemnation, that is, property subject to condemnation by the Town pursuant to HE §9-705 is also, pursuant to HE §9-706 and RP §12-111(a), subject to the Town's right of entry for the purpose of determining whether that property should be condemned.

In our view, HE §9-715, which grants a general right of entry "on any private property or into any building that is within the jurisdiction of the municipality", supplements but does not supersede the basic right of entry for condemnation purposes. HE §9-715 is designed to permit entry for general purposes, for example, to inspect or repair a sewer line. Entry for survey or evaluation prior to instituting condemnation proceedings, however, is governed by the statute that specifically addresses that matter, RP §12-111, rather than the general provisions of HE §9-715.

III
Conclusion

In summary, it is our opinion that the Town of Manchester has express statutory authority to condemn property outside its boundaries, pursuant to HE §9-705(5), and to enter onto such property to evaluate it, pursuant to HE §9-706 and RP §12-111.

Stephen H. Sachs, Attorney General
C. J. Messerschmidt, Staff Attorney

Avery Aisenstark,
Chief Counsel
Opinions and Advice