Could Ocean City, Maryland charge new construction an impact fee to pay for beach restoration, and would it be unconstitutional to charge only new development rather than existing property owners?

Plain-English summary

Ocean City's counsel asked the Attorney General three questions about funding the town's share of a state-led beach restoration project: whether the town could legally charge an "impact fee" on new development to raise the money, whether charging that fee only to new construction (and not existing property) would violate the Equal Protection Clause, and whether routing the fee through a broader capital improvement fund covering multiple projects would help the town's constitutional position.

The opinion concluded Ocean City did have statutory authority to impose the fee, since a 1981 Maryland law authorizing municipalities to charge fees "associated with the exercise of any governmental or proprietary function" covered financing the town's share of beach restoration, which is plainly a governmental function. On the harder equal protection question, the opinion found no fundamental right or suspect class involved, so a court would ask only whether there was a rational basis for charging new development but not existing property owners; drawing on special-assessment case law from several states, the opinion concluded courts generally uphold fees imposed only on new development when that development created or accelerated the need for the public improvement, even though existing property owners benefit too, so Ocean City would more likely than not prevail, especially if the impact fee were one revenue source among several rather than the sole funding mechanism.

Currency note

This opinion was issued in 1986. 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

Did a Maryland town need special legislative permission to charge new construction an impact fee for a public project like beach restoration?
The opinion concluded Ocean City already had that authority under Article 23A, §2(b)(33)(ii) of the Maryland Code, which let municipalities charge fees associated with a governmental or proprietary function, without needing separate specific legislation for the beach project itself.

Was it unconstitutional for Ocean City to charge an impact fee only to new buildings and not to existing property owners who would also benefit from a restored beach?
Not necessarily, according to the opinion. Applying the rational basis test used for economic and tax classifications, the Attorney General concluded that charging new development for a public improvement it helped necessitate would more likely than not survive an Equal Protection Clause challenge, even though existing property would benefit as well.

Would putting the impact fee revenue into a general capital improvement fund, rather than dedicating it only to the beach project, make the fee more legally defensible?
Yes. The opinion concluded that spreading impact fee revenue across several capital improvements benefiting new development, rather than funding one project alone, would strengthen the constitutional argument by making the classification of who pays look less like "manifest and unreasonable discrimination."

Background and statutory framework

Maryland municipalities generally cannot levy any tax or fee not in effect on January 1, 1954 without express General Assembly authorization under Article XI-E, §5 of the Maryland Constitution. The opinion identified Article 23A, §2(b)(33)(ii), enacted in 1981 partly in response to a Court of Appeals decision curbing municipal licensing and fee power, as sufficiently express authorization for fees "associated with the exercise of any governmental or proprietary function," and concluded that financing Ocean City's required local share of the pending state beach replenishment legislation fit within that grant.

On the equal protection question, the opinion analogized impact fees to the more developed body of special assessment law, under which fees must generally be proportionate to the benefit received but municipalities retain broad discretion in how they classify which properties to charge, and assessments carry a strong presumption of validity absent "manifest and unreasonable discrimination." Surveying cases from New Jersey, Utah, Missouri, Florida, and Wisconsin, the opinion found a consistent theme that a municipality may constitutionally place the full cost of a public improvement on new development when that development created or accelerated the need for the improvement, even though existing property owners would also benefit and would not be the sole beneficiaries required to justify the classification. The opinion cautioned that the outcome was "not free from doubt" if the impact fee were the sole funding source, but concluded the town's position would be stronger if the fee were one of several revenue measures or was used, through a capital improvement fund, to benefit new development across multiple projects rather than one alone.

Citations

Statutes:

• Article XI-E, §5 and §2 of the Maryland Constitution (municipal taxing authority limits and municipal classification)
• Article 23A, §2(b)(33), §2(b)(33)(i), and §2(b)(33)(ii) of the Maryland Code (municipal fee and charge authority)
• Article 23A, §10 (single statewide class of municipalities)
• Article 14 of the Maryland Declaration of Rights (no tax or fee without legislative consent)
• U.S. Const. amend. XIV, §1 (Equal Protection Clause)
• Proposed NR §8-1105.2, subsections (a), (b), (e), (h)(2), (i)(1), and (i)(2)(ii) (pending Ocean Beach Replenishment Fund legislation, House Bill 472/Senate Bill 272)
• Article 25, §§58, 59, §10B1/2, and §165 (examples of Maryland special assessment statutes)
• Chapter 565 and Chapter 684, Laws of Maryland 1981 (enacting Article 23A, §2(b)(33))
• Chapter 606, Laws of Maryland 1986 (enacted beach replenishment legislation, per the opinion's Editor's Note)

Cases:

• Campbell v. City of Annapolis, 289 Md. 300 (1981)
• Maryland-National Capital Park & Planning Comm'n v. Washington Business Park Associates, 294 Md. 302, 317 (1982)
• Board of County Comm'rs v. Caster, 285 Md. 233, 248-49 (1979)
• Leonardo v. Board of County Commissioners, 214 Md. 287, 307 (1957)
• Kansas City S. Ry. v. Road Improvement Dist. No. 3, 266 U.S. 379, 386-87 (1924)
• Beauchamp v. Somerset County Sanitary Comm'n, 243 Md. 98 (1966)
• Montgomery County v. Schultze, 57 Md. App. 781 (1984), aff'd, 302 Md. 481 (1985)
• Northampton Corp. v. Washington Suburban Sanitary Comm'n, 278 Md. 677, 684 (1976)
• Bassett v. Mayor and City Council of Ocean City, 118 Md. 114, 119-120 (1912)
• Deerfield Estates, Inc. v. Township of East Brunswick, 286 A.2d 498, 507-08 (N.J. 1972)
• Call v. West Jordan, 614 P.2d 1257, 1258 (Ut. 1980)
• Home Builders Association of Kansas City v. City of Kansas City, 555 S.W.2d 832 (Mo. 1977)
• Ivy Steel and Wire Co. v. City of Jacksonville, 401 F. Supp. 701 (M.D. Fla. 1975)
• Jordan v. Village of Menomonee Falls, 137 N.W.2d 442 (Wis. 1966)

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/1986/Volume71_1986.pdf

Original opinion text

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

MUNICIPALITIES

Impact Fees—Constitutional Law—Equal Protection-Ocean City Has Statutory Authority To Impose Impact Fees To Defray Cost Of Beach Restoration And Would More Likely Than Not Prevail Against Equal Protection Challenge.

March 24, 1986

Guy R. Ayres, III, Esquire

On behalf of the Town of Ocean City, you have asked for our opinion concerning several issues associated with the funding of the beach restoration project at Ocean City. Specifically, you pose the following questions:

1. Does Ocean City have statutory authority to charge impact fees to fund beach restoration?

2. If impact fees are authorized, does their imposition on new development only, and not on existing properties, violate the Equal Protection Clause of the United States Constitution?

3. Would any equal protection problem be alleviated if the impact fees were placed in a capital improvement fund that would be used to fund not only the beach restoration project, but also any major public improvements necessitated by new development?

For the reasons given below, we conclude as follows:

1. Ocean City has statutory authority to impose impact fees in order to provide revenue for beach restoration.

2. While the matter is not free from doubt, the charging of impact fees solely on new development only to fund the beach restoration project would more likely than not be sustained against an Equal Protection Clause challenge.

3. The creation of a capital improvement fund financed by new development impact fees, to be used for numerous capital improvements rather than exclusively for beach restoration, would strengthen the argument that the charging of impact fees does not violate the Equal Protection Clause.

I
Background

"Ocean City is a coastal resort community which exists on a naturally eroding barrier island." Department of Natural Resources, Maryland's Atlantic Coastal Beach: Options for the Future, at 1 (September 23, 1985). In recent years, the natural erosion of the beach has been hastened by "extensive development in Ocean City." Id.

Because the beach at Ocean City provides both significant revenue and important recreational opportunities for the State, it has come to be regarded as a public resource. For this reason, the Governor has concluded that it is in the State's best interests to undertake a beach restoration project.

Companion bills, House Bill 472/Senate Bill 272, that would accomplish this objective are currently pending in the General Assembly. This legislation would create an "Ocean Beach Replenishment Fund," out of which projects like bulkhead construction and dune restoration would be funded. Proposed §8-1105.2(a) and (b) of the Natural Resources Article ("NR" Article). Although the Fund would be created with State appropriations, State financial assistance for projects other than land acquisition "shall not exceed 50 percent of nonfederal costs." Proposed NR §8-1105.2(e). Conversely, Worcester County and Ocean City would be required to submit a "financing plan" under which they would pay the other half. Proposed NR §8-1105.2(h)(2) and (i)(1). The financing plan is to specify "the revenue sources to be relied upon to provide the local costs, which without limitation may include," as to the city:

"1. ordinary taxes authorized by the Tax-Property Article;

2. fees and charges authorized by Article 23A, Section 2(b)(33) or its charter; and
3. the admissions tax authorized by Article 81, Section 402 or designated portions thereof." Proposed NR §8-1105.2(i)(2)(ii).

Your letter states that one potential revenue source under consideration by Ocean City is "an Impact Fee on all new development." By "impact fee," we understand you to mean a fee that would be tied in to the set of approvals required for a new development and that would be payable in addition to current fees for required permits.

II
Authority to Impose Impact Fees

Article XI-E, §5 of the Maryland Constitution provides in pertinent part as follows:

"No ... municipal corporation shall levy any type of tax, license fee, franchise tax or fee which was not in effect in such municipal corporation on January 1st, 1954, unless it shall receive the express authorization of the General Assembly for such purpose, by a general law which in its terms and its effect applies alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article."1

The only potential "express authorization" for the imposition of impact fees is Article 23A, §2(b)(33) of the Maryland Code:

"Subject to the limitations imposed by the provisions of Article 81 and the Tax-Property Article, [a municipal legislative body has the power] to establish and collect reasonable fees and charges:

(i) For the franchises, licenses, or permits authorized by the law to be granted by a municipal corporation; or

(ii) Associated with the exercise of any governmental or proprietary function authorized by law to be exercised by a municipal corporation."

We conclude that Article 23A, §2(b)(33)(ii) does constitute sufficiently express authorization.2

As we discussed in 67 Opinions of the Attorney General 307 (1982), Article 23A, §2(b)(33) was part of a legislative response to a Court of Appeals decision that sharply curtailed the power of municipalities to license and impose fees upon various activities. See Campbell v. City of Annapolis, 289 Md. 300 (1981). This legislative correction, Chapters 565 and 684 of the Laws of Maryland 1981, was intended "to restore to municipal corporations the broad authority 'heretofore thought to exist' to levy fees and charges in connection with the exercise of their lawful powers." 67 Opinions of the Attorney General at 310.

In Part I above, we summarized the obligations that would be placed on Ocean City if House Bill 472/Senate Bill 272 were enacted. The protection and replenishment of the barrier island on which Ocean City is built is plainly an appropriate governmental function. See McQuillin, Municipal Corporations §9.05 at 631-32 (3rd ed. 1979). Although the State will design and manage the beach restoration project, the legislation requires that Ocean City bear a portion of the project costs. As the preamble to the legislation states, "The beaches should be rebuilt and maintained through a cooperative effort between the federal, State, and local governments."

In short, we believe that Ocean City's financing of its share of the project costs is "[a]ssociated with the exercise of [a] governmental or proprietary function authorized by law," within the meaning of Article 23A, §2(b)(33)(ii). Indeed, the express reference in House Bill 472/Senate Bill 272 to "fees and charges authorized by Article 23A, Section 2(b)(33)" would be pointless if it did not contemplate that fees to defray project costs might be charged under that provision.3

III
Equal Protection Requirements

A. Introduction

Your second question is whether imposition of an impact fee on new development only, and not on existing properties, would "deny to any person ... the equal protection of the laws." U.S. Const. amend. XIV, §1. Under this financing alternative, the purchasers or lessees of new development would ultimately pay all of Ocean City's share of the beach restoration project costs, even though many others would also benefit from the project.

It is axiomatic that if, as here, no fundamental right or suspect class is involved, a governmental decision to treat groups of its citizens differently will be sustained under the Equal Protection Clause unless the challenger can show that there is no rational basis for the classification. See Nowak, Rotunda, and Young, Constitutional Law 591 (2d ed. 1983). Thus, Ocean City may impose an impact fee on new development only and not on existing property if it has a rational basis for doing so.

As a general matter, the rationality of imposing the costs associated with new development on the developer is readily apparent:

"The development and subdividing of land produces an increased demand for community services that would necessitate the expenditure of government funds. Thus, it is reasoned, the subdivider who creates the demand ought to pay the price and pass it along to the owners of the subdivided and improved land." Maryland-National Capital Park & Planning Comm'n v. Washington Business Park Associates, 294 Md. 302, 317 (1982) (quoting 7 P. Rohan, Zoning and Land Use Controls §45.04m, at 45-92 (1982)).

Cf. Board of County Comm'rs v. Caster, 285 Md. 233, 248-49 (1979) (subdivision plat may be disapproved because of adverse impact on schools and roads).

This rational basis would likewise undergird the imposition of impact fees on new development, although we are aware of no Maryland cases that deal with such fees. The real issue is how closely linked the increased demand caused by new development and the government expenditure must be in order for the developer "'to pay the price.'" In examining this issue, we turn to the analogous issue of special assessments.

B. Special Assessments

1. Definition

"Assessment[s], as distinguished from other kinds of taxation, are the special and local impositions upon the property in the immediate vicinity of local improvements, which are necessary to pay for the improvement, and are laid with reference to the special benefit which the property is supposed to have derived therefrom." McQuillin, Municipal Corporations §38.01 at 10. See also Leonardo v. Board of County Commissioners, 214 Md. 287, 307 (1957) ("[T]he whole theory of a special assessment is based on the doctrine that the property against which it is levied derives some special benefit from the improvement.")4

2. Requirement of proportionality

In the law of special assessments, equal protection problems are raised if the assessment is not levied against landowners in proportion to the benefit they receive through the public improvement.

More than 50 years ago, the United States Supreme Court summarized as follows the applicability of equal protection doctrine to special assessments:

"By a long line of decisions in this court it has been settled that... the Legislature of a state may require that the cost of local public improvement, such as the construction or reconstruction of a public road, be distributed over the lands particularly benefited and charged against them according to their value, their area, or the benefits which they will receive; may itself determine what lands will be benefited, and in what proportions they will share in the benefits; and may avail itself, for the purposes of that determination, of any information which it deems appropriate and sufficient.... [O]nly where there is manifest and unreasonable discrimination in fixing the benefits which the several parcels will receive can the legislative determination be said to contravene the equal protection clause of [the Fourteenth] amendment." Kansas City S. Ry. v. Road Improvement Dist. No. 3, 266 U.S. 379, 386-87 (1924).

See also 58 Opinions of the Attorney General 18 (1973) (municipalities required to levy benefit charges according to benefit received by each property).

The results in any particular case reflect the court's judgment whether this flexible proportionality requirement has been violated. Compare, e.g., Beauchamp v. Somerset County Sanitary Comm'n, 243 Md. 98 (1966) (decision to apportion special assessment according to location of residence, rural or urban, held constitutional on ground that different groups would benefit in different amounts from proposed improvements) with Montgomery County v. Schultze, 57 Md. App. 781 (1984), aff'd, 302 Md. 481 (1985) (enhanced benefit to land from improvement based on proximity alone not sufficient to require more proximate landowners to shoulder entire cost of project, when project will be of benefit to and be primarily used by public at large; to justify special assessment, there must be special benefit to those assessed).

However, beyond the basic requirement that special assessments be proportionate to benefits conferred, such assessments are generally presumed valid and constitutional, and municipalities are accorded broad discretion in their classifications of groups to be charged, and in their imposition of such fees. Classifications by municipalities are generally assumed to be rationally related to the purpose behind a given special assessment. Northampton Corp. v. Washington Suburban Sanitary Comm'n, 278 Md. 677, 684 (1976). ("Our cases made it abundantly clear that so long as similarly situated properties are similarly treated under a definite and just plan adopted by governmental authorities in the exercise of their discretion, the action will not be disturbed by the courts where neither fraud nor mistake appears.") See also Leonardo v. Board of County Commissioners, 214 Md. at 307-08.

Indeed, these principles have been applied to the funding of one of the principal amenities of Ocean City, its boardwalk. See Bassett v. Mayor and City Council of Ocean City, 118 Md. 114, 119-120 (1912) (General Assembly has broad discretion in judging what properties should be assessed to pay for boardwalk).

3. Imposition of special assessments on new development

In spite of the general requirement in special assessment law that costs be proportionate to benefits received, some cases have upheld special assessments even though a disproportionate charge was imposed on new development. These cases generally draw on the broad discretion afforded municipal authorities in the imposition of special assessments or impact fees. In addition, they accept the argument that disproportionate charges to new development are justified when new development necessitates public improvement that previously was merely desirable. Otherwise put, courts have sometimes viewed new development as the final "straw that broke the camel's back," forcing the municipality to undertake public improvements it previously thought of as potentially beneficial but not immediately imperative.

The cases in this area do not represent a fully developed, coherent body of law. Rather, they reflect disparate views as to the showing that will sustain the imposition of disproportionate charges on new development. But in general, their overall import is that strict equality between the benefit received through public improvement and the burden of a fee is not a constitutional requirement.

Perhaps the most relaxed view of the benefit-burden relationship is reflected in Deerfield Estates, Inc. v. Township of East Brunswick, 286 A.2d 498, 507-08 (N.J. 1972). That case involved a city's refusal to install a water main to service subdivision development pending the payment of a sewer extension fee by the developer. The court suggested that municipalities had broad discretion in allocating the costs of a water main extension project:

"First, it may be undertaken entirely at municipal cost and expense.... In the second place the municipality may undertake the project as a local improvement and assess the costs against the owners of the properties benefited.... The third course is to require that the work be done at the expense of the developer either with or without a formula providing for partial or total reimbursement." 286 A.2d at 507.

The restraint on the municipality's discretion is simply that the results be "equitable": "What [the municipality] may not do is to extend mains throughout one development at general municipal expense and then turn about and impose upon another developer the full cost." Id. But apart from this obvious form of discrimination, "[t]he demands of equality do not... preclude reasonable differentiation." The rule of equitable treatment "must be given a pragmatic application":

"Complete equality of treatment may sometimes be impossible.... Equality of treatment may upon occasion be forced to give way before some supervening public interest." 286 A.2d at 507-08.

Other cases have required that the municipality establish a reasonable, but not absolute, relationship between the need for a public improvement and the occurrence of new development. For example, in Call v. West Jordan, 614 P.2d 1257, 1258 (Ut. 1980), the court held that "in lieu" fees imposed on new developers must be used so as to demonstrably benefit a new subdivision, but need not benefit that development only.5 In that case, subdividers brought an action challenging a city ordinance requiring them either to dedicate part of their land for parks or pay an equivalent value to the city for flood control or park and recreational facilities. The court held that the fee must "be used in such a way as to benefit demonstrably the subdivision in question. This is not to say that the benefit must be solely to the particular subdivision, but only that there be some demonstrable benefit to it." 614 P.2d at 1259 (emphasis in original).

The Jordan court quoted from another special assessment case, Home Builders Association of Kansas City v. City of Kansas City, 555 S.W.2d 832 (Mo. 1977), in which the Missouri Supreme Court held that special assessments are constitutionally valid where "the burden cast upon the subdivider is reasonably attributable to his activity." (Emphasis in original.) The test imposed by that court was summarized by it as follows: "Insofar as the establishment of a subdivision within a city increases the recreational needs of the city, then to that extent the cost of meeting that increase may reasonably be required of the subdivider." 555 S.W.2d at 835 (emphasis omitted). In other words, those who bring about an increase in demand may properly be required to bear the full cost of such a recreational improvement even though they are not the sole beneficiaries of it; conversely, the other beneficiaries need not be required to pay a share of the cost.

Even cases requiring a very strong showing of connection between the imposition of a fee and the onset of new development do not require a showing of exclusive benefit. In Ivy Steel and Wire Co. v. City of Jacksonville, 401 F. Supp. 701 (M.D. Fla. 1975), the imposition of a water pollution control charge solely on new development was upheld, in spite of the obvious fact that existing landowners would benefit from pollution control as much as new developers. The court reasoned that it was constitutional to impose the fee on new development only because new development created the "immediate need" for the pollution control measure. The court supported its conclusion by pointing out that "[o]ur system of government frequently imposes certain burdens on some groups while exempting others ... despite the [result] that, while all benefit, only some bear the burden." 401 F. Supp. at 705. See also Jordan v. Village of Menomonee Falls, 137 N.W.2d 442 (Wis. 1966) (although not holding that this level of connection was always required to make municipal fee constitutional, court found additional schools, parks, and recreational facilities would not have been necessary in this case but for new development; therefore, new properties could constitutionally bear full burden of funding public improvement).

C. Conclusion

As the discussion above suggests, we cannot predict with confidence the outcome of an equal protection challenge to the proposed impact fee. If the impact fee were to be the sole revenue source for Ocean City's share of the project costs, a court might view the burden on new development as fatally disproportionate and therefore a violation of the Equal Protection Clause. However, this result is far from inevitable, especially given the broad discretion afforded taxing authorities under the rational basis test. If, for example, the impact fee were part of a mix of revenue measures, so as to assure greater proportionality, or if new development can fairly be said to be the catalyst that transforms a merely desirable project into an essential one, Ocean City would likely prevail in defending against an equal protection challenge.6

IV
Capital Improvement Fund

Your final question posits the creation of a capital improvement fund, funded by impact fees on new development only but used to fund not only the beach restoration project but also many other types of major public improvements. As we understand it, the capital improvement fund would support additional sidewalks, park and recreational facilities, and sanitation facilities, all of which would be necessary because of the additional drain on public resources that occurs when an area's population increases. You ask whether the equal protection problem that might otherwise exist would be lessened by the use of such a capital improvement fund.

We believe that creation of a capital improvement fund would strengthen the arguments that Ocean City would be able to make in support of the constitutionality of the impact fee. As discussed in Part II B 3 above, the imposition on new development of the full cost of an improvement can be justified if new development has occasioned the need for the improvement, even if other property owners benefit as well. The proposed capital improvement fund would, in effect, identify the beach restoration project as one such improvement along with many others. Because a categorization of this kind is to be sustained unless there is "manifest and unreasonable discrimination," the capital improvement fund's spreading of impact fee revenues among several projects of benefit to new development would improve the case for constitutionality. Kansas City S. Ry. v. Road Improvement Dist. No. 3, 266 U.S. at 386.

V
Conclusion

In summary, it is our opinion that:

1. Ocean City has statutory authority to impose impact fees in order to provide revenue for beach restoration.

2. While the matter is not free from doubt, the charging of impact fees solely on new development to fund the beach restoration project would more likely than not be sustained against an Equal Protection Clause challenge.

3. The creation of a capital improvement fund financed by new development impact fees, to be used for numerous capital improvements rather than exclusively for beach restoration, would strengthen the argument that the charging of impact fees does not violate the Equal Protection Clause.

Stephen H. Sachs
Attorney General
Mary C. Keane
Staff Attorney

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: The ocean beach replenishment legislation referred to in Part I of this opinion was enacted as Chapter 606, Laws of Maryland 1986, codified at §§8-1105.2 and 8-1105.3 of the Natural Resources Article.

1 Article XI-E, §2 authorizes the General Assembly to classify municipalities "into not more than four classes based on population." In Article 23A, §10 of the Maryland Code, the General Assembly determined that all Maryland municipalities are members of a single class.

2 In our view, Article 23A, §2(b)(33)(i) does not authorize the proposed impact fee. See 67 Opinions of the Attorney General 307, 311 (1982) (municipality does not have authority under Article 23A, §2(b)(32) and (33)(i) "to impose a license tax or fee to raise revenue that bears no reasonable relation to the expense of regulation").

3 The statutory underpinning for impact fees discussed above also satisfies the requirement of Article 14 of the Maryland Declaration of Rights that no tax or fee be charged "without the consent of the Legislature."

4 A number of provisions in the Maryland Code impose special assessments. See, e.g., Article 25, §§58, 59 (assessments for ditch and drainage projects, imposed "against each owner" in "sum proportional to the entire benefits accruing to each owner from the ... improvements"); Article 25, §10B1/2 (special assessment levied against any land developer "subdividing and/or developing" in Carroll County, to reflect cost of "additional educational facilities, water and sewerage, sanitation or other such facilities"); Article 25, §165 ("benefit charge" assessed against "all real property ... benefited by" erosion prevention works set up by statute).

5 "In lieu" fees are fees imposed in lieu of the dedication of land by a new developer for park or recreational facilities.

6 The pending legislation, House Bill 472/Senate Bill 272, authorizes a number of revenue-raising devices apart from the impact fees. See Part I above. If Ocean City concludes that the possibility of an equal protection challenge to the impact fee makes use of that revenue measure too problematic, it will nevertheless have a number of alternative methods at its disposal if the legislation is enacted.