Can a Maryland town remove part of its own territory through a charter amendment?

Plain-English summary

In 1987, a Maryland state senator asked the Attorney General whether a municipal corporation could detach, or remove, part of its own territory. The question arose from a dispute in the Town of Somerset, where a landowner wanted to detach an 18.19-acre tract from the town so it could develop the property without the town's zoning and other controls, and the town opposed the move.

The Attorney General concluded that a municipality most likely does have the power to detach territory by amending its own charter, standing by a 1956 opinion of the office that had reached the same conclusion under the Municipal Home Rule Amendment to the Maryland Constitution. The Home Rule Act itself, unlike its detailed procedures for annexation, contained no procedure for detachment at all, and the opinion traced the legislative history showing the General Assembly had deliberately dropped a detachment-and-annexation provision from the original 1955 bill. The office found that omission ambiguous on its own, but concluded that the constitutional Home Rule Amendment likely grants the power independently, because detachment (unlike annexation) affects mainly the people and property already inside the municipality, so it is more naturally a matter of local self-government. Even so, the opinion did not treat the question as settled. It reviewed a split of out-of-state authority and Maryland cases that had never squarely addressed detachment, called the issue "closer" than the 1956 opinion had suggested, and again urged the legislature to adopt a uniform statutory procedure for detachment comparable to the one already on the books for annexation.

Currency note

This opinion was issued in 1987. 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

Could a Maryland municipality remove part of its own territory in 1987 without a specific state law authorizing it?
According to this opinion, most likely yes. The Attorney General concluded that the Municipal Home Rule Amendment itself, Article XI-E of the Maryland Constitution, probably gives a municipality the power to detach territory through its own charter amendment process, even though no statute spelled out a detachment procedure the way one existed for annexation.

Was this Attorney General opinion definitive on whether a Maryland town could detach territory?
No. The opinion explicitly called the question uncertain, noted that Maryland courts had never decided whether detachment counts as a purely local matter under the Home Rule Amendment, and recommended that the General Assembly pass a general law setting out clear detachment procedures rather than leaving the issue to case-by-case charter amendments.

Did this opinion conflict with the AG's earlier opinion about Highland Beach's boundary?
No, the opinion said the two were consistent. A companion 1987 opinion (72 Opinions of the Attorney General 176) had concluded that the legislature itself could not redraw a single town's boundary by special statute. This opinion explained that a town detaching its own territory through its own charter amendment is a different, and more clearly local, kind of action than the legislature acting on a particular town's boundary, so the two conclusions did not contradict each other.

Background and statutory framework

The Home Rule Act, Article 23A of the Maryland Code, sets out detailed procedures a municipality must follow to annex additional territory under Article 23A, §19, but contains no comparable provision for detaching territory. The opinion traced the legislative history of the Home Rule Act to show this gap was intentional: the bill that became the Act, Senate Bill 5 of the 1955 session, originally let a municipality "change" its boundaries either to enlarge or decrease them, but that language was amended before passage to refer only to enlarging boundaries, per Chapter 423, Laws of Maryland 1955, leaving detachment procedures out of the statute entirely.

Because the statute was silent, the opinion turned to the Municipal Home Rule Amendment itself, Article XI-E, §3 of the Maryland Constitution, which gives municipalities the power to amend or adopt their own charters. A 1956 opinion of the Attorney General had already concluded that this constitutional grant, standing alone, empowered municipalities to detach territory by charter amendment in the absence of any statutory procedure. This 1987 opinion revisited that conclusion because a legal memorandum submitted on behalf of a developer argued the 1956 opinion had been undermined by a separate 1987 opinion (72 Opinions of the Attorney General 176), which had concluded that the General Assembly could not fix or redraw a single municipality's boundary by special legislation. The office concluded the two opinions were not in tension: because the legislature lacked power to legislate a particular town's boundary, that power had to reside with the municipality itself, which supported rather than undermined the 1956 opinion.

The opinion analyzed Maryland case law on what counts as a matter of "purely local or municipal concern" under the Home Rule Amendment, and found no Maryland decision resolving detachment specifically. It also surveyed a split among other states' courts, with some holding detachment to be a matter of statewide concern outside home-rule power, and others holding that home-rule municipalities may detach territory by charter amendment on their own constitutional authority. The opinion concluded that detachment is different from annexation because it mainly affects people and property already within the municipality's own boundaries rather than imposing burdens on outsiders, and for that reason is more properly local in character. On that basis, and out of respect for over thirty years of reliance on the 1956 opinion, the office declined to overrule it, while again recommending that the legislature adopt a general statutory detachment procedure to protect residents affected by a detachment decision.

Citations

Statutes:

• Article 23A, §19 (annexation procedures under the Home Rule Act)
• Article 23A, §19(a) (as amended by Chapter 423, Laws of Maryland 1955, limiting the section to enlargement of boundaries)
• Article 23A, §9A(a)(4) (filing of charter amendments and boundary changes with the Department of Legislative Reference)
• Article 23A, §22 (boundary description as part of a municipal charter)
• Article 23A, §42 (effect of charter repeal)
• Article XI-E, §3 (Municipal Home Rule Amendment, power to amend or adopt a charter)
• Article XI-E, §4 (power to repeal a charter)
• Chapter 795, Laws of Maryland 1906 (incorporation of the Town of Somerset)
• Chapter 423, Laws of Maryland 1955 (amendment removing detachment language from the Home Rule Act bill)

Cases:

• Williams v. Loyola College, 257 Md. 316, 329 (1970)
• Popham v. Conservation Comm'n, 186 Md. 62, 71 (1946)
• Mitchell v. Register of Wills, 227 Md. 305, 310 (1962)
• Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980)
• White v. King, 244 Md. 348, 354 (1966)
• Birge v. Town of Easton, 274 Md. 635, 644 (1975)
• Mayor and Commissioners of Rockville v. Brookeville Turnpike Construction Co., 246 Md. 117, 129 (1967)
• Prince George's County v. Laurel, 262 Md. 171, 189-90 (1971)
• State ex rel. Andersen v. Leahy, 199 N.W.2d 713 (Neb. 1972)
• Village of Beachwood v. Board of Elections, 148 N.E.2d 921, 923 (Ohio 1958)
• Williams v. City of Wilmington, 171 N.E.2d 757, 769 (Ohio Ct. C.P. 1960)
• Flavel Land and Development Co. v. Leinenweber, 158 P. 945, 946 (Or. 1916)
• People v. Ellis, 97 N.E. 697, 699 (Ill. 1912)
• Schmidt v. City of Cornelius, 316 P.2d 511, 517 (Or. 1957)
• State ex rel. City of Shawano v. Engel, 177 N.W. 33 (Wis. 1920)

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/1987/Volume72_1987.pdf

Original opinion text

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

Local Government—Municipal Corporations—Detachment Of Territory—Municipalities May Detach Territory Through Charter Amendment.

December 30, 1987

The Honorable Laurence Levitan
Senate Of Maryland

You have requested our opinion concerning the authority of a municipal corporation to detach a portion of its territory. Your question arises from a proposal by the Town of Somerset to detach a tract of land within the current boundaries of that municipality.

For the reasons stated below, we conclude that a municipal corporation has the authority to detach territory by amending its charter. However, this conclusion is by no means free from doubt, and we urge the General Assembly to consider the enactment of generally applicable procedures for detachment.

I
Background

The Town of Somerset was incorporated by Chapter 795, Laws of Maryland 1906. We understand that the town's boundaries, though subsequently altered through annexation, have always encompassed the particular 18.19 acre tract of land in question.

The owner of the tract, Community Somerset, seeks to develop it. The town has opposed these plans, and the proposal to detach Community Somerset's land from the town is evidently but one battle in a long war over the land's development. However, the merits of this controversy are immaterial to the question you have posed; whether a municipality has power to detach territory does not turn on the reasons underlying its desire to do so.

II
The 1956 Attorney General's Opinion

The owner of the land has submitted a legal memorandum, attached to your inquiry, arguing that the town lacks the authority to detach territory. The Town of Somerset has submitted a legal memorandum arguing that it does have that authority under the Municipal Home Rule Amendment, Article XI-E of the Maryland Constitution.

Among other disagreements, the developer and the town dispute the correctness of a 1956 Opinion of the Attorney General directly on point. In 41 Opinions of the Attorney General 133 (1956) ("1956 Opinion"), the Attorney General was asked for an opinion "as to the procedure by which a municipal corporation may provide for detachment or excision of territory." Pointing out that the Municipal Home Rule Amendment "confers all powers of municipal government to the municipal corporation except those reserved to the Legislature or brought about by general legislation by the Legislature," the 1956 Opinion concluded that "there would seem to be no doubt that a municipal corporation has power and authority to detach." 41 Opinions of the Attorney General at 134. In the absence of any statutory procedure for detachment, "the alternative procedure of detachment by charter amendment is available to the municipal corporation." Id.

Issued only two years after ratification of the Municipal Home Rule Amendment, the 1956 Opinion is the kind of contemporaneous and longstanding construction of the law that is "entitled to substantial weight." Williams v. Loyola College, 257 Md. 316, 329 (1970). The General Assembly "has not seen fit to interfere with such construction by annulling it through legislation." Popham v. Conservation Comm'n, 186 Md. 62, 71 (1946). Moreover, the conclusion in the 1956 Opinion has since been followed in both the actions of municipalities and the advice-giving of this office. See, e.g., Resolution of the Burgess and Commissioners of Middletown (December 11, 1978); letter of advice from Assistant Attorney General Richard E. Israel to Delegate Timothy F. Maloney (February 7, 1984).

However, a passage in a recent opinion expressed some uncertainty about the conclusion in the 1956 Opinion. 72 Opinions of the Attorney General 176, 179 (1987). The question presented in the recent opinion was whether the Municipal Home Rule Amendment prevented the General Assembly from amending the Town of Highland Beach's act of incorporation to excise land originally included within the town's boundaries by mistake. The opinion concluded that the amendment did prohibit legislation to change the town's boundaries. Citing the 1956 Opinion, we went on to suggest that Highland Beach consider whether the objective could be accomplished by an alternative means, charter amendment by the town itself. We also observed that "this course is legally uncertain." Apart from this discussion in passing, our opinion did not address the charter amendment question. Nevertheless, the developer's legal memorandum characterizes the holding of the 1956 Opinion as having been "seriously undermined, if not destroyed," by our recent opinion. Memorandum from Robert R. Harris, Esquire to Community Somerset Associates, at 13 (Sep. 22, 1987) ("Harris Memorandum"). The 1956 Opinion is said to be "an anachronism with no precedential value." Harris Memorandum at 6.

Although the opinions of this office do not have the binding effect of judicial decisions, nevertheless they "serve as important guides to those charged with the administration of the law." Mitchell v. Register of Wills, 227 Md. 305, 310 (1962). In the absence of judicial decisions, Attorney General opinions promote steady application of the law. Accordingly, this office stands by its precedent, much as a court would. Like the judicial doctrine of stare decisis, our respect for precedent is not simply reflexive conservatism. It "serves the broader societal interests in even-handed, consistent, and predictable application of legal rules. When rights have been erected or modified in reliance on established rules of law, the arguments against their change have special force." Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980) (Stevens, J.). We do not overrule a prior opinion simply because we might have resolved a close question the other way, were we first presented with it. See 67 Opinions of the Attorney General 98, 99 (1982). At the same time, we will not perpetuate a significant mistake in legal reasoning. We are also prepared to recognize that a prior opinion has been eroded by changed circumstances. See White v. King, 244 Md. 348, 354 (1966).

The developer argues in part that the 1956 Opinion was wrong because it ignored the significance of the legislative history of Article 23A, §19 of the Maryland Code, the annexation provision of the Home Rule Act. Further, the developer suggests that a subsequent Court of Appeals decision on annexation "effectively overrules the [1956] opinion." Harris Memorandum at 7. In Part III below, we discuss the Act's legislative history; in Part IV, the scope of the Amendment.

III
Home Rule Act

The Home Rule Act, Article 23A of the Maryland Code, contains no procedures for the detachment of territory. This omission stands in striking contrast to the specification of detailed procedures for annexation in §19.

The legislative history makes clear that this omission was intentional. As introduced, the bill that became the Home Rule Act contained a provision specifying the procedures for any change in corporate boundaries, whether to increase or decrease the size of the municipality. Senate Bill 5 of the 1955 Session of the General Assembly initially provided as follows:

"The legislative body, by whatever name known of every municipal corporation in this State may change the corporate boundaries thereof as in this sub-heading provided. The change may be either to increase or to decrease the area within the corporate boundaries."

By amendment, however, the second sentence of this subsection was deleted, and the term "change" was altered to "enlarge."1 See Chapter 423, Laws of Maryland 1955.2 Plainly, the General Assembly consciously decided to exclude detachment procedures from the Home Rule Act.

However, though this action is clear, its significance is not. If the General Assembly thought that the Municipal Home Rule Amendment itself did not empower municipalities to detach territory, the deletion of this provision would reflect a legislative intent to leave municipalities powerless in this regard. On the other hand, if the General Assembly thought that the Municipal Home Rule Amendment itself empowered municipalities to detach territory, the excision of statutory procedures might merely reflect a legislative intent that the power be exercised through the ordinary charter amendment process, rather than through a special statutory procedure.

Given the dearth of legislative history, the point cannot be established conclusively. However, the General Assembly did have before it several reports to the effect that the proposed Home Rule Bill was merely procedural in nature, and that if the bill were not enacted, the powers of self-government granted by the Municipal Home Rule Amendment would be "left open to individual handling by the separate towns and cities of the State by way of amendments to local charters in each instance." 1 Legislative Council Report (1955 Session) at 205. See also Report of the Commission on the Administrative Organization of the State of Maryland (Sobeloff Commission) at 5 (1952).

We conclude that the omission of detachment procedures from the Home Rule Act does not preclude the exercise of the power.3 Hence, we turn to the Municipal Home Rule Amendment to determine if the Amendment itself grants that power.

IV. Municipal Home Rule Amendment

A. Introduction

Article XI-E, §3 of the Maryland Constitution vests in the Town of Somerset, and all other municipal corporations, "the power and authority, (a) to amend or repeal an existing charter for local laws relating to the incorporation, organization, government, or affairs of said municipal corporation heretofore enacted by the General Assembly of Maryland, and (b) to adopt a new charter, and to amend or repeal any charter adopted under the provisions of this Article." The 1956 Opinion concluded, with certitude but without elaboration, that "there would seem to be no doubt that a municipal corporation has power and authority to detach" under the Municipal Home Rule Amendment. 41 Opinions of the Attorney General at 134. Given the state of the law, we are more doubtful.

B. Maryland Case Law

The general purpose of Article XI-E is "to permit municipalities to govern themselves in local matters." Birge v. Town of Easton, 274 Md. 635, 644 (1975). Citing the report of the Sobeloff Commission, which led to enactment of the Municipal Home Rule Amendment, the Court of Appeals went on to observe that "final determination of what constitutes a matter of purely local or municipal concern, i.e., a matter relating to the 'incorporation, organization, government, or affairs' of the municipality, is for the courts to make in light of existing circumstances." Id. The standard is whether the effect of the action "'is likely to be felt by a considerable number of people outside the city and in a rather strong degree . . . .'" Id., quoting C. Antieau, Municipal Corporation Law §3.36 (1973). See also 62 Opinions of the Attorney General 275, 291-92 (1977).

To our knowledge, Maryland courts have never decided the question of whether the detachment of territory is "a matter relating to the 'incorporation, organization, government, or affairs' of the municipality." On the one hand, few things could be more integral to the "incorporation, organization, government, or affairs" of a municipality than the description of the territory encompassed within it. "[A] description of the boundaries of a municipal corporation is said to be an essential part of its charter, and to be essential to corporate existence." 2 McQuillan, Municipal Corporations §7.02, at 271 (3d ed. 1979) ("McQuillan"). See Article 23A, §22. For that reason, we concluded that the General Assembly lacked the power to legislate regarding the detachment of territory from one municipality. 72 Opinions of the Attorney General at 178. If the General Assembly lacks the power, it follows that each municipality enjoys it.

On the other hand, the Court of Appeals has suggested that municipalities "have no inherent powers to add to their size," notwithstanding the Municipal Home Rule Amendment. Mayor and Commissioners of Rockville v. Brookeville Turnpike Construction Co., 246 Md. 117, 129 (1967). Brookeville involved the question of whether a municipality might impose conditions on annexation. The decision characterized Article 23A, §19 as a provision "for the power to annex . . . ." 246 Md. at 129. Annexation, then, is not "a matter of purely local or municipal concern," for it places the correlative benefits and burdens of the municipality on persons outside the municipality. See Prince George's County v. Laurel, 262 Md. 171, 189-90 (1971). As the leading treatise summarizes, annexation "relates to matters extramural to the municipal corporation . . . [and] is not a proper function of local self-government." 2 McQuillan §7.10, at 297-98.

Detachment is different in one respect: it removes the benefits and burdens of the municipality from persons within the municipality. It does not "affect[t] persons residing beyond a municipality . . . ." Prince George's County v. Laurel, 262 Md. at 190. However, it does affect, at least incidentally, the affairs of another political subdivision, the county that might be required to provide services previously provided by the municipality. See 44 Opinions of the Attorney General 136, 137 (1959).

C. Other Case Law

Out-of-state precedent can be found on both sides of the question. Some cases hold that detachment is not merely local in nature and therefore is not within a municipality's home rule powers. For example, in State ex rel. Andersen v. Leahy, 199 N.W.2d 713 (Neb. 1972), the Nebraska Supreme Court considered whether the power to detach territory was among the local legislative powers delegated to a municipality by state statute. The court held that it was not: "There is no doubt that the detachment of territory from a municipal corporation, like annexation, is a matter of statewide concern, and not one of local or municipal concern." 199 N.W.2d at 715. See also Village of Beachwood v. Board of Elections, 148 N.E.2d 921, 923 (Ohio 1958) ("the detachment of territory from a municipality is not a subject which falls within the sphere of local self-government and to be left to the whims of each municipality . . .").4

Other out-of-state authority supports the proposition that municipalities enjoying constitutional home rule may detach territory through charter amendment by virtue of their constitutional power alone. The Oregon Supreme Court put it this way: "[A] change in the boundaries of a municipality excluding territory, theretofore subject to its authority, is a legitimate amendment of its charter which may be accomplished by the vote of its legal electors." Flavel Land and Development Co. v. Leinenweber, 158 P. 945, 946 (Or. 1916). See also People v. Ellis, 97 N.E. 697, 699 (Ill. 1912); Schmidt v. City of Cornelius, 316 P.2d 511, 517 (Or. 1957); State ex rel. City of Shawano v. Engel, 177 N.W. 33 (Wis. 1920). See generally 2 McQuillan §7.24, at 403.

D. Summary

The question of whether municipalities have power under the Home Rule Amendment to detach territory through charter amendment cannot be answered confidently, given the current state of the law. On balance, the better view is that the Amendment does itself grant power to detach.5 Were we to conclude otherwise, we would have to overrule not only the 1956 opinion but also 72 Opinions of the Attorney General 176 (1987), which advised that the General Assembly lacked the power to detach territory from a particular municipality. But, in our view, these opinions are not wrong. The main effect of detachment, unlike annexation, falls on residents and property owners within a municipality, and so is primarily of local concern.

Moreover, as a practical matter, detachment would sometimes be the best solution to correct a vexing problem, a misdescribed boundary, to take the recent example. The Amendment ought to be construed to accommodate that practical interest.

V
Conclusion

Over thirty years ago, this office concluded that the Municipal Home Rule Amendment empowers a municipality to detach land through charter amendment. Municipalities have acted on that view of Article XI-E, and the General Assembly has evidently been content enough with the conclusion that it has enacted no law on the subject. To be sure, we think that the question is closer than the 1956 Opinion suggests. However, the 1956 Opinion took a reasonable position, indeed, the better view of the law, and we find no basis on which to overrule that opinion now.

At the same time, we continue to be concerned that charter amendment procedures may not adequately protect the interest of those most affected by a municipality's decision to detach land, those who live or own property there.6 We reiterate what we said in our recent opinion about the detachment of territory from the Town of Highland Beach: "The best solution to the problem, one that would assist Highland Beach and any other municipality that might discover a similar problem, while at the same time preserving the rights of those affected, would be enactment by the General Assembly of a general law specifying detachment procedures, comparable to the procedures for annexation in Article 23A, §19." 72 Opinions of the Attorney General at 179.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 The amendment made corresponding changes to the rest of §19. The original bill's phrase "the area to be affected" was changed throughout to "the area to be annexed."

2 Article 23A, § 19(a) now reads as follows: "The legislative body, by whatever name known, of every municipal corporation in this State may enlarge the corporate boundaries thereof as provided . . . in this subheading . . . ."

3 We note one indication in the Home Rule Act of the General Assembly's seeming recognition of a municipality's power to detach land through charter amendment. Article 23A, §9A(a)(4) provides for deposit with the Department of Legislative Reference of a "charter amendment, ordinance, referendum or any other device by which the corporate boundaries of the municipality are enlarged or otherwise changed."

4 In Williams v. City of Wilmington, 171 N.E.2d 757, 769 (Ohio Ct. C.P. 1960), the court allowed a taxpayer to intervene in a detachment proceeding because "a matter of the public boundaries of a municipality involves the public generally."

5 A municipality unquestionably has power under the Home Rule Amendment to repeal its charter altogether, in a sense, to detach all of its territory. See Article XI-E, §4. But the effect of charter repeal is drastic. See Article 23A, §42. That a municipality may terminate its existence altogether does not imply that a municipality may also detach some part of its territory while maintaining its existence.

6 We should not be understood as addressing the particular situation in Somerset. As stated in Part I above, we are not concerned with the merits of that controversy and express no views about it. Rather, we have in mind the potential for unfairness, or even discrimination, when the majority of voters in a town may excise a group of the town's residents over the latter's objections.