Can the Mayor and Town Council together appoint members to a Maryland town's planning commission, or does state law require the mayor alone to appoint them?

Plain-English summary

Ocean City's Mayor and Council jointly appointed members to the town's Planning Commission and Board of Zoning Appeals, with the Mayor and each council member casting one vote. The town's city attorney asked whether this practice complied with Article 66B, the state law governing municipal planning and zoning powers, which on its face seemed to require appointment by a single "local executive" where one exists. The Attorney General concluded the joint appointment practice was lawful, because Ocean City's Charter gives the Council, not the Mayor, all of the town's executive power except for a mayoral veto, meaning Ocean City's Mayor is not a "local executive" under Article 66B and the statute's default rule for local legislative bodies (which allows the body to designate whoever it wants as the appointing authority, including the Mayor and Council jointly) governs instead.

Currency note

This opinion was issued in 1988. 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

Does Maryland law require a town's mayor alone to appoint planning commission members?
Only if the mayor qualifies as the town's "local executive" under Article 66B, meaning an elected official who actually exercises the executive authority of the town. The opinion concluded that where a mayor is not that kind of chief executive, such as in Ocean City, the town's legislative body may instead designate whoever it wants, including the mayor and council jointly, as the appointing authority.

Was Ocean City's Mayor a "local executive" for purposes of this law?
No. The opinion found that even though the Mayor is elected, the Ocean City Charter gives "all the legislative and, except for the mayoral veto, all the executive powers of the town" to the Council, so the Mayor does not effectively exercise executive authority and does not meet the statutory definition.

Did this same reasoning apply to appointments to the Board of Zoning Appeals?
Yes, with a partial twist. The opinion found the relevant statute for the Board of Appeals technically required appointment "by the local executive, confirmed by the local legislative body," which did not fit Ocean City's structure at all, but concluded the statute's introductory grant of authority "to provide for the appointment of a board of appeals" let the local legislative body step in and make appointments itself when there was no local executive, while suggesting the town formally codify this practice in its own ordinances.

Background and statutory framework

Ocean City's ordinance provided for its Planning and Zoning Commission to be appointed by the "Mayor and Council," raising the question whether Article 66B, §3.02, which requires appointment "by the local executive and confirmed by the local legislative body" where there is "a single local elected executive," instead required the Mayor alone to appoint members subject to Council confirmation. The opinion traced the history of this appointment provision from its 1933 enactment (which used the term "Mayor," expressly including a "City Manager" within that term, and required the elected mayor, where one existed, to make regular appointments) through the 1969 Planning and Zoning Law Study Commission's recommendations and the resulting 1970 statutory revision, which introduced the terms "local executive" and "local legislative body." The opinion found that dropping the "City Manager" reference from the definition of "local executive" in the 1970 revision most plausibly reflected an intent to limit that term to an elected official who actually exercises a jurisdiction's executive authority, not merely any chief administrator, and that the statute's continued reference to "a single local elected executive" in §3.02 was likely just an unintentional holdover from the earlier drafting.

Applying that understanding to Ocean City, the opinion looked to the town's Charter, which vests the Council with "all the legislative and, except for the mayoral veto, all the executive powers of the town." Because the Mayor does not effectively exercise Ocean City's executive authority despite being elected, the opinion concluded Ocean City has no "local executive" within the meaning of Article 66B, §§1.00 and 3.02, so the mandatory single-executive-appoints rule did not apply. Instead, the default rule governed: the "local legislative body," here the seven-member Council, could appoint members itself or designate any person or persons it chose as the appointing authority, including the Mayor and Council acting jointly as Ocean City's own ordinance already provided.

The opinion reached the Board of Zoning Appeals through a related but distinct path. Article 66B, §4.07 required (in the absence of the introductory grant of general appointment authority) that Board of Appeals members be "appointed by the local executive, confirmed by the local legislative body," a structure that, again, does not fit a town with no local executive at all. The opinion concluded that in this circumstance the local legislative body could rely on §4.07's separate introductory authority "to provide for the appointment of a board of appeals" to make the appointments itself, which sanctioned Ocean City's existing Mayor-and-Council practice, though the opinion suggested the town formally update its own code to reflect this rather than leaving §105-119 worded as if the Mayor appointed alone with Council confirmation.

Citations and references

Statutes:

• Article 23A, §2(b)(30) of the Maryland Code
• Article 66B, §3.01
• Article 66B, §3.02
• Article 66B, §1.00
• Article 66B, §4.07
• Article XI-E, §6 of the Maryland Constitution
• Ocean City Code §14-2
• Ocean City Code §105-119
• Ocean City Charter §§C-401, C-413A and C-604
• Chapter 705, Laws of Maryland 1927
• Chapter 599, Laws of Maryland 1933
• Chapter 672, Laws of Maryland 1970
• Senate Bill 356

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/1988/Volume73_1988.pdf

Original opinion text

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

Local Government—Municipalities—Planning and Zoning-Appointment Process For Planning Commission and Board of Zoning Appeals.

December 9, 1988

Guy R. Ayres, III, Esquire
City Attorney for Ocean City

On behalf of the Town of Ocean City, you have requested our opinion concerning the appointment process for the Ocean City Planning Commission and Board of Zoning Appeals. In your letter, you state that at the present time the Mayor and Council make appointments to the Commission and the Board. In doing so, the Mayor and each member of the Council casts one vote.
For the reasons stated below, we conclude that this practice is in accord with State law.

                                 I
                     Statutory Background

Municipal corporations may enact "reasonable zoning regulations subject to the referendum of the voters." Article 23A, §2(b)(30) of the Maryland Code. Nevertheless, it is Article 66B that comprehensively defines the power of the municipal corporations and counties, other than charter counties, to enact planning and zoning ordinances. As a municipal corporation, Ocean City is subject to the provisions of that general law even though it enjoys home rule. Article XI-E, §6 of the Maryland Constitution.
Article 66B, §3.01 authorizes the counties and municipal corporations to establish planning commissions. Article 66B, §3.02 provides for the appointment of members in the following manner:

     The members shall be appointed by the local legislative body or by such person or persons as the local legislative body creating the commission in the ordinance may designate as the appointing power. Where there is a single local elected executive, the members shall be appointed by the local executive and confirmed by the local legislative body. All members may serve with the compensation the local legislative body deems appropriate .... Vacancies occurring otherwise than through the expiration of term shall be filled for the unexpired term by the local legislative body or by whatever person or persons as the local legislative body creating the commission may designate in the ordinance as the appointing power.

The terms "local executive" and "local legislative body" are defined by Article 66B, §1.00 as follows:

   "Local executive" means the chief executive of the political subdivision whether the official designation of his office be elected county executive or executive head, mayor, or similar term.
   "Local legislative body" means the elected body of a political subdivision whether known as county commissioner, or county council, city, town, or village council, or similar terms.

An Ocean City ordinance provides for the appointment of the "Planning and Zoning Commission" by the "Mayor and Council." Ocean City Code §14-2. The question has arisen whether Article 66B, §3.02 requires that the appointment be made by the Mayor subject to the approval of the Council. The answer depends on whether the Mayor is a "local elected executive" within the meaning of §3.02.

                               II
          Power to Appoint, Legislative History

The term "local executive" clearly refers to a single official. Moreover, this official must be "the chief executive." Although Article 66B, §1.00 includes a "mayor" within the term "local executive," it does not necessarily include all mayors. A mayor who merely presides over a council, acts as a member of the council, and performs ceremonial functions would not be a "chief executive" in the sense of an official who effectively exercises the executive authority of local government. This view is supported by the legislative history of §§1.00 and 3.02, which also suggests that the term "local executive" is intended to refer only to elected officials and that the reference in §3.02 to "a single local elected executive" has become redundant as the result of statutory revision.
In 1927 the General Assembly enacted general legislation conferring planning and zoning powers on Baltimore City and the larger incorporated towns. Chapter 705, Laws of Maryland 1927. This enactment, which was codified as Article 66B, was supplemented in 1933 by a comprehensive planning and zoning law for some but not all of the counties and municipalities. Chapter 599, Laws of Maryland 1933. Following a review of Article 66B by a study commission in 1969, the General Assembly extensively revised this article. See Maryland Planning and Zoning Law Study Commission, Final Report Legislative Recommendations (1969) ("1969 Study Report"); Legislative Council of Maryland, Report to the General Assembly of Maryland of 1970 at 995-1013; Chapter 672, Laws of Maryland 1970.
The 1933 enactment provided that a planning commission was to consist of one member of the council and four persons appointed "by the mayor, and confirmed by the council, if the mayor be an elective officer, otherwise by such officer as council may designate" by ordinance. Vacancies were to be filled by the "mayor and confirmed by the council." Chapter 599, Laws of Maryland 1933, §3, codified at former Article 66B, §12 (1935 Supp.). The term "Mayor" was defined as the "chief executive of the political subdivision, whether the official designation of his office be Mayor, City Manager or otherwise." Former Article 66B, §10 (1935 Supp.). By explicitly including "City Manager" within the definition of "Mayor," the General Assembly intended the term to refer not only to an elected chief executive but also to an unelected chief executive. However, for purposes of appointments to the planning commission, the 1933 law required that the mayor make the regular appointments only if the mayor was an elected official. In the absence of such an official, the council was to decide how the appointments would be made.
The 1969 study commission did not recommend any substantial change in the appointment process for the planning commission. It merely suggested that either five or seven members be allowed; that the terms "single local elected executive" and "local legislative body" be substituted for the references to an elective mayor and council; and that in the absence of such an executive, the council be permitted to designate a person or persons, not an "officer," to make the appointments. The Commission recommended that vacancies be filled "by the local executive and confirmed by the local legislative body." 1969 Study Report at 23. Although the term "single local elected executive" was not defined, the following definition of "local executive" was suggested:

    "Local Executive" means the chief executive of the political subdivision whether the official designation of his office be elected county executive or Executive Head, Mayor, City Manager, or similar term.

The Commission noted that the new term did not apply to the president of the board of county commissioners, thus suggesting that the term referred only to the official who effectively exercised the executive power of local government. 1969 Study Report at 17-18. The retention of the reference to "City Manager" in the definition clearly meant that "local executive," like "Mayor," included unelected as well as elected chief executives.
In considering the bill that embodied the study commission's draft, Senate Bill 356, the General Assembly made only a few substantive changes in the appointment provision for the planning commission. The appointment of a member of the council was made optional, and vacancies were to be filled not by the local executive with confirmation by the local legislative body, but by the local legislative body or such persons as the local legislative body might designate by ordinance. Chapter 672, Laws of Maryland 1970 at 1889. In the same enactment, the General Assembly also amended the term "Local executive" to delete the reference to "City Manager." This reference may have been regarded as redundant in view of the remaining reference to "executive head." However, the more plausible explanation is that the Legislature wished to restrict this term to an elected official who effectively exercises the executive authority of local government. Although §3.02 was not amended to delete what would then be a redundant reference to "a single local elected executive" appointing the planning commission, this may well have been an oversight.

                              III
                  Application to Ocean City

With respect to appointments to the Ocean City Planning Commission, the question then becomes whether the Mayor is the "local executive" in the sense of an elected official who effectively exercises the executive authority of the municipality. Although the Mayor is elected by the voters, the City Charter expressly provides that, "The Council ... shall hold all the legislative and except for the mayoral veto, all the executive powers of the town." Ocean City Charter §§C-401, C-413A and C-604.
Because the Mayor of Ocean City is not the "chief executive" within the meaning of Article 66B, §§1.00 and 3.02, there is no requirement in §3.02 that the Mayor appoint the members of the Planning Commission with the approval of the Council. In the absence of a "local executive," §3.02 merely requires that the members of the Planning Commission be appointed by the "local legislative body or by such person or persons as the local legislative body creating the commission in the ordinance may designate as the appointing power." As the Ocean City Charter refers to the Council as consisting of seven members and exercising all legislative power and makes no reference to the Mayor, the Mayor and Council would not constitute the "local legislative body" under §§1.00 and 3.02. However, §3.02 also permits the local legislative body to designate the appointing authority and this could certainly be the Mayor and Council, as is provided for in §14-2 of the Ocean City Code.
With respect to appointments to the Board of Appeals, §4.07 provides that "[t]hey shall be appointed by the local executive, [and] confirmed by the local legislative body." The 1933 law provided that this board is to be appointed "by the mayor [and] confirmed by the council." Chapter 599, Laws of Maryland 1933, §13, codified at former Article 66B, §22 (1935 Supp.). However, as already indicated, the term "local executive" now refers to an elected official who effectively exercises the executive authority of local government, and the Mayor of Ocean City does not hold a position of this type. Thus, §105-119 of the Ocean City Code, which provides for appointment by the Mayor and confirmation by the Council, is not in accord with §4.07. Although the 1969 study commission suggested that Article 66B needed to be revised to recognize that not all local governments have a traditional mayor and council form of government, the mere revision of the terminology in §4.07 did not accomplish this objective.
In circumstances such as these, where there is no "local executive" as contemplated by §4.07, evidently the local legislative body may exercise the broad authority under the introductory sentence of §4.07 "to provide for the appointment of a board of appeals." Thus, as applied to Ocean City, §4.07 sanctions the practice of the Mayor and Council making appointments to the Board of Appeals. However, it would be advisable to codify this practice in the city's ordinances.

                              IV
                          Conclusion

In summary, it is our opinion that State law permits the current practice of the Mayor and Council of Ocean City in making appointments to the Planning Commission and to the Board of Appeals.

        J. Joseph Curran, Jr., Attorney General
        Richard E. Israel, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice