How much discretion did Maryland's Chesapeake Bay Critical Area Commission have to interpret its own local program criteria?

Plain-English summary

In 1988, the chairman of Maryland's Chesapeake Bay Critical Area Commission asked the Attorney General how much latitude the Commission had to interpret the criteria it had adopted for local governments developing Critical Area protection programs, since local jurisdictions had to design programs that "met" those criteria before the Commission could approve them. The opinion sorted the criteria into three categories and gave a different answer for each. Criteria phrased in mandatory language, like "shall" or "may not," had to be applied exactly as written, with no room for the Commission to accept a program element that fell short. Criteria phrased in directory language, like "should" or "encourage," only required that local governments consider the recommended element, not adopt it, so a program could not be rejected solely for leaving one out. And criteria that were themselves mandatory but written broadly enough to admit more than one reasonable reading, like a definition tied to how close an area was to "public sewer or public water," left the Commission with real, though not limitless, discretion to decide whether a given local proposal served the criterion's underlying purpose.

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

Could Maryland's Critical Area Commission approve a local program that didn't meet a "shall" or "may not" requirement?
No, according to this 1988 opinion. It concluded that criteria written in clearly mandatory terms, such as the one dwelling unit per 20 acres density limit in COMAR 14.15.02.05C(4), had to be applied exactly as written, with no discretion for the Commission to approve a variance.

Could the Commission reject a local program just because it skipped a criterion that said local governments were "encouraged" to do something?
No. The opinion concluded that criteria written in directory language, like the encouragement of tax incentive programs in COMAR 14.15.10.01K, required only that the topic be considered during program development, not that it actually be adopted, so a program could not be disapproved solely for omitting that kind of element.

How much freedom did the Commission have to decide whether an area counted as having "public sewer or public water"?
The opinion concluded the Commission had broad discretion to weigh factors like the capacity of nearby sewer and water lines and the likelihood they would actually be extended to serve an area, but that discretion was not unlimited: an area could not qualify if service were purely speculative or based only on distant planning, since the criterion would otherwise lose all meaningful content.

Background and statutory framework

The Chesapeake Bay Critical Area Law directed each local jurisdiction in the Critical Area to develop its own protection program, subject to Commission review and approval, in order to achieve consistency and uniformity across jurisdictions while still leaving primary responsibility with local governments under Natural Resources Article §8-1808(a)(1). The General Assembly directed the Commission to adopt "criteria for program development and approval" under §8-1808(d) through an elaborate rulemaking process, and it reserved to itself the authority to affirm by joint resolution that the resulting criteria, codified at COMAR 14.15.01 through 14.15.11, were "reasonable and acceptable to accomplish the goals" of the law, a review process the opinion found showed the General Assembly did not intend the Commission to be free to make wholesale changes to the criteria once adopted, citing the office's own prior opinion at 72 Opinions of the Attorney General 14.

Under §8-1809(i), the Commission had to approve local programs that "meet" the adopted criteria, and the opinion applied general rules of statutory construction, citing Kaczorowski v. City of Balto. and Maryland Port Admin. v. Brawner Contracting Co. (which held that interpretive principles for statutes apply equally to administrative rules), to sort the criteria into the three categories described above. For mandatory criteria, the opinion applied Article 1, §26 (giving "may not" mandatory negative effect) and the Court of Appeals' test in Resetar v. State Bd. of Education for when "shall" language is mandatory rather than directory, concluding the housing-density limit in COMAR 14.15.02.05C(4) left the Commission no room to vary.

For directory criteria, the opinion followed its own earlier unpublished analysis (Opinion No. 86-053) that the Commission's drafters had deliberately reserved "shall" for mandatory provisions and used "should" and similar words where only consideration was intended, while still finding, citing In re James S., that a directory provision could not simply be ignored altogether. For the third category, exemplified by the sewer-and-water-service definition in COMAR 14.15.02.04A(4), the opinion found the Commission could apply its expertise on a case-by-case basis (citing Maryland Commission on Human Relations v. Bethlehem Steel for the principle that an agency is well positioned to discern its own regulatory intent), so long as it did not treat service to an area as satisfied by purely speculative or long-range planning, since the Commission's own comparable Intensely Developed Area criterion, COMAR 14.15.02.03A(3), showed the Commission knew how to require lines already "currently serving" an area when it meant to.

Citations and references

Statutes:

• Natural Resources Article §8-1809
• Natural Resources Article §8-1809(i)
• Natural Resources Article §8-1801(a)(9)
• Natural Resources Article §8-1801(b)
• Natural Resources Article §8-1808(a)(1)
• Natural Resources Article §8-1808(b)
• Natural Resources Article §8-1808(c)
• Natural Resources Article §8-1808(d)
• Natural Resources Article §8-1806
• Chapter 794 of the Laws of Maryland 1984
• Article 1, §26
• COMAR 14.15.02.05C(4)
• COMAR 14.15.10.01K
• COMAR 14.15.02.04A(4)
• COMAR 14.15.02.03A(3)
• COMAR 14.15.01 through 14.15.11

Cases:

• Department of Natural Resources v. Linchester, 274 Md. 211, 218, 334 A.2d 514 (1975)
• Comptroller of the Treasury v. Rockhill, Inc., 205 Md. 226, 234, 107 A.2d 93 (1954)
• Hopkins v. Maryland Inmate Grievance Comm'n, 40 Md. App. 329, 335, 391 A.2d 1213 (1978)
• Maryland Port Admin. v. Brawner Contracting Co., 303 Md. 44, 60, 492 A.2d 281 (1985)
• Kaczorowski v. City of Balto., 309 Md. 505, 513, 525 A.2d 628 (1987)
• Resetar v. State Bd. of Education, 284 Md. 537, 547-48, 399 A.2d 225 (1979)
• In re James S., 286 Md. 702, 707, 410 A.2d 586 (1980)
• Maryland Commission on Human Relations v. Bethlehem Steel, 295 Md. 586, 593, 457 A.2d 1156 (1983)

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.

CHESAPEAKE BAY CRITICAL AREA COMMISSION

Program Development Criteria—Scope of Commission's Discretion to Interpret Criteria.

January 5, 1988

The Honorable Solomon Liss
Chesapeake Bay Critical Area Commission

You have requested our opinion concerning the interpretation of the criteria for local program development adopted by the Chesapeake Bay Critical Area Commission. Specifically, you have asked us to define the degree of discretion afforded the Commission to interpret the criteria, as it determines under §8-1809 of the Natural Resources Article ("NR" Article) whether local programs meet the standards of the Critical Area Law and the criteria.

In your request, you specifically refer to three types of criteria about which you seek guidance. As you describe them, some of the criteria are "clear mandates" — for example, the development restriction in COMAR 14.15.02.05C(4). Others are "merely directory" — for example, the encouragement of incentive programs in COMAR 14.15.10.01K. Finally, some criteria, though in one sense mandatory, are drafted seemingly so as to leave room for some further interpretation or elaboration — for example, the definitional standard relating to sewer or water service in COMAR 14.15.02.04A(4).

For the reasons stated below, we conclude as follows:

1. Mandatory criteria, typically those using terms like "shall" or "may not," must be applied by the Commission as written and must be adhered to without variance by those to whom the criteria apply. COMAR 14.15.02.05C(4) is mandatory and must be applied according to its terms.

2. Criteria written in directory terms — for example, using words like "should," or, as in COMAR 14.15.10.01K, "encourage" — reflect an intent to foster consideration of a matter. Accordingly, they should be construed to require that those preparing, submitting, or reviewing local programs at least considered the particular matter. However, the Commission should not disapprove a program solely because it does not include a program element of this kind.

3. In applying criteria that admit of more than one reasonable construction — for example, COMAR 14.15.02.04A(4) — the Commission should consider how the particular program element in question relates to the Commission's underlying policy objective. While the Commission may not approve a local program element that is outside the scope of the pertinent criterion, taking into account the principles of interpretation described in this opinion, the Commission has broad discretion to determine that a proposed element is consistent with the intent underlying the criterion.

I
The Commission's Role in Adopting Criteria

In enacting the Chesapeake Bay Critical Area Law, the General Assembly made the following finding:

There is a critical and substantial State interest for the benefit of current and future generations in fostering more sensitive development activity in a consistent and uniform manner along shoreline areas of the Chesapeake Bay and its tributaries so as to minimize damage to water quality and natural habitats.

NR §8-1801(a)(9) (emphasis added). Accordingly, the stated purposes of the legislation were to:

1. Establish a Resource Protection Program for the Chesapeake Bay and its tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats, and

2. Implement the Resource Protection Program on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight.

NR §8-1801(b) (emphasis added).

The General Assembly also stated its intent that "each local jurisdiction shall have primary responsibility for developing and implementing a program, subject to review and approval by the Commission." NR §8-1808(a)(1). This "cooperative endeavor between the State and local governments ... is at the heart of the legislation." 72 Opinions of the Attorney General 14, 18 (1987). Under the Act's scheme, each local jurisdiction in the Critical Area is given the opportunity to legislate a program to meet the goals of the Act.

The General Assembly directed in NR §8-1808(b) that local programs are to serve certain goals:

A program shall consist of those elements which are necessary or appropriate to:

1. Minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands;

2. Conserve fish, wildlife, and plant habitat; and

3. Establish land use policies for development in the Chesapeake Bay Critical Area which accommodate growth and also address the fact that, even if pollution is controlled, the number, movement, and activities of persons in that area can create adverse environmental impacts.

In NR §8-1808(c), the General Assembly set forth a list of elements that each program must have "at a minimum" to be "sufficient to meet the goals stated in subsection (b)."

The General Assembly also recognized that other program elements might be necessary to meet the goals of NR §8-1808(b) and that, to achieve consistency and uniformity, additional standards for the content of various program elements would have to be determined. Accordingly, the General Assembly established the Chesapeake Bay Critical Area Commission and empowered it to fashion "criteria for program development and approval." NR §8-1808(d).

Under NR §8-1808(d), the Commission was to adopt criteria that are "necessary or appropriate to achieve the standards stated in subsection (b) of this section." NR §8-1808(d) required that the criteria be "promulgate[d] by regulation" and that the Commission hold extensive rounds of hearings both before developing and before adopting the criteria. NR §8-1806 also generally empowered the Commission "to adopt regulations and criteria" in accordance with the Administrative Procedure Act. In uncodified Section 3 of Chapter 794 of the Laws of Maryland 1984, the General Assembly reserved to itself authority "at the 1986 Session [to affirm] by joint resolution that the criteria are reasonable and acceptable to accomplish the goals of this subtitle."

The General Assembly, instead of legislating the criteria itself in the Critical Areas law, chose to follow the well-established practice of giving an administrative body the task of acquiring information and working out the details of statutory administration. See Department of Natural Resources v. Linchester, 274 Md. 211, 218, 334 A.2d 514 (1975). The resulting criteria, codified at COMAR 14.15.01 through 14.15.11, are legislative rules.

As a general proposition, legislative rules adopted by an administrative agency have the force of law, equal to that of a statute. Comptroller of the Treasury v. Rockhill, Inc., 205 Md. 226, 234, 107 A.2d 93 (1954). They are binding not only on the affected public but also on the adopting agency. Hopkins v. Maryland Inmate Grievance Comm'n, 40 Md. App. 329, 335, 391 A.2d 1213 (1978).

The General Assembly's intent that the criteria be binding could hardly have been more clearly expressed. First, the General Assembly required unusually elaborate procedures for the criteria's adoption. See NR §8-1808(d). Second, the General Assembly reserved to itself authority to approve the criteria. As we noted last year:

In light of this review requirement, we believe that the General Assembly did not intend to authorize the Commission to amend the criteria at will. One essential purpose of the legislative veto mechanism was to place the General Assembly's imprimatur on the criteria if — as, in fact, happened — the General Assembly concluded "that the criteria are reasonable and acceptable to accomplish the goals of" the legislation. This mechanism for seeking legislative consensus about the criteria would be largely defeated if the Commission were empowered to make wholesale changes in the newly approved criteria.

72 Opinions of the Attorney General at 17.

As the Commission developed the criteria, necessarily it made difficult judgments on specific matters left open by the statute. The job of the Commission was to listen to the public; develop relevant facts; finely balance rights, costs, harms, and benefits; and derive "necessary or appropriate" criteria — all within the statutory framework handed down by the General Assembly. The Commission often had to choose one among a range of reasonable alternatives without absolute standards to guide it. For example, the judgment that housing density in the Resource Conservation Area should average one dwelling unit per 20 acres (COMAR 14.15.02.05C(4)), rather than one per 50 or one per 15, rests upon an empirical basis. But, in the final analysis, the decision to say "this far and no more" was simply a reasoned judgment call.

II
The Commission's Review of Local Programs

To further its goal of achieving consistency and uniformity among the local programs, the General Assembly gave the Commission a supervisory role over local programs. Under NR §8-1809, local programs may not be enacted by local jurisdictions unless they have been approved by the Commission. The General Assembly set the following prerequisites for approval in NR §8-1809(i):

The Commission shall approve programs and amendments that meet:

1. The standards set forth in §8-1808(b)(1) through (3) of this subtitle; and

2. The criteria adopted by the Commission under §8-1808 of this subtitle.

The operative word in the legislative description of the Commission's approval process is "meet." We infer from the context of the Critical Area law that the General Assembly intended "meet" to mean conformity with the criteria, for this usage furthers the overall goal of consistency and uniformity. Webster's New International Dictionary 1529 (2d ed. 1953) defines "meet" in this sense to mean "to come up to; to conform to; ... to equal; match ...."

Criteria expressed in clear and mandatory terms leave no doubt as to what a local program must do to "meet" them; other criteria leave room for alternatives. As to the latter, the issue is the degree of variance permitted. In some instances, the Commission expressly solicited a range of proposals. In other instances, the Commission chose wording that is more ambiguous but that at least potentially might be met by more than one proposal.

In interpreting the scope of the criteria, the Commission may rely upon the knowledge that its members and staff have about the background of the criteria. However, the Commission's inquiry must focus on the scope of the criteria as adopted, even if the Commission, with hindsight, would now prefer their scope to be different. In reaching its decisions under NR §8-1809(i), the Commission does not have authority to interpret the criteria to be either broader or narrower than they presently are. It must give effect to the criteria as adopted and as approved by the General Assembly. "The Commission is without authority to effect significant changes in the substance of the criteria." 72 Opinions of the Attorney General at 18.

The Commission should interpret the criteria in accordance with accepted principles of statutory construction. "Our holdings relative to the interpretation of statutes are equally applicable to the interpretation of rules." Maryland Port Admin. v. Brawner Contracting Co., 303 Md. 44, 60, 492 A.2d 281 (1985).

As is true of statutes, rules have "some object, goal, or purpose"; the task of construction is to discern that purpose and carry it out sensibly. Kaczorowski v. City of Balto., 309 Md. 505, 513, 525 A.2d 628 (1987). "Of course, in our efforts to discover purpose, aim, or policy we look at the words of the statute ..., because what the legislature has written in an effort to achieve a goal is a natural ingredient of analysis to determine that goal." Id. Indeed, "sometimes the language in question will be so clearly consistent with apparent purpose (and not productive of any absurd result) that further research will be unnecessary." 309 Md. at 515. At other times, the meaning of the text must be informed by context. Id.

Some criteria direct local jurisdictions to include certain elements in their programs or specify the content of those individual elements. As discussed in more detail in Part III below, the mandatory language in these criteria denotes an unambiguous intent. When a criterion is so worded, there is no room for a local jurisdiction to fashion, or for the Commission to approve, a program element different than that which the criterion mandates.

Many of the criteria, while mandating that a type of program element be included, leave room for a variety of proposals by local jurisdictions about the specific content of that program element. In those instances, the Commission determined that the goal of consistency and uniformity could be reached by requiring each jurisdiction to address the program element but permitting the details to vary from program to program. The General Assembly, by approving the Commission's criteria as "reasonable and acceptable to accomplish the goals of this subtitle," accepted the Commission's judgment.1

The Commission faces two difficult interpretive questions regarding the criteria: first, determining whether a particular criterion admits of only one or of differing program elements; and second, if differing program elements are permissible, determining which of the possible alternatives nevertheless fall so short of the criterion's objective as to fail to "meet" the criterion. As to both questions, although "an agency is best able to discern its intent in promulgating a regulation," Maryland Commission on Human Relations v. Bethlehem Steel, 295 Md. 586, 593, 457 A.2d 1156 (1983), the Commission may not in effect amend the criteria through its application of them.

With these principles as background, we turn to the particular criteria cited in your letter.

III
Required Program Elements

COMAR 14.15.02.05C(4) begins as follows: "Land within the Resource Conservation Area may be developed for residential uses at a density not to exceed one dwelling unit per 20 acres." In your letter, you suggest that this "one-in-twenty" density requirement for the Resource Conservation Area is expressed in terms that do not admit of alternative program proposals.

We agree. "In [the Maryland Code] and any rule, regulation, or directive adopted under it, the phrase 'may not' or phrases of like import have a mandatory negative effect and establish a prohibition." Article 1, §26. The phrasing of COMAR 14.15.02.05C(4) is of "like import" to the phrase "may not."

Addressing the most common indicator of mandatory intent, the word "shall," the Court of Appeals wrote:

The question of whether a statutory provision using the word "shall" is mandatory or directory "turns upon the intention of the Legislature as gathered from the nature of the subject matter and the purposes to be accomplished ... [T]he word 'shall' is not treated as signifying a mandatory intent if the context in which it is used indicates otherwise ... [M]ere words do not control. The whole surroundings, the purposes of the enactment, the ends to be accomplished, the consequences that may result ... must all be considered in determining whether particular words shall have a mandatory or a directory effect ascribed to them."

Resetar v. State Bd. of Education, 284 Md. 537, 547-48, 399 A.2d 225 (1979) (citations omitted).

From their context, from what we can discern of their "legislative history," and from the benefit of our previous exploration of a quite similar question (Opinion No. 86-053, October 6, 1986 (unpublished)), we conclude that when the Commission's criteria use words of mandate like "shall" or "may not," the criteria impose flat requirements. COMAR 14.15.02.05C(4) and comparably worded criteria cannot be met by anything other than unvarying compliance with the terms of the requirement.

IV
Discretionary Program Elements

Under COMAR 14.15.10.01K, local jurisdictions "are encouraged to establish a program that provides tax benefits and consider other financial incentives" aimed at promoting voluntary development restriction. While each individual criterion must be separately assessed, we generally believe that the Commission's use of words like "should," "encourage," or other equivalent constructions connotes a matter that is directory rather than mandatory.

As we noted in Opinion No. 86-053, at 4:

The drafters relied upon materials that treat "should" as directory and that are designed to assist drafters of legislative documents in Maryland.... Moreover, the Commission, in the course of considering the criteria and before it adopted them was similarly advised by its counsel of the effects of "should."

The intention to make the guidelines in which "should" is used directory only is made manifest by the regulation's contrasting use of "shall" and "should." Had the drafters intended a mandatory effect in the guidelines, presumably they would have used the same word "shall" that they in fact used to achieve a mandatory effect elsewhere in the same regulations.

However, a directory provision may not simply be ignored:

"[T]he differences between mandatory and directory, or between prohibitory and permissive, represent a continuum involving matter of degree instead of separate, mutually exclusive characteristics. It has been said, for example, that because a statute has been classified for some purposes as directory does not mean that for all purposes 'it can be ignored at will.'"

In re James S., 286 Md. 702, 707, 410 A.2d 586 (1980), quoting 1A Sutherland, Statutory Construction §25.04 (4th ed. 1972). Thus, a local government's program development process should entail some consideration of the matter contained in a directory provision, even if the program does not carry the provision into effect.

In the criterion you have cited as an example, COMAR 14.15.10.01K, the Commission directs local governments to consider inclusion of the recommended elements (tax and financial incentives, an easement purchase program, and so forth) in local programs. However, given the directory nature of this criterion, the absence of such elements should not, in and of itself, cause the Commission to reject a program.

V
Other Interpretive Issues

Your last specific example, COMAR 14.15.02.04A(4), reflects a mandatory criterion that nevertheless requires interpretation. The subsection establishes the definition of Limited Development Areas, one feature of which is "[a]reas having public sewer or public water, or both."

The defining characteristics of Limited Development Areas are mandatory: "These areas shall have at least one of the following features...." Therefore, the Commission does not have the discretion to approve a local program that classifies an area as a Limited Development Area if that classification is not consistent with the defining characteristics.

However, the criterion in question, COMAR 14.15.02.04A(4), is itself not formulated with specificity. Inevitably, the Commission must apply its informed discretion, on a case-by-case basis, in deciding whether particular areas are ones "having public sewer or public water, or both."

Though the Commission's discretion in this regard is broad, it is not limitless. The term "having public sewer or public water" would lose all content if the area in question were not in reasonable proximity to existing sewer or water lines — ones that are "in the ground."2

The limitation imposed by this criterion on the exercise of the Commission's discretion is that sewer and water service to an area cannot be solely a matter of planning or otherwise wholly speculative.

If the area is reasonably close to existing lines but is not currently hooked into the lines, the Commission is free to assess all pertinent circumstances to determine the reasonable likelihood of future service. That is, the Commission may assess such factors as the capacity of the existing lines and related facilities (e.g., a sewage treatment plant), the timing of projected service under a local sewer and water plan, and the likelihood of the plan's accomplishment. In making these judgments, the Commission has broad discretion to apply its expertise to the interpretation of its regulation. If the Commission concludes that a given proposal achieves the object that the Commission sought to accomplish through this criterion, then it should conclude that the proposal "meets" the criterion.

VI
Conclusion

In summary, it is our opinion that:

1. Mandatory criteria, typically those using terms like "shall" or "may not," must be applied by the Commission as written and must be adhered to without variance by those to whom the criteria apply. COMAR 14.15.02.05C(4) is mandatory and must be applied according to its terms.

2. Criteria written in directory terms — for example, using words like "should," or, as in COMAR 14.15.10.01K, "encourage" — reflect an intent to foster consideration of a matter. Accordingly, they should be construed to require that those preparing, submitting, or reviewing local programs at least considered the particular matter. However, the Commission should not disapprove a program solely because it does not include a program element of this kind.

3. In applying criteria that admit of more than one reasonable construction — for example, COMAR 14.15.02.04A(4) — the Commission should consider how the particular program element in question relates to the Commission's underlying policy objective. While the Commission may not approve a local program element that is outside the scope of the pertinent criterion, taking into account the principles of interpretation described in this opinion, the Commission has broad discretion to determine that a proposed element is consistent with the intent underlying the criterion.

J. Joseph Curran, Jr., Attorney General
Thomas A. Deming, Assistant Attorney General
Lee R. Epstein, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1 By stating its goals of consistency and uniformity, the General Assembly did not mean that every property owner in all local jurisdictions must be treated identically. Zoning requirements vary from jurisdiction to jurisdiction, so that property owners similarly situated in different jurisdictions may be treated differently. By basing the State's Critical Area Law on local legislative powers, and by approving criteria that contemplate differing program elements, the General Assembly intended that citizens in the several jurisdictions might, by local option, continue to be regulated in differing fashion under many of the criteria.

2 This conclusion was previously set out in a memorandum to you from Assistant Attorney General Lee R. Epstein (May 22, 1987). The Commission evidently did not contemplate that sewer or water systems necessarily be hooked up. Another criterion, describing Intensely Developed Areas, refers to areas where "[p]ublic sewer and water ... systems are currently serving the areas ...." COMAR 14.15.02.03A(3).