Can a Maryland town annex the state-owned land under a navigable creek?

Plain-English summary

Queenstown's boundary ran down the middle of Queenstown Creek, which meant the town could regulate development and pier construction only on its side of the creek. The town wanted to regulate the whole width of the creek and the far shore, which required annexing that area. The catch: Queenstown Creek is navigable water, and in Maryland the land beneath navigable waters belongs to the State, held in trust for all its citizens, and state land is exempt from local regulatory control. So the question became whether a municipality may annex state-owned land at all.

The Attorney General said yes. The annexation statute, Article 23A, §19, imposes express limits (contiguity, no unincorporated "pockets," no overlap with another municipality) but contains no bar on annexing government-owned land. The Court of Special Appeals' Banker's Life decision, which held that tax-exempt government owners don't count toward the consents needed for annexation, rested on the premise that annexation costs a tax-exempt owner nothing, and it treated the annexation of the government property there as unquestioned. The same logic ran through this opinion: annexing state land does not tax it, does not subject it to local land-use regulation, and does not touch the State's ownership interest, so the general rule that statutes do not bind the State unless they say so was never triggered, because annexation binds the State to nothing. The leading municipal law treatise agreed, and a contrary reading could force towns to leave prohibited pockets of unincorporated land. Queenstown could therefore annex the creek bottom.

Currency note

This opinion was issued in 1990. 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. The municipal annexation provisions of former Article 23A have since been recodified into the Local Government Article.

Common questions

Who owns the land under a navigable creek in Maryland?
The State, in trust for all its citizens, with limited exceptions. The opinion cited the long-settled rule from Smith v. Maryland and noted that navigable waters are those where the tide ebbs and flows or which are navigable in fact, even by small craft.

If the State owns the creek bottom, what did the town gain by annexing it?
Territorial jurisdiction. Annexation brought the whole creek and the far shore within the town's boundaries, which mattered for the town's zoning and port warden powers over private development and improvements. It gave the town no power over the State's own property.

Did the State have to consent to the annexation?
The opinion did not treat state consent as the obstacle; it explained that under Banker's Life, only owners of taxable property count toward the required annexation consents, because only they bear the tax burdens of municipal government. The State, as a tax-exempt owner, was outside that consent calculus, and annexation imposed nothing on it.

Does annexing state land let a town regulate or tax it?
No. State-owned land remains exempt from local property taxes and local land-use regulation after annexation. The opinion emphasized that annexation "would not 'bind' the State in any way," which is why the general rule against binding the State without express language did not block it.

What about private piers and wharves on the creek?
A footnote pointed out that riparian improvements permitted by the State become part of the dry land they attach to once completed, and are then subject to local zoning under People's Counsel v. Maryland Marine Manufacturing Co.

Background and statutory framework

Municipal corporations hold general zoning power within their boundaries under Article 66B, §4.01, and may establish port wardens to regulate wharves and piers under Article 23A, §2(b)(23A). Annexation authority comes from Article 23A, §19: the area must be contiguous and must not create pockets of unincorporated land (§19(a)), must not lie within another municipality (§19(m)), and the process requires consents from 25 percent of registered-voter residents and the owners of 25 percent of the assessed valuation of real property in the area (§19(b)(1)), or may be initiated by petition (§19(c)).

The state-ownership rule came from Smith v. Maryland and Harbor Island Marina v. Calvert Co., which put land under navigable water outside the regulatory control of political subdivisions. City of Salisbury v. Banker's Life Co. supplied the analytical core: annexation of tax-exempt government property does not harm the owner, so government owners have no voice in the consent count, and, implicitly, such property is annexable. Board of Child Care of Methodist Church v. Harker confirmed the State's exemption from local land-use regulation, and County Commissioners v. Maryland Hospital for Insane showed that local powers (there, eminent domain) do not run against state land. Against the canon of City of Baltimore v. State that enactments do not bind the State absent clear intent, the opinion answered that annexation is a boundary mechanism, not a substantive regulation, citing McQuillan's treatise for the majority rule that cities may extend boundaries over state territory without gaining control over it.

Citations and references

Statutes:

• Article 23A, §19 of the Maryland Code (municipal annexation), including §19(a) (contiguity and no pockets), §19(m) (no overlap), §19(b)(1) and §19(c) (consents and petitions)
• Article 66B, §4.01 (municipal zoning); Article 23A, §2(b)(23A) (port wardens); §7-106 of the Tax-Property Article (assessment of tax-exempt property)

Cases:

• Smith v. Maryland, 59 U.S. (18 How.) 71 (1855) (U.S. Supreme Court, state ownership of navigable-water beds)
• Green v. Eldridge, 230 Md. 441 (1963); Harbor Island Marina v. Calvert Co., 286 Md. 303 (1979); People's Counsel v. Maryland Marine Manufacturing Co., 316 Md. 491 (1989); Board of Child Care of Methodist Church v. Harker, 316 Md. 683 (1989); City of Baltimore v. State, 281 Md. 217 (1977); County Commissioners v. Maryland Hospital for Insane, 62 Md. 127 (1884) (Maryland Court of Appeals)
• City of Salisbury v. Banker's Life Co., 21 Md. App. 396, 319 A.2d 865 (1974) (Maryland Court of Special Appeals)

Related AG opinion: 73 Opinions of the Attorney General 238, 245 (1988)

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/1990/Volume75_1990.pdf (this opinion appears at printed pages 348-352 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

Local Government — Municipal Corporations — Annexation — Power to Annex State-Owned Land — Effect of Annexation

May 17, 1990

Mr. John W. S. Foster, III
President
Town Commissioners of Queenstown

 On behalf of the Town Commissioners of Queenstown, you have requested an opinion on whether the town may annex land underlying Queenstown Creek. For the reasons given below, it is our conclusion that the town may annex the land in question.1

I

Background

 Municipal corporations like Queenstown have general power to impose zoning controls on lands within their corporate boundaries. Article 66B, §4.01 of the Maryland Code. Under Article 23A, §2(b)(23A), municipal corporations are also authorized to establish boards of port wardens to regulate the construction of structures like wharves and piers within their corporate limits.

 The boundary of the town of Queenstown presently runs along the center of Queenstown Creek, and the town therefore currently has power under those provisions to regulate development on one side of the creek and the construction of improvements from the shore on that side to the center of the creek. However, the town wishes to regulate development throughout the width of the creek and on the fast land on the opposite side of the creek, as well. Because that area lies outside the town's corporate boundaries, accomplishment of the town's goal requires that the area be annexed.

 The waters of Queenstown Creek in the area that the town wishes to annex are navigable waters. That is, they are waters in which the tide ebbs and flows or which are in fact navigable, if only by small craft. See Green v. Eldridge, 230 Md. 441, 446-47, 187 A.2d 674 (1963).

 With limited exceptions, all navigable waters and the land beneath them are owned by the State in trust for all of its citizens. Smith v. Maryland, 59 U.S. (18 How.) 71, 15 L. Ed. 269, 271 (1855). Because land under navigable water is State-owned, it is not subject to the regulatory control of political subdivisions. Harbor Island Marina v. Calvert Co., 286 Md. 303, 314-15, 407 A.2d 738 (1979).2 Thus, your question at bottom is whether a municipal corporation may annex State-owned land.

II

Annexation of State-Owned Land

 Under Article 23A, §19, every municipal corporation has power to annex land, although there are certain express limits on the exercise of that power. The land to be annexed must be contiguous to the existing corporate area, and the annexation must not create a "pocket" of unincorporated land surrounded by property within the corporate limits of the municipality. §19(a). Moreover, the land to be annexed must not be within the corporate boundaries of any other municipal corporation. §19(m). There is no express prohibition, however, against the annexation of property owned by a governmental entity.

 Annexation may be initiated by a resolution of the municipal corporation's legislative body. Before adopting the resolution, the legislative body must obtain the consent of 25 percent of the residents of the area to be annexed who are registered voters and of the owners of "25 percent of the assessed valuation of the real property located in the area to be annexed." §19(b)(1).3

 In City of Salisbury v. Banker's Life Co., 21 Md. App. 396, 404-05, 319 A.2d 865 (1974), the Court of Special Appeals held that a municipality may not include the consent of a governmental owner of tax-exempt property in determining whether it has obtained the requisite number of consents to an annexation resolution. Although §7-106 of the Tax-Property Article requires that tax-exempt property be assessed on the same basis as taxable property, the court concluded that only the owners of taxable property are qualified to give consent to annexation. This is so because the General Assembly intended "that only those who were to bear the financial burdens of a city government by the payment of real property taxes were to be allowed a voice in the annexation of real property to the municipal corporation." 21 Md. App. at 404.

 The court did not indicate, however, that the property at issue, owned by a county board of education, was not subject to annexation at all. To the contrary, it seems to have been unquestioned that the property could be annexed. We believe that publicly owned land — including State-owned land — may indeed be annexed.

The foundation of the holding in Banker's Life was that the annexation of tax-exempt property does not negate the tax exemption and thus does not adversely affect the owner. In consequence, annexation is of no real concern to the tax-exempt entity.

 State-owned land is exempt from land-use regulations enacted by political subdivisions, as well as property taxes. Board of Child Care of Methodist Church v. Harker, 316 Md. 683, 690-91, 561 A.2d 219 (1989). See also 73 Opinions of the Attorney General 238, 245 (1988) (municipal zoning ordinance is inapplicable to county property used for governmental purposes). Nothing in Article 23A, §19 indicates any intention that an exercise of the power of annexation may override the State's general exemption from local regulation.

 Hence, just as the annexation of State-owned property does not burden the State with property taxes, so annexation does not burden the State with regulation. Nor does annexation have any effect on the nature or extent of the State's ownership interest in its land. County Commissioners v. Maryland Hospital for Insane, 62 Md. 127, 129 (1884) (political subdivision with power of eminent domain nonetheless may not condemn State-owned land).

 In sum, annexation simply has no practical effect on State-owned land so long as the land remains in State ownership. Under these circumstances, we think the rationale of Banker's Life Co. indicates that annexation of State-owned land is permitted in the absence of an express prohibition.

To be sure, the general rule is that the State is not bound by its enactments "unless the enactment specifically names the state or manifests a clear and indisputable intention that the state is to be bound." City of Baltimore v. State, 281 Md. 217, 223, 378 A.2d 1326 (1977).

 However, annexation is not itself a substantive regulation, but merely a mechanism for extending the territorial jurisdiction of a municipality. As we have noted, the State would not, by virtue of an annexation of its land, be subject to any substantive obligation or restriction to which it had not consented. Put another way, annexation of its land would not "bind" the State in any way. Hence, we believe that construing §19 to permit the annexation of State-owned land does not violate the general rule. Indeed, our conclusion accords with that of the leading commentator:

          Under the laws of most states, a city may extend its boundaries to include territory belonging to ... the state .... Of course, a city can exercise no control over state property that will interfere with the superior authority. The city laws may be enforced upon such territory as elsewhere so long as they do not encroach upon sovereign rights or powers, and such property frequently lies within the limits of municipalities.

2 McQuillan Municipal Corporations §7.18b, at 466-67 (3d ed. 1988).

 Finally, construing the annexation provisions to prohibit municipalities from annexing State-owned land might in some instances put municipal corporations to an untenable choice between annexing less than all of the area necessary to the accomplishment of their purposes or violating the prohibition in §19(a)(2) against creating "pockets" of unincorporated land within the incorporated territory. We do not think that the General Assembly intended thus to unnecessarily interpose the State as a potential obstacle to the accomplishment of a municipal corporation's purposes.

III

Conclusion

In sum, it is our opinion that the Town of Queenstown may annex land underlying Queenstown Creek, notwithstanding that the land underlying the creek is owned by the State.

                                        J. Joseph Curran, Jr.
                                        Attorney General

                                        C. J. Messerschmidt
                                        Assistant Attorney General

Jack Schwartz
Chief Counsel,
Opinions & Advice

1
Thus, this opinion confirms the advice previously provided by our office to the Town Commissioners. Letter to William A. Rada, Jr., President of Town Commissioners, from Assistant Attorney General Richard E. Israel (January 8, 1987). Although we address in detail only the question of a municipality's annexation of State-owned land, we agree with Mr. Israel's advice on other issues, including his analysis of whether territory separated from the existing municipality by navigable waters is "contiguous," within the meaning of Article 23A, §19 of the Maryland Code.

2
However, a private landowner's riparian improvements — that is, piers, wharves, and the like — that are permitted by the State become, upon their completion, part of the dry land to which they are attached and, therefore, subject to local zoning regulations. People's Counsel v. Maryland Marine Manufacturing Co., 316 Md. 491, 500, 560 A.2d 32 (1989).

3
Annexation may also be initiated by a petition signed by 25% of the residents of the area to be annexed who are registered voters and by the owners of 25% of the assessed valuation of the real property in the area to be annexed. §19(c).