Constitutional Home Rule
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Prior to 1954 the General Assembly closely supervised the creation and operation of the municipal corporations by enacting individually drafted charters and any amendments to the charters. However, the General Assembly shifted the balance of municipal power to the municipal corporations themselves with the enactment of Chapter 53 of 1954, proposing a constitutional amendment. Upon ratification by the voters on November 2, 1954, Article XI-E, known as the "Municipal Home Rule Amendment", was added to the constitution. The general purpose of Article XI-E is to permit the municipal corporations to govern themselves in local matters. The courts have interpreted this amendment as a strong and explicit intention that the General Assembly only deal with the charters of the municipal corporations on a general basis and not enact local legislation to amend the charters of individual municipal corporations.
Under Article XI-E, Section 1 of the Maryland Constitution, except as otherwise provided, the General Assembly may only legislate on matters relating to the incorporation, organization, government, or affairs of municipal corporations by general laws which apply "alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article." Article XI-E, Section 2 requires the General Assembly to divide municipal corporations into not more than four classes based on population. However, Article 23A, Section 10 of the Annotated Code of Maryland provides that there is only one class, which contains all municipal corporations. Article XI-E, Section 3 grants municipal corporations authority to adopt a new charter or to amend or repeal their municipal charter or local laws relating to the incorporation, organization, government, or affairs of the municipal corporation. Article XI-E, Section 4 addresses the manner in which a municipal charter may be amended and requires the General Assembly to amplify its provisions by general law. Statutory provisions governing municipal charter amendments are codified in Article 23A, Sections 11 through 18 of the Annotated Code of Maryland. Article XI-E, Section 5 grants the General Assembly authority to set maximum property tax rates and to limit the amount of debt that a municipal corporation may incur. However, a tax or debt limit may not take effect until approved by the voters of the municipal corporation at a regular or special election. Article XI-E, Section 5 also prohibits a municipal corporation from levying "any type of tax, license fee, franchise tax or fee" that was not in effect on January 1, 1954, unless authorized by the General Assembly by general law. Article XI-E, Section 6 addresses the relationship between municipal charters and other law.
Article XI-E of the Maryland Constitution is set out in Appendix 1. The role of the General Assembly in relation to municipal corporations is addressed in Chapter 5.
Incorporation Process
Article 23A, Sections 20 through 30 of the Annotated Code of Maryland prescribe the manner in which a new municipal corporation is incorporated under Article XI-E of the Maryland Constitution. Exhibit 3.5 outlines the municipal incorporation process.
In order to incorporate, a community must consist of a minimum of 300 residents in the area proposed for incorporation. A petition to incorporate must be submitted to the county in which the area proposed for incorporation is located. A standardized petition form developed by the Office of the Attorney General is available for communities seeking incorporation through each county's board of election supervisors. If the community's petition satisfies statutory requirements, the county must appoint a liaison to work with the community's organizing committee. What follows is an exchange of information, development of a proposed charter, and exchange of comments between the county and the
organizing committee. Next, the county may schedule a referendum on the matter of incorporation or reject a proposed incorporation. However, if a county rejects a referendum request, the county must provide in writing the reasons for the rejection and establish reasonable procedures for reconsideration of its rejection, including an opportunity for a public hearing. The county may then schedule a referendum on incorporation or affirm its earlier rejection.
If the incorporation effort advances to referendum, and the voters of the community approve incorporation, the county must proclaim the results within ten days after receiving certification from the board of supervisors of elections. Subject to certain required statutory procedures, the incorporation takes effect 30 days following the proclamation.
Governmental Structure and Election of Local Officials
Neither the Maryland Constitution nor the Annotated Code of Maryland prescribes the forms of government for municipal corporations. Article 23A, Section 9(a) of the Annotated Code of Maryland merely states that, "the term municipal corporation shall include all cities, towns and villages, now or hereafter created under any general or special law of this State for general governmental purposes, which are subject to the provisions of Article XI-E of the Maryland Constitution, which possess legislative, administrative and police powers for the general exercise of municipal functions, and which carry on such functions through a set of elected and other officials."
Given these broad guidelines, the forms of government that the municipal corporations have developed can be grouped into three basic categories:
According to a recent survey by the Maryland Municipal League, approximately 45 percent of municipal corporations utilize the mayor-council form of government. Some mayors are "stronger" than others, meaning, they have veto power over legislative actions of the council; others share power as a member of the council. Of the other forms, approximately 33 percent have commissions and approximately 22 percent use the council-manger structure. Within each category, there are variations as to the qualifications, number, terms, and duties of municipal officials. Titles of municipal officials also vary; for example, in some municipal corporations, such as the Town of Middletown, the title Burgess is used.
Because municipal corporations are not subject to Article XVII of the Maryland Constitution (Quadrennial Elections), they have considerable discretion in the manner in which local officials are elected. Local election procedures are outlined in the charters of the municipal corporations. Municipal charters establish the terms of office and dates of elections. Often, the terms of office for municipal officials are staggered.
With limited exceptions, the State election law does not apply to municipal elections. However, Article 33 of the Annotated Code of Maryland requires that municipal corporations generally must comply with universal registration provisions and Article 23A, Section 47 of the Annotated Code requires municipal corporations to allow voting by absentee ballot. Municipal corporations may rely on county election boards to administer municipal elections. Overall, the flexibility that municipal corporations possess in election matters contributes to the autonomy of Maryland's municipal corporations.
A significant development in the way municipal corporations operate is the marked growth in the number of managers or administrators appointed by municipal governing bodies. According to the Maryland Municipal League, among Maryland's municipal chief appointed officials, there are 35 municipal mangers, 23 administrators, and 12 circuit-rider administrators. This trend may be attributable to the increasing complexity of running municipal governments which creates a need for trained, experienced individuals to implement the policies developed by elected officials. Municipal managers may provide the corporate memory and attention to details that policy-oriented and often transient elected officials frequently cannot offer.
Powers of Municipalities
Article XI-E of the Maryland Constitution grants a municipal corporation authority to amend or repeal its charter or local laws relating to the incorporation, organization, government, or affairs of the municipal corporation and authority to adopt a new charter. Procedures governing charter amendments are found in Article 23A, Section 11 through 18 of the Annotated Code of Maryland.
The General Assembly has codified a municipal corporation's powers in Article 23A, Section 2 of the Annotated Code of Maryland. This section includes a detailed list of municipal powers. Article 23A, Section 2 also provides a broad grant of authority:
...to pass such ordinances not contrary to the Constitution of Maryland, public general law, or except as provided in Section 2B of this Article [Application of county legislation to municipalities], public local law as they may deem necessary in order to assure the good government of the municipality, to protect and preserve the municipality's rights, property, and privileges, to preserve peace and good order, to secure persons and property from danger and destruction, and to protect the health, comfort and convenience of the citizens of the municipality...
Article 23A, Section 2 of the Annotated Code is set out in Appendix 3. In addition, three specific powers deserve particular mention: (1) amendments to municipal charters; (2) annexation of property; and (3) urban renewal powers for slum clearance. There are also two areas where municipal corporations have concurrent authority with the General Assembly: limitation on property taxes and limitations on debt. These latter two issues are addressed in Chapter 5.
Charter Amendments
As noted above, Article XI-E of the Maryland Constitution grants authority for the amendment of municipal charters and the General Assembly has established specific procedures. A charter amendment may be initiated by either resolution of the legislative body of the municipal corporation or by a petition signed by at least 20 percent of the qualified voters of the municipality. A proposed charter amendment must contain only a single subject. The law prescribes detailed procedural requirements pertaining to proposed charter amendments, including notice and publication requirements. An amendment proposed by the legislative body may be petitioned to referendum by 20 percent of the qualified voters. Otherwise, it may be adopted as proposed by majority vote of the legislative body. A charter amendment proposed by petition may be either adopted by resolution of the legislative body or submitted to referendum.
If a charter amendment is petitioned or submitted to referendum, the election may be held at the next regular municipal election or at a special election held within a statutory prescribed time frame. Within ten days following an election, the mayor or chief executive officer of the municipal corporation is required to proclaim the results. The law prescribes the time that a proposed charter amendment normally takes effect, subject to certain procedural requirements under Article 23A of the Annotated Code of Maryland.
Annexations
As part of its home rule powers, a municipal corporation may annex contiguous, unincorporated property in accordance with the provisions of Article 23A, Section 19 of the Annotated Code of Maryland. Unlike the incorporation process, a municipal corporation may exercise this power without obtaining county approval. An annexation may be initiated by the municipal legislative body or by petition of the residents of the area seeking annexation. The legislative body must satisfy public notice and hearing requirements on the resolution to incorporate. The annexation resolution becomes effective after the favorable vote by the legislative body, provided that the resolution is not petitioned to a referendum by the residents of the area seeking annexation, by the municipal residents, or by the county governing body. The annexation process is outlined in Exhibit 3.6. Following annexation, Article 23A, Section 9(c) of the Annotated Code of Maryland restricts substantial changes in the zoning classification without consent of the county.
Urban Renewal
Notwithstanding the broad grant of municipal home rule authority, a municipal corporation must receive express authority from the General Assembly in order to exercise urban renewal powers for slum clearance. The Urban Renewal Amendment, Article III, Section 61 of the Maryland Constitution, expressly provides that the General Assembly's authority to enact local laws regarding local urban renewal projects for slum clearance prevails over the restrictions under Article XI-E of the constitution. To date, the General Assembly has granted authority under Article III, Section 61 to 53 municipal corporations. This authority is codified as an appendix to each of the municipal charters found in the Public Local Laws of Maryland - Compilation of Municipal Charters. Once granted such authority, a municipal corporation also is eligible to exercise eminent domain powers for individual blighted properties under Article 23A, Section 2(b)(37) of the Annotated Code of Maryland.
Limitations on Municipal Authority
Although municipal corporations exercise broad home rule authority, such authority is not absolute. Article XI-E, Section 6 of the Maryland Constitution provides, in part, that "[a]ll charter provisions, or amendments thereto, ... shall be subject to all applicable [public general] laws enacted by the General Assembly..." This provision also restricts municipal corporations from regulating alcoholic beverage sales as well as sales on Sundays (blue laws) in its charter. Article XI-E restricts a municipal corporation from imposing "any tax, license fee, franchise tax or fee" unless it was in effect on January 1, 1954, or authorized by the General Assembly for all municipal corporations within a given class. Nor may the governing body of a municipal corporation legislate in areas that have been preempted by the State either by express preemption or preemption by implication. The issue of State preemption is addressed in Chapter 5.
Codification of Municipal Charters
While municipal corporations have broad authority to amend their charters, the law requires municipal corporations to follow certain procedures. Municipal corporations must regularly register charter amendments, as well as all annexation resolutions, with the Department of Legislative Services. Under Article 23A, Sections 9A(c) and 17(g) of the Annotated Code of Maryland, such municipal enactments are not effective until they have been registered with the department. Pursuant to Chapter 77 of 1983, and Sections 10 and 11 of Chapter 14 of 1997, the Department of Legislative Services publishes a compilation of all the municipal charters, Public Local Laws of Maryland - Compilation of Municipal Charters. This publication contains the official version of the charter for each municipal corporation in the State and is updated annually to reflect the charter amendments that are passed by the legislative body of each municipal corporation. The compilation also includes the urban renewal powers that have been granted by the General Assembly under Article III, Section 61 of the Constitution of Maryland. An appendix to the charter of each of these municipal corporations reflects the parameters of the urban renewal powers for that municipal corporation. The appendix may be amended or repealed only by the General Assembly.