Maryland Attorney General Opinion 99OAG152

152 [99 Op. Att’y
ZONING AND PLANNING
ADOPTION OF COMPREHENSIVE PLAN – WHETHER A LOCAL
LEGISLATIVE BODY MAY REVISE THE PLAN APPROVED
BY THE PLANNING COMMISSION WITHOUT FIRST
RETURNING THE PLAN TO THE COMMISSION FOR ITS
RECOMMENDATION
November 18, 2014

Honorable Patrick T. Rockinberg
Mayor, Town of Mount Airy

You have asked for an opinion on the scope of the Mount
Airy Town Council’s authority to make changes to a
comprehensive plan, or parts of a plan, that Mount Airy’s
Planning Commission has recommended for the Council’s
adoption. Specifically, you ask this question: In the event of
significant disagreement between the Town Council and the
Planning Commission regarding material aspects of a comp-
rehensive plan or plan element, does the Town Council have the
authority to adopt material changes to the comprehensive plan or
plan element as formulated by the Planning Commission, or must
the Town Council have the consent of the Planning Commission
on any changes before adopting them? By letter dated June 4,
2011, the Town Attorney gave his views on this question,
concluding that the Town Council may adopt “any changes to the
[Planning Commission’s comprehensive plan] that a majority of
the Council deems necessary and appropriate.”1
Respectfully, we disagree. We conclude that, under § 3-
205(d)(1) of the Land Use Article,2 the Town Council may either
adopt or not adopt a comprehensive plan or plan element
approved by the Planning Commission but may not adopt even
minor substantive changes to the document without first returning
the plan to the Commission for its recommendation.3

1
We also had the benefit of input from a number of municipal and
county attorneys who submitted analyses of the issue in response to
inquiries from the Maryland Association of Counties and the Maryland
Municipal League.
2
Except as noted, all statutory references are to the Land Use
Article or “LU” (2012, with 2013 Supplement).
3
We reached the same conclusion in 1993, when we concurred
with the Carroll County Attorney’s analysis of this and related issues.
Gen. 152] 153

I
Background
Planning and zoning are part of the police power of the
State. See, e.g., Mayor and City Council of Rockville v. Rylyns
Enterprises, Inc., 372 Md. 514, 546 (2002) (“‘Zoning is
permissible only as an exercise of the police power of the
State.’”) (quoting Cassel v. Mayor and City Council of Baltimore,
195 Md. 348, 353 (1950)); Halle Dev., Inc. v. Anne Arundel
Cnty., 141 Md. App. 542, 554 (2001) (county authority to enact
an adequate public facilities ordinance is “pursuant to its general
police power and power to regulate planning and zoning”). A
local government thus may exercise its zoning and planning
powers “only to the extent and in the manner directed by the State
Legislature.” West Montgomery Ass’n v. Maryland-Nat’l Cap.
Park & Planning Comm’n, 309 Md. 183, 186 (1987); see also id.
at 198 (noting that a chartered county “is precluded, by the
express and unequivocal language of the statute that granted it
zoning power, from exercising that power in any manner other
than that specifically authorized[.]”); Cassel, 195 Md. at 353
(stating that the local exercise of zoning authority is “confined by
the limitations fixed in the grant by the State”); Port Wardens of
Annapolis v. Maryland Capital Yacht Club, 261 Md. 48, 56
(1971) (“[T]he zoning powers of municipal corporations are
derived from the State Enabling Acts and not from any general
grant of the State’s police power to municipal corporations.”)
(quoting Lunter v. Laudeman, 251 Md. 203, 209 (1968)).
The General Assembly, through enabling statutes, has
delegated planning and zoning powers to local governments in
varying degrees and subject to certain requirements. See Md.
Code Ann., Local Gov’t (“LG”) §§ 5-203, 5-212, 5-213 (granting
to municipalities legislative powers over general health and
welfare, including powers to adopt planning and zoning controls
and zoning regulations); LG §§ 10-102, 10-324 (same with
respect to charter counties and code counties); Md. Code Ann.,
Land Use Article (“LU”), Division I (regarding planning and

Opinion No. 93-034 (Aug. 18, 1993), 1993 WL 343622 *7
(unpublished) (concluding that a local legislative body “can decline to
adopt what the Planning Commission submits, but it cannot adopt a
different proposal without sending that proposal to the Planning
Commission”).
154 [99 Op. Att’y

zoning in non-charter counties and municipalities)4 and Division
II (regarding planning and zoning in Prince George’s and
Montgomery Counties); see also Rylyns, 372 Md. at 528 n.3
(tracing “the entire panoply of related enabling statutes in
Maryland”). The scope of a municipality’s planning power is
primarily defined by the provisions in Titles 1 and 3 of the Land
Use Article. The provision at issue in this opinion, § 3-205(d)(1),
applies only to non-charter counties and to municipalities other
than Baltimore City. Before turning to that provision, we review
the legal framework that the General Assembly has prescribed for
the preparation, approval, and adoption of local comprehensive
plans in municipalities and non-charter counties.
Under the Land Use Article, every jurisdiction that exercises
planning and zoning powers must adopt a comprehensive plan.
See §§ 1-405, 3-101(a), 3-204(a). As described by the Court of
Appeals, a comprehensive plan is “‘a general plan to control and
direct the use and development of property in a [locality], or a
large part thereof, by dividing it into districts according to the
present and potential use of the property.’” Maryland-Nat’l Cap.
Park & Planning Comm’n v. Greater Baden-Aquasco Citizens
Ass’n, 412 Md. 73, 85 (2009) (quoting E.C. Yokley, Zoning Law
and Practice § 5.2 (4th ed. 2003)). “‘[M]ore than a detailed
zoning map,’” a comprehensive plan “‘should apply to a
substantial area, be the product of long study, and control land use
consistent with the public interest. An important characteristic of
a comprehensive plan is that it be well thought out and give
consideration to the common needs of the particular area.’” Id.
(also quoting Yokley).
The Land Use Article authorizes local jurisdictions to
appoint a planning commission to make and approve a
comprehensive plan and then recommend that plan to the
legislative body for adoption. §§ 2-101, 3-202(a)(1). Planning
commission members are ordinarily appointed or confirmed by
the legislative body and may include one of the legislative body’s
own elected members in an ex officio capacity. § 2-102 (2014
4
While Division I of the Land Use Article applies generally to all
local jurisdictions, the vast majority of its provisions apply only to non-
charter counties and municipalities, with only certain specific
provisions applicable to charter counties and Baltimore City. See § 1-
401 (list of provisions within Division I that apply to charter counties);
§ 10-103 (listing those provisions that apply to Baltimore City). This
opinion does not address the planning law applicable to charter
counties.
Gen. 152] 155

Supp.). Once appointed, a member of a planning commission
must complete an education course on the role of the plan, the
standards for special exceptions and variances, and the local
jurisdiction’s zoning and planning regulations. § 1-206 (2014
Supp.). Planning commissioners serve 5-year terms on a
staggered basis; their terms thus do not necessarily coincide with
those of the members of the legislative body that appointed them.
See § 2-102(c) (2014 Supp.).
A planning commission may prepare and recommend to the
legislative body three types of plans for adoption: (1) a “whole
plan”; (2) “successive parts of the plan, which correspond to
geographic sections or divisions of the local jurisdiction”;5 or (3)
“an amendment to the plan.” § 3-202(a)(1)-(2). The planning
commission must review an approved plan at least once every 10
years to determine whether to revise or amend the plan, as
necessary. § 3-301 (2014 Supp.). Specific local laws and
actions—such as zoning ordinances, subdivision regulations,
planned unit development ordinances, and the approval of special
exceptions—must be “consistent with,” and not “contrary to,” a
jurisdiction’s plan. § 1-101(p) (2014 Supp.), § 1-303.
A non-charter county or municipal planning commission
must “make the plan with the general purpose of guiding and
accomplishing the coordinated, adjusted, and harmonious
development of the local jurisdiction and its environs.” § 3-
201(a)(2). The commission is required to “carefully and
comprehensively” survey and study present conditions in the
jurisdiction, projections for future growth, and “the relation of the
jurisdiction to neighboring jurisdictions.” § 3-201(a)(1). The
commission is further charged with promoting public interest in,
and understanding of, the jurisdiction’s plan, and it must consult
with other public officials, stakeholder agencies and
organizations, and citizens about “protecting or executing the
plan.” § 3-201(d).
As to the content of the plan, the Land Use Article sets forth
twelve “visions” that “the planning commission shall
implement . . . through the comprehensive plan.” § 1-201; see
also § 3-201(c). The plan must implement these visions through
5
A plan for a geographic section or divisions, commonly referred
to as a “sector plan,” relates to a discrete geographical area of the
jurisdiction.
156 [99 Op. Att’y

certain mandatory “elements,” which address land use,
transportation, water resources, sensitive areas, and other topics.
See §§ 3-102 through 3-113. The plan may also include optional
elements to address subjects such as community renewal,
conservation, housing, natural resources, and the general location
and extent of public utilities. § 3-102. These considerations are
not to be addressed in isolation: “The elements of the plans shall
be interrelated and each element shall describe how it relates to
each of the other elements.” § 3-202(b)(2).
After a planning commission prepares a whole plan, sector
plan, or a plan amendment, it must hold at least one public
hearing on the proposed plan and circulate it to adjoining
jurisdictions and the State units and other local jurisdictions
responsible for financing or constructing the public improvements
necessary to implement the plan. § 3-203(b), (c) (2014 Supp.).
The planning commission then may resolve to “approve the plan
or any part of or amendment to the plan.” § 3-203(e) (2014
Supp.). Following approval of the plan, “[a]n attested copy of the
plan or part of the plan shall be certified to the legislative body.”
§ 3-203(f) (2014). The planning commission must also send to
the legislative body the recommendations received from “each
unit and jurisdiction that comment[ed] on the plan.” § 3-203(d)
(2014 Supp.).
The section of the Land Use Article at issue here, § 3-
205(d), addresses the actions that the legislative body may take in
response to the planning commission’s recommendation. Section
3-205(d)(1) provides:
The legislative body may adopt: (i) the whole
plan; (ii) a plan for one or more geographic
sections or divisions of the local jurisdiction;
or (iii) an amendment or extension of or
addition to the plan.
The statute does not provide an opportunity for the public to
comment during the legislative body’s consideration of the plan.
If the legislative body “fails to act” within 60 days after the date
an approved plan or plan amendment has been submitted to it by
the planning commission, then the plan “shall be considered
approved” by the legislative body.6 § 3-205(d)(2).

6
Subsections (a) through (c), though contained within § 3-205, are
unrelated to the process by which comprehensive plans are prepared,
Gen. 152] 157

II
Analysis
A. The Plain Language of §§ 3-202 and 3-205 of the Land
Use Article
The Land Use Article does not expressly address your
question about a legislative body’s authority to materially change
a plan approved by the planning commission. Two sections
address the authority of a legislative body. Section 3-204
provides that “[e]ach local jurisdiction shall adopt a plan that
includes: (1) the [required] elements . . . ; and (2) the visions set
forth in § 1-201 of this article.” Section 3-205—the focus of your
question and our inquiry—provides that the local legislative body
may adopt a “whole” plan, a sector plan, or an “amendment or
extension of or addition to” a plan, § 3-205(d)(1), but does not
address whether the legislative body may materially change the
planning commission’s approved plan. For example, the
provision authorizes the legislative body to adopt an
“amendment” to a plan, but it is not clear whether this refers to
the same “amendment” that the planning commission recom-
mended or to a new amendment of whatever the commission
recommended, be it a whole plan, sector plan, or plan
amendment.
The ambiguity is not resolved when § 3-205 is read in
conjunction with the options available to the planning
commission under § 3-202. In both sections, the General
Assembly used nearly identical terms to describe what type of
plan the planning commission could recommend and the
legislative body could adopt. Compare § 3-202(a)(2) (authorizing
the planning commission to adopt “(i) the whole plan; (ii)
successive parts of the plan, which correspond to geographic
sections or divisions of the local jurisdiction; and (iii) an
amendment to the plan”), with § 3-205(d)(1) (authorizing the

approved, and adopted. Rather, § 3-205(a) and (b) provide that, in
jurisdictions where the legislative body has adopted the planning
commission’s approved plan, certain streets, parks, and public
improvements must be reviewed by the planning commission for a
determination as to whether a proposed project is consistent with the
plan. The legislative body may, pursuant to 3-205(c)(3), “overrule” the
planning commission’s determination with respect to such projects by a
two-thirds vote.
158 [99 Op. Att’y

legislative body to approve “(i) the whole plan; (ii) a plan for one
or more geographic sections or divisions of the local jurisdiction;
or (iii) an amendment or extension of or addition to the plan”).
This use of nearly identical terms to describe the two bodies’
options could be read to limit the local legislative body to
adopting what the commission had proposed.
We recognize that there are slight differences in the terms
used in subparagraphs (ii) and (iii), but they appear to us to be
non-substantive. That seems fairly clear with respect to (ii);
despite the slight wording differences, the two provisions
unmistakably describe what is commonly known as a “sector
plan.” It is less clear with respect to (iii), where the inclusion of
the phrase “extension of or addition to” in § 3-205, but not in § 3-
202, would seem to weigh against the conclusion that the General
Assembly intended to limit the legislative body’s options to
approving or disapproving that which the planning commission
had recommended. But the phrase “extension of or addition”
originally did appear in what is now § 3-202; it was only removed
during the 2000 code revision process related to former Article
66B. See 2000 Md. Laws, ch. 426 at 2321-22 (revising Article
66B, §§ 3.07(a)(3), (b)(1) and (e)(1)).7 Because the revisions
were made pursuant to code revision, we must consider them to
be non-substantive “absent the clearest legislative intent.” See
Nationwide Mutual Ins. Co. v. United States Fidelity & Guaranty
Co., 314 Md. 131, 147 (1988) (internal quotation marks omitted).
Here, the indications of legislative intent are not so clear.
The fiscal note expressly states that the 2000 code revision made
“no substantive change from current law.” Fiscal Note, S.B. 624
(2000). More specifically, the drafter’s note that accompanied the
2000 code revision indicates that the alteration of § 3-202 was not
intended to be substantive, but to remove a redundancy: “[T]he
former references to ‘or extension of or addition’ and ‘extension,
or addition,’ respectively are deleted as included within the
reference to ‘amendment.’” 2000 Md. Laws, ch. 426 at 2323. A
subsequent Revisor’s Note accompanying the transfer of former
Article 66B into the Land Use Article, however, seems to indicate
that the term “extension”—which, by that time, remained in the
provisions relating to the legislative body but not those relating to

7
The language was thus altered from the “commission may
recommend adoption of . . . any amendment or extension of or addition
to the plan,” to how § 3-202(a)(2) currently reads: the “commission
may recommend adoption of . . . an amendment to the plan.”
Gen. 152] 159

the planning commission—might have substantive meaning after
all:
The Land Use Article Review Committee
also notes, for consideration by the General
Assembly, that under subsection (d)(1)(iii) of
this section, it is unclear whether the
“extension” of a plan that may be adopted is
a geographic or a temporal extension. The
General Assembly may wish to clarify this
provision.
§ 3-205, Revisor’s Note.
These conflicting indications do not amount to the type of
“clearest legislative intent” that would be required to ascribe
substantive significance to the fact that the phrase “extension of
or addition” appears in what is now § 3-205 but not in § 3-202.
The language in the two provisions is thus substantively the same.
The General Assembly’s decision to limit a local legislative body
to the same options available to the planning commission suggests
to us, as a textual matter, that the legislative body may act only on
what the commission recommends, whether that be a whole plan,
a sector plan, or a plan amendment. But because the suggestion is
not so strong as to foreclose other interpretations, we believe the
statute remains ambiguous on this point. See Bourgeois v. Live
Nation Entm’t, Inc., 430 Md. 14, 27 (2013) (statute is ambiguous
if “subject to more than one interpretation”).
In addressing statutory ambiguities, we are to keep in mind
that “[t]he ultimate goal in construing and applying a statute is to
‘discern the actual intent of the [L]egislature in enacting it.’” Ali
v. CIT Tech. Fin. Servs., 416 Md. 249, 260 (2010) (quoting Chow
v. State, 393 Md. 431, 443-44 (2006)). To discern legislative
intent, we must “look[] to the statute’s legislative history,
purpose, and structure, as well as to case law.” Bourgeois, 430
Md. at 27; see also Green v. Church of Jesus Christ of Latter-day
Saints, 430 Md. 119, 135 (2013) (“When the words of a statute
are ambiguous, we attempt to resolve that ambiguity ‘by
searching for legislative intent in other indicia, including the
history of the legislation or other relevant sources intrinsic and
extrinsic to the legislative process.’”) (quoting Gardner v. State,
420 Md. 1, 9 (2011)). Here, we will turn to the legislative history
of § 3-205, and particularly to the views of the Department of
Legislative Services’ Code Revision Committee. As the Court of
160 [99 Op. Att’y

Appeals has instructed, the Revisor’s Notes, “though not part of
the statute, ‘are entitled to considerable weight in ascertaining
legislative intent.’” See Blevins & Wills v. Baltimore County, 352
Md. 620, 643 (1999) (quoting Office & Prof. Employees Int’l v.
MTA, 295 Md. 88, 101 (1982)).
B. The 2012 Code Revision
In 2011, the Land Use Article Review Committee
(“Committee”) of the Department of Legislative Services
reviewed Articles 66B and 28 for purposes of creating the Land
Use Article.8 The primary purpose of the code revision, enacted
in 2012, was to modernize and clarify the applicable land use
provisions, without making substantive changes to the law. See
Summary Report on Chapter 426 of the Acts of 2012, Land Use
Article at 1. As part of the code revision process, the Committee
used Revisor’s Notes “to call to the attention of the General
Assembly policy issues that are beyond the purview of the
revision process.” Id.
The Revisor’s Note to § 3-205 directly addressed the
authority of a legislative body to amend a comprehensive plan as
prepared and approved by a planning commission. In that note,
the Committee concluded that the current law (former Article
66B, § 3.08) did not authorize the legislative body to make
changes to a planning commission’s plan. Specifically, the note
reads:
The current provision forces the legislative
body to approve or reject the recommended
plan or amendment outright, which might be
considered cumbersome by both bodies, and
might unnecessarily prolong an adoption
process that may involve the need to make
minor changes to a recommended plan or
amendment. Similarly, in most local
jurisdictions, it is unclear which body has the
final say in plan adoption, and there is no
provision to determine how a dispute

8
See http://dls.state.md.us/Content.aspx?page=76 (last visited on
Nov. 11, 2014) for a description of the Code Revision effort, including
its history and background. The Land Use Article Review Committee
was chaired by the Honorable Glenn Harrell, Jr., a judge on the
Maryland Court of Appeals.
Gen. 152] 161

between the legislative body and the
planning body may be resolved.
§ 3-205, Revisor’s Note (emphasis added). Having noted the
“cumbersome” aspects of the provision, the Committee then
recommended that the General Assembly consider amending the
section to provide a mechanism for a legislative body to, among
other things, remand all or part of a comprehensive plan to the
planning commission with recommended changes. Id. The
General Assembly did not adopt that recommendation when it
revised and recodified the former Article 66B in 2012; instead,
the General Assembly adopted the recodification of the “current
provision” without substantive change.9 Affording the Com-
mittee’s interpretation the “considerable weight” it is due,
Blevins, 352 Md. at 643, the Revisor’s Note suggests strongly that
the legislative body is not authorized to adopt substantive
alterations or amendments to a comprehensive plan that is
prepared and approved by a planning commission.
C. The Legislative History
We turn next to the legislative history of the relevant
provisions to see whether it suggests a different outcome. The
provisions of former Article 66B were first enacted by the
General Assembly in 1927 after the landmark decision by the
United States Supreme Court in Village of Euclid v. Ambler

9
The 2012 code revision also altered the language of former Art.
66B § 3.08(c)(2)(ii) to provide that the legislative body “may adopt” a
plan, § 3-205(d)(1), where the prior version read “shall adopt.”
Ordinarily, we would think that a change from “shall” to “may” would
be considered substantive, but the change does not bear on the issue we
address here because it does not affect the options available to the
legislative body. Moreover, the fact that the recommendation of the
planning commission “shall be considered approved if the legislative
body fails to act within 60 days,” § 3-205(d)(2), already implies that the
legislative body might elect not to act. The Committee may have
understood that the statute’s use of the word “shall” did not accurately
describe the legislative body’s obligation under the statute. See also
Director, Patuxent Inst. v. Cash, 269 Md. 331, 344 (1973) (“[I]t is well
settled that the use of the words ‘shall’ or ‘may’ [is] not controlling, in
determining whether a particular provision is mandatory or
directory . . . . The question of construction turns upon the intention of
the Legislature as gathered from the nature of the subject matter and the
purposes to be accomplished.” (internal quotation marks omitted)).
162 [99 Op. Att’y

Realty Co., 272 U.S. 365 (1926), which upheld local zoning as a
valid exercise of the “police power.” See 1927 Md. Laws, ch.
705; see also Lipsitz v. Parr, 164 Md. 222, 228-29 (1933). The
statute was amended in 1933 to authorize the creation of a
planning commission and the preparation, approval, and adoption
of local comprehensive plans. 1933 Md. Laws, ch. 599. The
1933 amendments were patterned after the “Standard State
Zoning Enabling Act” and the “Standard City Planning Enabling
Act,” which the U.S. Department of Commerce had published in
1924 and 1928, respectively. 93 Opinions of the Attorney
General 103, 106 n.6 (2008). In fact, Maryland borrowed some
provisions of the model zoning act verbatim, Anderson House,
LLC v. Rockville, 402 Md. 689, 713 (2008), and adopted the
model planning act “virtually word for word.” See Maryland
Planning and Zoning Law Study Commission, Interim Report: A
Review and Discussion of Development Trends in Maryland
(1968) (the “Interim Study Commission Report”) at 9. Although
the General Assembly has made various changes over the years to
its original enactments of the model act provisions, it has adhered
to two related goals of the model acts: first, that a locality’s land-
use decisions be made in accordance with a long-term and
carefully-created planning document, and, second, that the
creation of a plan be insulated to some degree from short-term
political pressures on a locality’s elected officials.
1. The Model Acts and Maryland’s Original Enabling
Statutes.
Under the model acts, local jurisdictions were not required
to prepare and approve a comprehensive plan, but merely
empowered to do so. U.S. Dep’t of Comm., The Advisory
Committee on City Planning and Zoning, “A Standard City
Planning Enabling Act” at 7, n.7 (1928) (“Model Planning Act”).
The Model Planning Act envisioned, however, that the
comprehensive planning process—which was distinct from the
zoning process—should be carried out by a permanent planning
commission, whose job would be to create the comprehensive
plan and update the plan as needed. See id at iii (“Forward” by
then Secretary of Commerce Herbert Hoover). The model
provisions indicated that a planning commission was to “make
and adopt a master plan” for the jurisdiction, id. at 13 (§ 6), and
make “amendments” and “extensions” thereof. Id. at 18 (§ 8).
Further, the drafters of the Model Planning Act contemplated that
a planning commission should “not only make the plan but also
have a strong influence in protecting the plan against departures
and in getting the plan carried out . . . .” Id. at 7, n.8. To this end,
Gen. 152] 163

the model act included a provision that buildings, utilities, or
other public improvements should be approved by the planning
commission, and that a planning commission’s determination on
such improvements could be overruled by the legislature only
upon a super majority vote. Id. at 19-21 (§ 9). As detailed above,
these model provisions have been carried forward, either in whole
or part, to the Land Use Article.
Of particular relevance here, the drafters of the Model
Planning Act understood that the roles of planning and legislation
“are quite different from each other and involve differing
considerations, differing points of view, and differing talents and
interests.” Id. at 18, n.44. As a result, the two roles “need to be
reposed in two separate bodies,” with the planning commission,
or “board,” entrusted with the planning process. Id.; see also id.
at 7, n.8. The drafters envisioned the “planning board” as the
“organ of the municipal government which performs [the]
planning function,” and they explained that “within its sphere it
needs the same independence, specialized qualification, and
permanence as the other organs of the city government need in
their respective spheres.” Id. at 7, n.8.
The drafters of the Model Planning Act also explicitly
distinguished the “planning function” from the “legislative
function.” They noted that legislators serve only for the length of
their elected terms, with their “time and energies taken up with
the problems of current legislation and current control of the
public moneys.” Id. at 7, n.10. Comprehensive planning, by
contrast, is by its nature “a continuous and permanent” endeavor,
id. at 7, n.8, designed “for a long period of future
years . . . cover[ing] the incumbency of many successive
[legislators].” Id. at 7-8, n.10. The drafters therefore concluded
that a planning commission “should be free from the pressures of
purely current problems.” Id. The role of planning, as the
drafters saw it, should thus be “intrusted to a board or body
specially chosen for the purpose and given a place in the structure
of the government specially appropriate to the nature of this
planning work.” Id. And “[f]or these reasons the plan should not
be required to be submitted to or approved by [the] council.” Id.
at 18 n.44.
Consistent with these principles and goals, Maryland’s
enabling act, as originally enacted, charged a jurisdiction’s
planning commission with the duty to both “make and adopt” the
comprehensive plan. 1933 Md. Laws, ch. 599, § 6 (codified at
164 [99 Op. Att’y

Art. 66B, § 15 (1935 Supp.) (emphasis added)). At the time, a
jurisdiction’s legislative body had no role in the comprehensive
planning process. Regarding plan adoption, the planning
commission had the same three options that it currently has under
§ 3-202: It could adopt (i) “the plan as a whole,” (ii) “successive
parts of the plan . . . corresponding with major geographical
sections or divisions” of the jurisdiction, or (iii) “any amendment
or extension thereof or addition thereto.” Id. § 8 (codified at Art.
66B, § 17 (1935 Supp.)).
2. 1970 Revision of Article 66B
In 1966, the General Assembly established the Maryland
Planning and Zoning Law Study Commission (the “Study
Commission”), and directed it “to make a comprehensive review
of the State’s planning and zoning laws.” Interim Study
Commission Report at iii. The Study Commission observed that
Article 66B, consistent with the intent of the drafters of the model
acts, treated the comprehensive planning function and the local
zoning function as “two separate acts,” with the planning under-
taken by the planning commission and zoning by the legislative
body. See Maryland Planning and Zoning Law Study Com-
mission, Final Report: Legislative Recommendations (1969) (the
“Final Study Commission Report”), Appendix A at 26. The Study
Commission believed that the separation of the two functions led
to the “fragmentation” of, and lack of elective accountability in,
the planning process. Interim Study Commission Report at 13.
Because the comprehensive plans were adopted by unelected
planning commissions, they “lack[ed] legal sufficiency” and were
“all too often . . . ignore[d]” by local governments. Final Study
Commission Report at 2, see also id., Appendix A at 26 (the
comprehensive plan “lacks any significant legal weight” if not
adopted by the legislative body). Accordingly, the Study
Commission expressed the view that “the planning process should
be organized in such a way that it gives elected officials
responsibility for the course and character of development.”10
Interim Study Commission Report at 2; see also id. at 13, 90.

10
While the Study Commission understood that the purpose of
having a separate planning commission prepare the comprehensive plan
was to take the planning function “out of politics,” it concluded that
this had led to “a failure in the coordination of planning for public
facilities, a lack of success in effective land use planning, [and] unclear
lines of authority and responsibility for development decisions.”
Interim Study Commission Report at 12-13. The Study Commission
Gen. 152] 165

Among its numerous recommendations, the Study
Commission proposed making comprehensive planning part of
the political process by giving the local legislative body the
authority to adopt the comprehensive plan. Final Study Com-
mission Report at 2, Appendix A at 26. By “officially accepting
the plan, the legislators [would] accept its ideals and goals as the
correct guidelines” for the community and give the plan “an
increased status in the eyes of the law.” Id., Appendix A at 26.
In 1970, the General Assembly substantially revised and re-
numbered Article 66B, and in doing so enacted many of the
revisions proposed by the Commission. See 1970 Md. Laws, ch.
672. The legislation divested the planning commission of the
power to adopt the comprehensive plan and, instead, gave that
power to the legislative body. Id. at 1891, 1894, 1895-96. To
implement this change, the General Assembly amended and re-
codified former Article 66B, § 17 as Article 66B, § 3.07 such that
the planning commission would no longer “adopt” the plan but
“recommend adoption” of the plan. Id. at 1894. The new Article
66B, § 3.07, however, kept substantially intact the three options
available to the planning commission: It could recommend
adoption of (i) “the plan as a whole,” (ii) “successive parts of the
plan . . . corresponding to major geographical sections or
divisions of the jurisdiction,” or (iii) “any amendment or
extension thereof or addition thereto.” Id.
Regarding adoption of the plan by the legislative body, the
General Assembly amended and re-codified former Article 66B,
§ 18 as Article 66B, § 3.08, and added a new provision:
Adoption of the Plan – The local legislative
body shall adopt the plan as a whole or for
one or more major geographic sections or
divisions of the jurisdiction, and further shall
adopt any amendment or extension thereof or
addition thereto.
1970 Md. Laws, ch. 672 at 1895-96. The General Assembly,
however, did not adopt all the revisions proposed by the

further concluded that the local legislative body, more so than the
planning commission, had the tools and responsibility to obtain through
the elective process “a reading on community values” that would
enable it to protect the “quality of the human environment.” Id. at 13.
166 [99 Op. Att’y

Commission. Of significance here, the Study Commission had
recommended adding the following language to the Article 66B,
§ 3.08 adoption provision:
If the local legislative body desires to amend
the plan without the approval of the planning
commission, the local legislative body shall
hold a public hearing on said amendment
before any such action is taken.
Final Study Commission Report, Appendix A, at 26. The bill as
introduced to the General Assembly in 1970 included that
language, word-for-word,11 but it was later struck from the bill.
For our purposes, the General Assembly’s decision to reject this
language indicates that it did not intend for the legislative body to
be able to change a plan prepared by the planning commission.
Instead, the General Assembly adopted only the portion of the
Study Commission’s recommendation that proposed giving the
legislative body the authority to “accept” the planning
commission’s plan as a way of providing legal weight to the
plan.12

11
As introduced, the full Article 66B, § 3.08 provision read:
The local legislative body shall adopt the plan as
a whole or parts thereof and further, shall adopt
any amendment or extension thereof or addition
thereto. If the local legislative body desires to
amend the plan without the approval of the
planning commission, the local legislative body
shall hold a public hearing on said amendment
before any such action is taken.
1970 Md. Laws, ch. 672, at 1895 (emphasis added).
12
One might read the offered but rejected language to mean that the
legislative body had the authority to “amend the plan without the
approval of the planning commission,” but that if it chose to exercise
that authority, it would first have to hold a public hearing on the
amendment. However, if read this way, one would also have to
conclude that the General Assembly, in rejecting the language,
determined that it would be unnecessary for the legislative body to seek
public input prior to changing a plan as approved by the planning
commission. Given the extensive public involvement in the plan
development process before the planning commission, we think it
unlikely that the General Assembly would have authorized a local
legislative body to substantively alter the commission’s proposal
without any public input whatsoever.
Gen. 152] 167

3. 2000 Amendments Relating to Frederick County
In 2000, the General Assembly specifically and exclusively
granted to the Frederick County Board of Commissioners the
authority to “overrule an action of the Frederick County planning
commission,” including the planning commission’s approval of a
comprehensive plan. See 2000 Md. Laws, ch. 427 at 2385 (Art.
66B § 14.06, subsequently re-codified with non-substantive
changes at LU § 9-1002). We find two aspects of this legislation
noteworthy. First, the legislation would not have been necessary
if § 3-205 had already conferred on a local legislative body the
power to amend the plan recommended by the planning
commission. Cardinal rules of statutory construction caution
against an interpretation that renders such statutory exceptions
unnecessary. See DeBusk v. Johns Hopkins Hosp., 342 Md. 432,
445 (1996).
Second, the legislation’s use of the term “overrule” in this
provision, but not § 3-205, seems significant. It demonstrates that
the Legislature evidently knows how to authorize a local
legislative body to take action contrary to the planning
commission’s recommendation, but it chose not to do so in § 3-
205(d).13 Cf. Dutta v. State Farm Insur. Co., 363 Md. 540, 552
(2001) (citing exemption for workers compensation benefits as
evidence that the Legislature “knows how” to create exemptions
but had “not elected to do so” for HMO benefits). These
considerations further suggest that the General Assembly did not
intend § 3-205 to grant local legislative bodies the authority to
revise the planning commission’s decision to approve a
comprehensive plan.

13
The term “overrule” also appears in § 3-205(c)(3), regarding
approvals for the construction of, among other things, certain streets,
parks, open spaces, and public buildings. The planning commission
has the authority to approve the “location, character, and extent of the
development as consistent with the [comprehensive] plan,” but the
legislative body “may overrule the decision of the planning
commission” by a two-thirds vote. § 3-205(b), (c)(3) (emphasis
added).
168 [99 Op. Att’y

4. The Smart and Sustainable Growth Act of 2009
The final piece of legislative history we evaluate is the
enactment of the Smart and Sustainable Growth Act of 2009.
Prior to 2009, Art. 66B § 3.01(a) authorized, but did not require,
the adoption of a comprehensive plan: “A local jurisdiction may
enact, adopt, amend, and execute a plan as provided in this article
and create a planning commission . . . .” 2009 Md. Laws, ch. 181
at 988. Moreover, comprehensive plans were considered
“advisory, guides only, and not normally mandatory insofar as
rezonings, special exceptions, conditional uses and the like are
concerned.” Trail v. Terrapin Run, LLC, 403 Md. 523, 535
(2008).
In response, the General Assembly enhanced the status of
comprehensive plans in two ways. First, it made the adoption of a
comprehensive plan mandatory by amending Art. 66B § 3.01(a)
to substitute the word “shall” for “may.” See 2009 Md. Laws, ch.
181 at 988. Second, the General Assembly expressly overturned
Terrapin Run and specified that local zoning laws and
development regulations, among other things, must “further, and
not be contrary to,” the comprehensive plan. 2009 Md. Laws, ch.
181, at 984 (§ 2); see id., § 3 (providing in the uncodified portion
of the Act that “this Act overturn[s] the Court of Appeals ruling in
David Trail et al. v. Terrapin Run LLC”).
In other respects as well, the enactment of the Smart and
Sustainable Growth Act of 2009 served to emphasize the
importance of the comprehensive plan and how it is prepared.
For example, in the Preamble to the Act, the General Assembly
stated that “[c]itizens invest countless hours in determining the
future direction of their jurisdiction through local comprehensive
plans” and “are best served if land use decisions are consistent
with locally adopted comprehensive plans.” 2009 Md. Laws, ch.
181 (Preamble). And in explaining its response to the Terrapin
Run decision, the Legislature emphasized “the importance of
making land use decisions that are consistent with the
comprehensive plan.” Id. The General Assembly then stated its
“intent . . . that comprehensive plans should be followed as
closely as possible while not being elevated to the status of an
ordinance and that deviations from the plan should be rare . . . .”
2009 Md. Laws, ch. 181 (Preamble).
We draw two principal conclusions from our review of the
relevant legislative history. First, dating to the adoption of the
Model Planning Act, the General Assembly charged the planning
commission with the often technical task of preparing a
Gen. 152] 169

jurisdiction’s comprehensive plan. Plan preparation must be
based upon a “careful[] and comprehensive[]” study of the
jurisdiction’s conditions and projections for growth, Model
Planning Act, § 7 (codified at LU § 3-201(a)(1)), and must be
completed by the planning commission only after extensive
consultation with public officials and other stakeholders. Id. § 10
(codified at LU § 3-201(d)). And once the plan is in place, it is
the commission’s responsibility to review the plan, id. § 6
(codified at LU § 3-301(a)), recommend programs to implement
the plan, id. § 10 (codified at LU § 3-302), and consult with other
agencies about “protecting and executing” the plan, id. § 10
(codified at LU § 3-201(d)(2)). From its inception, the planning
commission has been viewed as an independent and specialized
body formed specifically for these purposes. In contrast, § 3-
205(d) specifies no distinct role or responsibility for the
legislative body regarding technical review or development of the
plan; it only empowers the legislative body to “adopt” the plan.
Second, the Legislature provided for extensive public
involvement during the plan development process before the
planning commission, but not during the process by which the
local legislative body adopts the plan. Whereas the planning
commission must hold a public hearing on the plan, Model
Planning Act, § 8 (codified at LU § 3-203(b))), and consult with
citizens about the plan’s contents, id. § 10 (codified at LU § 3-
201(d)), the statute provides no opportunity for citizens to
comment on the plan once it is submitted to the legislative body
for adoption. We think it unlikely that the General Assembly
intended to give local legislative bodies the power to
substantively alter the plan without any public input into the
relative merits of the those alterations. Given that a local
jurisdiction’s authority in matters of planning and zoning is
limited as directed by State statute, we see little basis in the
statutory scheme for giving the legislative body’s authority to
“adopt” an expansive interpretation.
Accordingly, we conclude that § 3-205(d)(1) currently does
not authorize a legislative body to adopt substantive alterations or
amendments to a comprehensive plan as prepared and approved
by a planning commission. This does not mean that a local
legislative body must adopt the proposed plan “word for word and
comma for comma,” Opinion No. 92-010 (April 16, 1992), 1992
WL 674718 at *3 (unpublished); it may correct any clerical errors
and other non-substantive mistakes. But a legislative body may
not make even minor substantive changes without returning the
170 [99 Op. Att’y

plan to the commission for its recommendation. See § 3-205,
Revisor’s Note (indicating that, under current law, even “minor
changes” must be sent back to the commission). Although that
may prolong the process of adopting a comprehensive plan, it best
reflects the language and legislative history of the operable
provisions and ensures that the important decisions embodied
within the plan are agreed to by both the technical body and the
body that is accountable to the electorate.
III
Conclusion
Section 3-205(d)(1) of the Land Use Article does not grant
to the Mount Airy Town Council the authority to adopt material
changes to a comprehensive plan, or plan element, once the plan
or plan element has been prepared and approved by the Town’s
Planning Commission. Instead, a local legislative body’s authority
to influence the content of a plan or plan amendment is limited to
(i) voting not to adopt the plan or plan amendment as approved by
the planning commission and (ii) sending the plan back to the
planning commission with recommendations that it be revised.
Douglas F. Gansler
Attorney General of Maryland
Adam D. Snyder
Chief Counsel, Opinions & Advice
* Paul J. Cucuzzella, Assistant Attorney General, contributed
significantly to the preparation of this opinion.