Maryland Attorney General Opinion 98 OAG 060

60] [98 Op. Att’y

COUNTIES

CODE HOME RULE COUNTIES – POWER TO REGULATE THE
FORMATION OF HOMEOWNERS ASSOCIATIONS TO ENSURE
THEIR ABILITY TO MAINTAIN INFRASTRUCTURE AND
COMMON AREAS

August 8, 2013

The Honorable Candice Quinn Kelly, President
County Commissioners of Charles County

On behalf of the Board of Commissioners of Charles County
(the “County”), you have asked for our opinion on the County’s
power, as a code home rule county, to prospectively regulate the
creation of homeowners associations (“HOAs”) to ensure their
ability to maintain the common areas and facilities under their
control. The County has already enacted subdivision regulations
that generally require HOAs to be structured in such a way as to
ensure their ability to fulfill their maintenance obligations and that
authorize the County Commissioners to review the adequacy of
deed restrictions governing an HOA’s maintenance of common
open spaces. The County now wishes to regulate HOA bylaws
explicitly but is concerned that the Maryland Homeowners
Association Act (“HOA Act”)1 might limit its authority to do so.
The County also wishes to impose various financial conditions on
the developers of these communities.
You pose three questions:
1. Does Charles County, as a Code Home
Rule County created under Article XI-F of
the Maryland Constitution, have the power to
enact a public local law wherein the County
can require a developer to insert provisions
into the HOA governing documents created
for new developments?
2. Does § 11B-104(b) of the Real Property
Article prevent Charles County from
enacting such a public local law?

1
Md. Code Ann., Real Property (“RP”) §§ 11B-101 et seq. (2010
Repl. Vol., 2012 Supp.).
Gen. 60] 61

3. Can Charles County pass a public local
law that would require developers to agree to
certain financial terms that would be subject
to County Attorney office approval (e.g.,
requiring that developers increase reserve
funds and pay dues for unsold lots)?
In answer to your first question, we conclude that a code
county has the implied authority to enact such local HOA
governance measures as necessary to ensure that the county’s
stormwater and forest preservation programs meet the
maintenance standards mandated by the State statutes applicable
to those programs. Accordingly, when a developer proposes that
the stormwater facilities and forest resources in an HOA
development will be maintained by an HOA, the County2 may
review the proposed HOA’s bylaws to assess whether the HOA
has been structured so as to be capable of performing its
maintenance functions. A code county’s authority to regulate
HOA governance may also be inferred from various State statutes
pertaining to land use and infrastructure within the county.
As to your second question, we conclude that the HOA Act
does not generally bar the County from regulating HOA
governance as a means of implementing its stormwater and other
land use powers. The County may not, however, relax the few
requirements that the HOA Act imposes on HOA governance.
Those requirements pertain to open meetings, access to records,
and fidelity insurance for HOA directors, among other things.
Further, the County’s measures must be consistent with the
provisions of the Corporations and Associations Article
applicable to HOAs that take the form of nonstock corporations.
See Md. Code Ann., Corporations and Associations §§ 5-201 et
seq.3 Section 5-206 of that Article is particularly relevant here, as
it specifies how a nonstock corporation may take an action if the
number of members at a meeting is insufficient to form a quorum.
The answer to your third question depends on the
circumstances. As a general proposition, it is our view that the
County may require a developer to pay HOA dues for unsold lots

2
The term “County,” as used in this opinion, broadly includes the
Planning Commission. We leave to the County Commissioners the
allocation of functions in accordance with the Land Use Article.
3
All references to the Corporations and Associations Article
(“Corporations Article” or “CA”) are to the 2007 Replacement Volume
of the Maryland Annotated Code, as updated in the 2012 supplement.
62] [98 Op. Att’y

within the development and to increase the size of the reserve
account funded by the developer, subject to limits: The measures
must relate to the purposes of the statutes under which the County
acts and must not effect an impermissible exaction or taking. The
HOA Act and Corporations Article would not preempt either
financial measure.4
I
Background
A. The Problem to be Addressed—HOAs that Cannot Perform
Their Maintenance Functions
1. Problem HOAs in Charles County
The County’s initial opinion request set forth the following
background:
Over the last few years, Charles County has
been receiving an increasing amount of
complaints from residents of communities
with Homeowners’ Associations (HOAs)
regarding the management of community
funds, enforcement of covenants, and the
general accountability of their Boards of
Directors and management companies. The
County has also been receiving an increasing
number of pleas from HOAs for assistance
with items that they are obligated to maintain
(e.g., storm water ponds, sidewalks, and
roads), but cannot because of their inability
to raise dues without cooperation from HOA
residents. After working with residents and
studying the issues, it has become clear that
the root of many of these issues stem from
poorly written governing documents.
Essentially, these documents are written by
developers, who have no incentive to ensure
sustainability of the HOA into the future.
Further, they are written under the
assumption that residents will comply with

4
Our conclusions do not apply to other forms of common-
ownership communities. The State laws on condominium associations
and cooperative housing corporations would preempt many local
measures on those entities’ governance.
Gen. 60] 63

the requirements, and that residents will be
active in their community by attending
meetings. Instead, HOA Boards complain
that resident cooperation is very slim, which
prevents them from getting anything done,
usually due to quorum requirements that are
nearly impossible to meet, and the inability to
substantially raise dues without a quorum.
* * *
Charles County has determined that it would
be in the best interests of our residents if the
County took a more active role in the
development of HOA governing documents.
As the Office of the County Attorney stated
in a subsequent letter, the county wishes to
“place safeguards in the HOA governing
documents (to make sure the HOA is set up
to be self-sustaining) and to have developers
preemptively agree to help fix unexpected
financial difficulties that arise.” The letter
states that “[t]he global issue is that several
Charles County homeowners’ associations
are unable to maintain their public facilities
because they simply lack the required
resources.”
Charles County has had trouble for over a decade with
poorly-maintained stormwater management facilities in HOA
developments. Its 2006 Comprehensive Plan explains:
The lack of maintenance of stormwater
management facilities in particular is of
concern to the County especially in
watersheds in the development district that
drain to impaired waters such as
Mattawoman Creek, the Port Tobacco, and
Zekiah Swamp Run. Many facilities are in
disrepair and need various levels of
restoration and/or maintenance.
In most cases the maintenance burden has
fallen on private property owners, often a
homeowners’ association. In 2001, a Charles
County Homeowners’ Association Task
Force reported that in many cases these
64] [98 Op. Att’y

property owners are responsible for facilities
that benefit other private or public users, yet
they have no practical recourse to collect a
proportionate share of the maintenance
expense from these other parties.
Dealing with these issues involves a
somewhat “gray” area between public and
private ownership, interests, and rights of
access, but this area needs to be resolved to
meet public health, safety, and natural
resource objectives.
Charles County Comprehensive Plan 6-28 (2006). The 2001
Task Force recommended, among other things, “[l]egislative
revisions to authorize the County to undertake maintenance and
repair of facilities serving more than one property, including
retrofits to critical non-functioning facilities.” Id. at 6-29.
2. Problem HOAs Elsewhere
The HOA governance and maintenance problems noted by
Charles County are not uncommon, either in Maryland or
nationally. In 2005, the General Assembly enacted legislation
that established the Task Force on Common Ownership
Communities and required it to address, among other things,
“issues relating to the collection of assessments.” 2005 Md.
Laws, ch. 469; see also Task Force on Common Ownership
Communities, Final Report 8 (2006). The Task Force remarked
that “[t]he requirement of unanimous or near unanimous consent”
for changing governing documents “has proven burdensome” and
recommended that the requirement be addressed legislatively. Id.
at 21. In 2008, the General Assembly enacted RP § 11B-116,
which allows HOAs to amend their governing document “by the
affirmative vote of lot owners having at least two-thirds of the
votes in the development,” or by a lower percentage if the
governing document so permits. 2008 Md. Laws, chs. 144, § 2
and 145, § 2.
The problems occasioned by malfunctioning HOAs, and
poorly-maintained common areas, continue to pose challenges for
local governments. In 2011, the Cecil County Planning
Commission appointed a Subcommittee on Homeowners
Associations to address, among other things, “future financial
concerns for the County in fixing and/or maintaining Stormwater
problems with both current ‘inactive’ HOAs and new
developments with HOAs . . . .” Cecil County Planning
Gen. 60] 65

Commission, Homeowners Associations and Common Open
Space (Stormwater Management) Study 3 (December 19, 2011).
According to the study, the Cecil County Planning Commission
had become aware of “the increasing number of ineffective or
simply non-functioning HOA’s” and, “[i]n particular,” was “very
concerned about the impact of unmaintained Stormwater
Management facilities within the Common Open Space
designation areas.” Id. at 4. The study stated “a pressing need to
keep in mind that there are a significant number of ‘inactive’
associations (approximately 150),” id. at 5, and expressed the
Planning Commission’s wish to “be proactive in bringing our
Stormwater Management facilities up to code.” Id. at 4.
Nationally, as in Maryland, HOA failures have led to
concerns about the maintenance of HOA communities and
deterioration of the housing stock. The problems caused by low
homeowner participation in HOA governance5 have been
exacerbated by the mortgage foreclosure crisis, which, in many
places, has resulted in unusually high numbers of unoccupied
houses and delays in foreclosure proceedings and subsequent re-
occupancy. One commentator gave this view of the effect of the
mortgage crisis on common-interest communities (“CICs”),
including HOAs:
In the context of today’s lengthy mortgage
foreclosure timelines, neighbors in CICs have
become truly financially interdependent, and
the failure of some owners to pay their fair
share of common costs requires a greater
financial contribution by the others. During
the months or years that mortgage
foreclosure on a unit is threatened or
pending, the association still must pay for
upkeep, utilities and necessary repairs; its
only source of revenue is increased
assessment payments by those owners who
are still able to pay. . . .
* * *

5
For a discussion of the possible causes of low participation in
homeowner association governance, see David C. Drewes, Note:
Putting the “Community” Back In Common Interest Communities: A
Proposal For Participation-Enhancing Procedural Review, 101
Colum. L. Rev. 314, 334-38 (2001).
66] [98 Op. Att’y

If neighbors refuse to privately fund
deficiencies, lack of association funding for
maintenance, insurance, and management of
common property will eventually lead to a
deterioration of the housing stock.
Andrea J. Boyack, Community Collateral Damage: A Question of
Priorities, 43 Loy. U. Chi. L.J. 53, 61-62 (2011).
3. The Effect of Failing HOAs on Local Government
Budgets
Commentators have also remarked on the effect of failing
HOAs on local government budgets. Although common
ownership of a development’s facilities by its homeowners is not
new, the practice proliferated throughout the last part of the
2000s, when some local governments viewed HOA developments
as a way to increase their tax bases without funding the
installation and maintenance of the infrastructure needed to serve
the new housing. See, e.g., Brian J. Fleming, Regulation of
Political Signs in Private Homeowner Associations: A New
Approach, 59 Vand. L. Rev. 571, 578 (2006) (describing the
growth of HOA ownership of infrastructure over “the last several
decades”); Daniel P. Selmi, The Contract Transformation in Land
Use Regulation, 63 Stan. Law Rev. 591, 604-06 (2011)
(attributing the assignment of infrastructure costs to developers to
the political difficulties of raising taxes); James L. Winokur,
Critical Assessment: The Financial Role of Community
Associations, 38 Santa Clara L. Rev. 1135, 1139 (1998) (referring
to the community association model as “a major vehicle for
shifting responsibilities previously associated with government
agencies to the private sector”).
This shifting of infrastructure costs and functions from local
governments to HOAs—sometimes referred to as “load
shedding,” see Robert J. Dilger, Neighborhood Politics:
Residential Community Associations in American Governance 87-
103 (1992)—has given rise to much discussion on whether to
characterize HOAs as “quasi-government” entities. See, e.g.,
David J. Kennedy, Residential Associations as State Actors:
Regulating the Impact of Gated Communities on Nonmembers,
105 Yale L.J. 761, 778 (1995) (remarking on HOAs’
“interdependent relationships with local governments”); see also
Pines Point Marina v. Rehak, 406 Md. 613, 635 (2008) (in
discussing common-interest communities, stating, “‘The
association is, in essence, a private government.’”) (quoting
Patrick J. Rohan & Melvin A. Reskin, Real Estate Transactions:
Gen. 60] 67

Condominium Law and Practice § 1.06 (2008)). Styled
differently as a “privatization” of government functions, HOAs
have also been characterized as a means by which homeowners
can diminish the role of government in their lives. See Dilger,
supra, at 87-88; Robert H. Nelson Privatizing the Neighborhood:
A Proposal to Replace Zoning with Private Collective Property
Rights to Existing Neighborhoods, 7 Geo. Mason L. Rev. 827,
852-56 (1999).
Either way, the assumption has been that the financial load
“shed” by a local government when it approves a residential HOA
subdivision will be borne by the developer in the first instance
and then by the members of the HOA. The difficulty comes when
that assumption proves to have been flawed, and the local
government must either maintain privately-owned facilities that
were never subject to its overall planning and budgeting process
for public infrastructure or else address the effects of the
deterioration of those facilities. It is our understanding that the
objectives of the County’s proposed measures are to deter the
deterioration of HOA-owned communities and to increase the
likelihood that, for future HOA subdivisions, the financial load of
HOA facility maintenance will remain with the developer and
HOA members.
B. The Legal Authorities that Govern HOAs: The HOA Act,
the Corporations Article, and the County Subdivision
Regulations
1. The Homeowners Association Act
The HOA Act was originally enacted in 1987 as a consumer
protection measure for the benefit of purchasers and potential
purchasers of residential lots in certain types of developments.
Specifically, the Act applies to developments that contain twelve
or more lots and that are governed by an HOA with the authority
to levy mandatory fees for services such as the maintenance of
common areas. See RP §§ 11B-101(d), (i), 11B-102(d); see also
72 Opinions of the Attorney General 158, 160 (1987) (recounting
the history of the Act). As described by the commission that
recommended the measure, the legislation had three basic
purposes: “to provide consumers with adequate disclosure about
the homeowners association in which they will become members,
to provide basic warranties on common areas in the homeowners
association, and to provide fundamental provisions governing the
operation of homeowners associations.” Final Report – 1985
Legislative Session, Governor’s Commission on Condominiums,
Cooperatives and Homeowners Associations, at 9.
68] [98 Op. Att’y

The Act now comprises thirty-three sections that mostly fall
into one or more of the three categories addressed by the original
enactment: disclosures, warranties, and fundamental operations.
It also contains a section that addresses the scope of a local
government’s powers on the subjects addressed by the Act. The
disclosure, fundamental operations, and local government
provisions bear on your questions; the warranty provisions do not.
Adequate Disclosure Provisions
The “adequate disclosure” provisions of the Act require
sellers of lots in a residential development that is subject to fees
and restrictions set by a homeowners association to disclose to
buyers all governing documents “to which the purchaser shall
become obligated,” RP § 11B-105(b)(6)(i), including the
declaration that creates the obligation. See RP § 11B-101(d)
(defining “declaration” as the recorded instrument that creates the
HOA’s authority to impose mandatory fees for services “or
otherwise” for the benefit of the lots, common areas, or owners or
occupants of lots). The developer’s disclosures to a consumer
must include information such as the association bylaws, fees, and
responsibility for common-area maintenance, RP § 11B-
105(b)(6)-(9), as well as “[a] brief description of zoning and other
land use requirements affecting the development . . . .” RP
§ 11B-105(b)(10).6 The Act establishes, in each circuit court, a
“depository” into which each HOA in that county must deposit
many of the disclosures required by law. See RP § 11B-113(a),
(c). The object of the disclosure requirements is to ensure that a
buyer is provided with “the facts that will allow the buyer to make
a rational judgment about whether to contract for the particular
house.” 72 Opinions of the Attorney General at 161.
Fundamental Operations Provisions
The “fundamental operations” provisions of the Act address
some, but not all, aspects of the governance and management of
HOAs. The voting participation provisions address only three
discrete topics: changes to bylaws and other governing
documents, the prohibition of family child care and “no-impact
home-based business” uses, and the removal of discriminatory
covenants from a governing document. RP §§ 11B-116(b), 11B-
111.1(d), and 11B-113.3, respectively. Other governance

6
Similar disclosure requirements apply to the resale of a lot subject
to the Act, RP § 11-106, and to the sale of a non-residential lot subject
to the Act. RP § 11B-107.
Gen. 60] 69

provisions pertain to open meetings and records, RP §§ 11B-111,
11B-112, and 11B-113.1; fidelity insurance, RP § 11B-111.6; the
HOA board’s submission of a proposed budget to the lot owners
for their approval, or the approval of any other body to which the
HOA has delegated that authority, RP § 11B-112.2(d); late
charges for dues assessments, RP § 11B-112.1; and candidate or
ballot question signs. RP § 11B-111.2. The HOA Act also
provides for the resolution of disputes between homeowners and
HOAs, RP § 11B-104(c); liens for unpaid assessments, RP § 11B-
117; and a mechanism by which three members of an HOA may
petition the circuit court for the appointment of a receiver to
manage the affairs of the association when, after notice, the HOA
“fails to fill vacancies on the governing body sufficient to
constitute a quorum in accordance with the bylaws . . . .” RP
§ 11B-111.5.7
Provisions on Local Government Powers
Two sections of the Act specify subjects on which local
governments may and may not legislate. RP § 11B-104, the
section about which you ask, sets forth the Act’s effect on local
land use laws. As relevant here, it provides:
(a) The provisions of all laws, ordinances,
and regulations concerning building codes or
zoning shall have full force and effect to the
extent that they apply to a development and
shall be construed and applied with reference
to the overall nature and use of the property
without regard to whether the property is part
of a development.
(b) A local government may not enact any
law, ordinance, or regulation which would:
(1) Impose a burden or restriction on
property which is part of a development
because it is part of a development;

7
For an example of the application of the Maryland Contract Lien
Act, RP §§ 14-201 et seq., to unpaid HOA assessments, see Monmouth
Meadows Homeowners Association v. Hamilton, 416 Md. 325 (2010)
(addressing the determination of attorneys’ fees to be awarded in
Contract Lien Act actions brought by HOAs to collect assessments
from property owners).
70] [98 Op. Att’y

(2) Require that additional disclosures
relating to the development be made to
purchasers of lots within the development,
other than the disclosures required by § 11B-
105, § 11B-106, or § 11B-107 of this title;
(3) Provide that the disclosures required by
§ 11B-105, § 11B-106, or § 11B-107 of this
title be registered or otherwise subject to the
approval of any governmental agency; [or]
* * *
(6) Expand the open meeting requirements
of § 11B-111 of this title or open record
requirements of § 11B-112 of this title.
Additionally, RP § 11B-115(d) provides that “[a] county or
municipal corporation may adopt a law, ordinance, or regulation
for the protection of a consumer to the extent and in the manner
provided for under § 13-103 of the Commercial Law Article.”
Section 13-103, which is part of the Maryland Consumer
Protection Act (“CPA”), provides that the CPA “is intended to
provide minimum standards for the protection of consumers in the
State,” Md. Code Ann., Com. Law (“CL”) § 13-103(a) (2005
Repl. Vol.), and that “[a] county, . . . municipality or agency of
either may adopt, within the scope of its authority, more stringent
provisions not inconsistent with the provisions of this title.” CL
§ 13-103(b).
2. Corporations Article Provisions Applicable to
HOAs Organized as Nonstock Corporations
The provisions of the Corporations Article applicable to
nonstock corporations also bear on the issues you raise. As
reflected in the HOA Act, a “homeowners association” may take
the form of “an incorporated or unincorporated association.” RP
§ 11B-101(i) (defining “homeowners association”). Many HOAs
take the form of nonstock corporations and are thus subject to
various governance provisions in the Corporations Article
applicable to such corporations. See CA §§ 5-201 et seq.
(containing provisions specific to nonstock corporations); § 5-201
(providing generally that “[t]he provisions of the Maryland
General Corporation Law apply to nonstock corporations” unless
the context or more specific provisions in the Article provide
Gen. 60] 71

otherwise).8 Under CA § 1-102(c), the provisions of the
Corporations Article are “in addition to and not in substitution of
any other requirements of law relating to any particular . . . class
of corporation.” When the general provisions of the Corporations
Article conflict with a State law specific to a particular class of
corporations, the specific law applies. CA § 1-102(c), (d). In
sum, the Corporations Article provisions applicable to nonstock
corporations supplement the HOA Act in many cases, and those
provisions may also preempt local measures.
3. The County Subdivision Regulations
Two of the County’s subdivision regulations set criteria for
the approval of subdivision applications that propose to establish
an HOA to maintain common areas and improvements not
accepted for County ownership. Charles County Code (“County
Code”) § 278-63 requires the developer to establish the HOA
before the final approval of the subdivision plat. County Code
§ 278-63A(1). It further provides:
A. The developer shall certify, pending the
acceptance of that certification by the
Planning Commission during the approval of
the final subdivision plat, that the common
open space and improvements not dedicated
and accepted for public ownership will be
maintained and cared for. The developer
shall also certify that an organization for the
ownership, maintenance and preservation of
open space has been established in
conformance with the following standards
and procedures:
* * *
(2) The financial and organizational
structures, rules of membership and methods
of cost assessment of the organization shall
be devised to ensure the successful
fulfillment of the maintenance, preservation
and improvement responsibilities of the
organization.
8
For applications of the Corporations Article to homeowners
associations, see Pines Point Marina, 406 Md. 613, and 76 Opinions of
the Attorney General 105 (1991) (discussing the applicability of the
Corporations Article to an incorporated community association;
concluding that a prohibition on proxies must be done by charter).
72] [98 Op. Att’y

* * *
(4) Areas set aside to meet the open space
requirements hereof shall be adequately
described. Instruments in the form of deed
restrictions and/or covenant[s] shall be
provided to ensure the purpose for which the
open space is provided will be achieved.
Compliance with the above shall be
demonstrated to the Department of Planning
and Growth Management and the County
Attorney’s Office prior to recordation among
the Land Records of Charles County.
County Code § 278-45C provides:
Where the subdivision contains sewers,
sewage treatment plants, water supply
systems, park areas or other physical facil-
ities necessary or desirable for the welfare of
the area and which are of common use or
benefit and which are of such character that
the county or other public agency does not
desire to maintain, then provision shall be
made by legal arrangements incorporated
into the deed restrictions and which are
acceptable to the County Commissioners for
the proper and continuous maintenance and
supervision of such facilities by the lot
owners in the subdivision.
II
Analysis
A. The Powers of a Code County, Generally, to Enact “Local
Laws”
Maryland counties and municipalities “are but local
divisions of the State.” Rockville v. Randolph, 267 Md. 56, 62
(1972). They therefore possess only the powers that have been
granted to them by the State, either through the Maryland
Constitution or, within the constraints imposed by the
Constitution, the enactments of the General Assembly. See Kent
Island Def. League, LLC v. Queen Anne’s County Bd. of
Elections, 145 Md. App. 684, 689 (2002). Those powers may be
supplemented through the judicially-created doctrine of implied
authority, see Barlow v. Friendship Heights Citizens’ Comm., 276
Gen. 60] 73

Md. 89, 95 (1975), or limited through the doctrine of preemption.
Coalition for Open Doors v. Annapolis Lodge No. 622, 333 Md.
359, 379 (1994).
As relevant here, the counties’ chief constitutional powers
include choosing which type of government to adopt—Charles
County chose the “code home rule” method in 2002—and then
enacting such “local laws” as fall within the powers that the
General Assembly has granted to local governments of that type.
See Md. Const. art. XI-F (providing home rule for code
counties)9; see also Miller v. Pinto, 305 Md. 396, 404 n.5 (1986)
(“In a code county, . . . once the citizens of the county have voted
to adopt code home rule status the authority of the local
legislative body is prescribed by state statute.”). The County’s
statutorily-granted powers appear both in Maryland Code Article
25B,10 which lists various types of authority granted to code
counties, and other enabling statutes scattered throughout the
Maryland Code.11 The powers that have been expressly granted
9
The “local law” limitation imposed by Md. Const. art. XI-F, § 3
and Article 25B poses little difficulty here. Your letter indicates that
the County seeks only to regulate bylaws, dues assessments, and
reserve funds for HOA communities within the County, and the Court
of Appeals has held that ordinances bearing on the use and ownership
of land within a county are “local” in nature. See, e.g., Steuart
Petroleum Co. v. Bd. of County Comm’rs, 276 Md. 435, 446 (1975)
(“[N]othing could be more local in scope than legislation affecting land
use in a single county, irrespective of the fact that it could be contended
that adjacent counties were indirectly affected.”); Fish Mkt. Nominee
Corp. v. G.A.A., Inc., 337 Md. 1, 12 (1994) (“The fact that Baltimore
City’s redemption interest rate ordinance affects a non-resident owner
or purchaser of real estate does not make the ordinance general in
scope. It applies to tax sales of property only within Baltimore City
and is, therefore, local.”). For a review of the cases on what constitutes
a “local law,” see Kent Island Def. League, 145 Md. App. at 693-94.
10
Md. Ann. Code art. 25B (2011 Repl. Vol., 2012 Supp.).
Effective October 1, 2013, Article 25B, among other provisions on
local government powers, will be recodified into the new Local
Government Article. 2013 Md. Laws, ch. 119.
11
For a thorough history of Article XI-F, see 62 Opinions of the
Attorney General 275 (1977). There, then-Attorney General Burch
identified a “fundamental constitutional ambiguity” in Article XI-F as
to the scope of a code county’s authority, id. at 299, and tentatively
concluded that Article XI-F probably granted them the power to
“legislate on all matters of local concern.” Id. at 290. Subsequent
cases, however, have suggested that the powers of code counties are
more limited. See Miller v. Pinto, 305 Md. at 404; see also East Star,
LLC v. County Comm’rs of Queen Anne’s County, 203 Md. App. 477,
74] [98 Op. Att’y

to the counties are supplemented by the implied authority to
exercise “such powers as are necessary in the performance of a
duty imposed or the accomplishment of a stated purpose . . . .”
Barlow, 276 Md. at 95.
The counties’ powers—express and implied—are limited by
the doctrine of preemption. Under that three-part doctrine,
“legislative acts by a local jurisdiction that conflict with a public
general law or that deal with an area in which the General
Assembly has occupied the entire field or which deal with an area
that the General Assembly has expressly reserved to itself, are
invalid.” Kent Island Def. League, 145 Md. App. at 689 (citing
County Council for Montgomery County v. Montgomery Ass’n,
274 Md. 52, 59 (1975)).
Not all State legislative enactments have preemptive effect;
the General Assembly sometimes legislates in a field without
occupying it or reserving exclusive power over it. In that event, a
local jurisdiction may exercise its powers concurrently if its
enactments merely supplement the State law. See County Council
for Montgomery County, 274 Md. at 59; see also Coalition for
Open Doors, 333 Md. at 380 (“When a state law simply excludes
a particular activity from its coverage, our cases have not
attributed to the General Assembly an intent to preempt local
legislation regulating or prohibiting that activity. Instead, in such
situations supplementary local legislation has not been deemed to
be in conflict with and preempted by the state statute.”).
We will look to the Maryland Code for express or implied
grants of authority to the code counties to enact laws such as
those proposed by the County and then to the HOA Act and the
Corporations Article for express or implied preemptions of such
grants.

492 n.13 (2012) (noting that the General Assembly withheld the broad
police power from code counties but granted them the authority to
exercise it in discrete areas).
Gen. 60] 75

B. Whether the State has Granted to a Code County the
Authority to Condition the Approval of an HOA Project on
the County’s Approval of the HOA Bylaw
The HOA Act itself does not expressly authorize local
governments to regulate the contents of HOA bylaws as a means
of preventing HOA failures. Nonetheless, we think that several
other State statutes provide the County with permitting and other
powers that impliedly include the authority, and sometimes the
duty, to require that new HOAs be structured in ways that will
enable them to continuously fulfill their maintenance obligations.
We begin with two State environmental statutes that require
counties to evaluate, at the time of permitting, the likelihood that
certain commonly-owned facilities and resources will be
maintained. We then survey the land use statutes that authorize
the counties to perform such an evaluation. Because these
statutes, in our view, provide the County with sufficient
authorization to address the problems you discuss, we do not
reach the question of whether the County may additionally enact
consumer protection measures.
1. The Stormwater Management Act of 2007
The Stormwater Management Act was enacted to “reduce as
nearly as possible the adverse effects of stormwater runoff and to
safeguard life, limb, property, and public welfare.” Md. Code
Ann., Envir. (“EN”) § 4-201 (2007 Repl. Vol., 2012 Supp.). The
Stormwater Management Act itself does not specify how
stormwater is to be managed; instead, it requires counties to
establish and implement stormwater management programs
(“local programs”) in accordance with the rules and regulations
issued by the Department of the Environment (“MDE”). See EN
§ 4-202 (requiring counties to “adopt ordinances necessary to
implement a stormwater management program” and requiring
local programs to “meet the requirements established by [MDE]
under § 4-203”). The Stormwater Management Act, directly and
through MDE’s regulations, covers all stages of stormwater
management, from permitting through enforcement. EN §§ 4-
201–4-215; COMAR 26.17.02. As your questions relate to
prospective HOA developments, we do not address the
enforcement provisions of the Stormwater Management Act and
how they may be used to improve HOA maintenance of existing
facilities; we address only those permitting requirements relevant
to a newly-formed HOA’s ability to maintain its stormwater
management facilities.
76] [98 Op. Att’y

Under the Stormwater Management Act, each local program
must require that a person submit a stormwater management plan
to the appropriate local permitting authority, and secure approval
of that plan, before developing land for residential and certain
other uses. EN § 4-204(a).12 That is, a local government may not
issue building and grading permits to a developer of land subject
to the Stormwater Management Act unless the locally-designated
stormwater-permitting authority has approved the developer’s
plan. EN § 4-204(a) and (c); see also COMAR 26.17.02.05. One
of the permitting criteria set by the Stormwater Management Act
is the likelihood that the proposed stormwater practice will be
adequately maintained. Under EN § 4-203(b)(7), MDE must
adopt rules and regulations that, among other things, “[s]pecify
the minimum requirements for inspection and maintenance of
stormwater practices.” MDE has duly required by regulation that
the owner/developer “perform or cause to be performed
preventive maintenance of all completed [environmental site
design] treatment practices and structural stormwater
management measures to ensure proper functioning.” COMAR
26.17.02.11A. Moreover, local ordinances must contain that
requirement. Id.
MDE has also addressed maintenance requirements in its
Stormwater Design Manual, which is incorporated by reference
into COMAR 26.17.02.01-1B. See Md. Code Ann., State Gov’t
§ 7-207 (providing for incorporation by reference); see also 79
Opinions of the Attorney General 322 (1994) (“Maryland law
permits incorporation by reference” into COMAR and an
incorporated document “fully becomes a part of COMAR . . . .”);
73 Opinions of the Attorney General 3 (1988) (sediment and
erosion control handbook appropriately incorporated by reference
into COMAR). The Design Manual sets overall performance
standards “that must be met at development sites” and that “shall
be addressed at all sites where stormwater management is
required[.]” MDE, Maryland Stormwater Design Manual § 1.2 at
1.13 (2000, Supp. 1).13 Standard No. 9 requires that “[a]ll
stormwater management practices shall have an enforceable

12
For summaries of the Stormwater Management Act, see 96
Opinions of the Attorney General 61, 62-63 (2011), and 91 Opinions of
the Attorney General 152 (2006).
13
The Maryland Stormwater Design Manual, the Maryland Model
Stormwater Management Ordinance, and other stormwater-related
materials are available online through the “publications list” on the
MDE website, http://www.mde.state.md.us/programs/Water/Storm
waterManagementProgram.
Gen. 60] 77

operation and maintenance agreement to ensure the system
functions as designed.” Id. at 1.14. To that end, designers must
“[e]nsure that the BMP [best management practice] selected
meets specific performance criteria with respect to feasibility,
conveyance, pretreatment, treatment, landscaping and
maintenance.” Id., § 1.5 at 1.19. For example, Appendix A,
which addresses the landscaping of BMPs, instructs the designer
to “carefully consider the long-term vegetation management
strategy for the BMP, keeping in mind the ‘maintenance’ legacy
for the future owners. . . . Make sure the facility maintenance
agreement includes requirements to ensure vegetation cover in
perpetuity.” Id. at A-3. And, under Standard No. 5, structural
BMPs used for new development (e.g., stormwater ponds) must
remove certain percentages of suspended solids and phosphorus.
Id., § 1.2 at 1.13. The standard “presume[s] that a BMP complies
with this performance standard” if the BMP is sized, designed,
and constructed properly and “maintained regularly.” Id. These
performance standards make clear that a local permitting
authority may not approve the stormwater management practices
proposed for an HOA subdivision without first determining and
acknowledging the sufficiency of future maintenance plans.
MDE has prepared a Model Stormwater Management
Ordinance that offers guidance regarding the “minimum criteria”
for local stormwater management programs. MDE, Maryland
Model Stormwater Management Ordinance (June 2009, April
2010 Supp.). The Model Ordinance elaborates on the developer’s
maintenance obligations under the performance standards:
9.2 Maintenance Agreement
A. Prior to the issuance of any building
permit for which stormwater management is
required, (local agency) shall require the
applicant or owner to execute an inspection
and maintenance agreement binding on all
subsequent owners of land served by a
private stormwater management facility.
Such agreement shall provide for access to
the facility at reasonable times for regular
inspections by (local agency) or its
authorized representative to ensure that the
facility is maintained in proper working
condition to meet design standards.
* * *
78] [98 Op. Att’y

9.3 Maintenance Responsibility
A. The owner of a property that contains
private stormwater management facilities
installed pursuant to this Ordinance, or any
other person or agent in control of such
property, shall maintain in good condition
and promptly repair and restore all
[environmental site design] practices, grade
surfaces, walls, drains, dams and structures,
vegetation, erosion and sediment control
measures, and other protective devices in
perpetuity. Such repairs or restoration and
maintenance shall be in accordance with
previously approved or newly submitted
plans.
B. A maintenance schedule shall be
developed for the life of any structural
stormwater management facility or system of
[environmental site design] practices and
shall state the maintenance to be completed,
the time period for completion, and the
responsible party what will perform the
maintenance. This maintenance schedule
shall be printed on the approved stormwater
management plan.
Id. at 31-32. In sum, the Stormwater Management Act requires a
local permitting authority to determine whether the operation and
maintenance agreement and other maintenance arrangements
proposed by the developer are sufficient to assure the viability of
stormwater management “in perpetuity” for non-structural
stormwater practices, and “for the life” of any structural
stormwater management facility. Id.
In our opinion, an “enforceable operation and maintenance
agreement” for purposes of Standard No. 9 is an agreement with
an entity that is structured in a way that ensures the entity’s
continued ability to perform the agreed-upon obligations. We
thus interpret the Stormwater Management Act as authorizing the
County to withhold a permit until the applicant has demonstrated
that the proposed HOA will have that ability. The County’s
“approval” of a developer’s plan for the maintenance of an HOA
development, as the term “approval” is defined by MDE, means
that the County has “determine[d] and acknowledge[d] the
sufficiency of submitted materials to meet the requirements” set
Gen. 60] 79

by the maintenance standard and has not merely “received [them]
for review.” See MDE, Model Stormwater Management
Ordinance, at 2. Given the County’s stated belief that the chronic
failure of HOAs to maintain their stormwater management
practices is largely due to poorly-drafted bylaws, we think the
County has the implied power, and likely the duty, to address
those deficiencies in its stormwater program, subject to the limits
we discuss in Part C below.14
As a practical matter, the County’s regulation of HOA
governance for stormwater management purposes would likely
spill over to an HOA’s management of its other facilities; we
doubt that developers of HOA communities would establish one
method of governance for the purpose of stormwater management
and another for general governance issues. Nonetheless, in the
unlikely event that a new HOA subdivision would lack
stormwater facilities to maintain, we discuss other State laws that,
in our opinion, impliedly confer similar powers on local
governments.
2. The Forest Conservation Act
The Forest Conservation Act, like the Stormwater
Management Act, requires local governments that have planning
and zoning authority to develop a local program in accordance
with State standards. See Md. Code Ann., Nat. Res. (“NR”) § 5-
1603(a) (2012 Rep. Vol.); see also 77 Opinions of the Attorney
General 127 (1992) (discussing the Forest Conservation Act

14
St. Mary’s County, for example, has supplemented MDE’s
model ordinance language by requiring that the “Inspection and
Maintenance Agreement binding on all subsequent owners of land
served by the private stormwater facility . . . shall provide . . . for
regular or special assessments of property owners to ensure that the
facility is maintained in proper working condition . . . .” St. Mary’s
County Stormwater Management, Grading, Erosion, and Sediment
Control Ordinance § 3.14(1) (May 28, 2103). Because the
interpretation of Charles County’s laws is for the County in the first
instance, we have not examined whether Charles County’s various
stormwater ordinances already provide it with a mechanism for
addressing HOA governance, but we note that some may. See, e.g.,
Stormwater Management Ordinance § 9.6 (Aug. 1, 2010) (requiring
that stormwater management systems be “protected by public or private
easements or private inspection and maintenance agreements”); Storm
Drainage Ordinance § 13.0 (Aug. 1, 2010) (providing for the County’s
approval of maintenance agreements for on-site storm drainage
practices).
80] [98 Op. Att’y

mandates). When the Forest Conservation Act applies to a
project, the applicant must submit a forest stand delineation, and
then a forest conservation plan, to the local authority. NR §§ 5-
1602, 5-1604, 5-1605. The local authority may not approve the
applicant’s subdivision plan, and may not grant a grading or
sediment control permit for the project, until the forest
conservation plan has been approved. NR § 5-1608(b).
The Forest Conservation Act establishes the maintenance of
the resource as a permitting criterion. Among the items an
applicant must include in the proposed forest conservation plan is
“[a] binding 2-year management agreement that details how the
areas designated for afforestation or reforestation will be
maintained to ensure protection or satisfactory establishment
including: (i)[w]atering; and (ii) [r]einforcement planting
provisions if survival falls below required standards . . . .” NR
§ 5-1605(c)(9). The Forest Conservation Act also requires the
applicant to include “[a]ny other requirement established in
regulations adopted by the Department [of Natural Resources], or
imposed by a local authority.” NR § 5-1605(c)(10). One such
requirement is a bond to assure the performance of the two-year
agreement. See COMAR 08.19.05.01.
Although the Forest Conservation Act is less forceful and
less focused on long-range maintenance issues than the
Stormwater Management Act, we think the same results apply:
The legislative mandate to local governments to implement these
programs includes the implied authority (or duty) to approve only
those maintenance agreements that are reasonably capable of
performance of the two-year agreement or other requirements set
by DNR.
3. The Discretionary Powers Granted by Article 25A,
§ 5(T), (W), and (X), via Article 25B, § 13
Article 25B—by reference to provisions of Article 25A—
grants to code counties the authority to enact measures in
numerous areas, three of which are relevant to your questions
about the County’s authority to address the problem of poorly-
maintained facilities in HOA developments. See Art. 25B, § 13.15

15
Article 25B, § 13 grants to code counties 29 of the 32 categories
of enumerated “express powers” granted to charter counties by Article
25A, § 5. The Article 25A, § 5(S) power, described as the “broad
governing power, the so-called police power,” Waters Landing
Partnership v. Montgomery County, 337 Md. 15, 19 (1994), is among
Gen. 60] 81

First, Article 25A, § 5(T) authorizes code counties to
exercise police powers over streets and other facilities that might
be owned by an HOA. Under Article 25A, § 5(T), a code county
may:
enact local laws enabling the county council
to adopt from time to time . . . ordinances and
amendments thereof for the protection and
promotion of public safety, health, morals,
comfort and welfare, relating to any of the
following: the location, construction, repair,
and use of streets and highways; the disposal
of wastes; the control of problems of soil
erosion and of the preservation of the natural
topography in newly developed and other
areas; and the erection, construction, repair
and use of buildings and other structures . . . .
A code county’s § 5(T) powers extend to facilities that a
developer has not dedicated to a county and include the power to
condition the construction of those facilities on reasonable terms.
See County Council for Montgomery County v. Lee, 219 Md. 209,
215 (1959) (stating that a charter county’s power under Article
25A, § 5(T) over streets extended to the private street planned for
a subdivision and “carries with it the right to prescribe reasonable
terms and conditions upon which the permit would issue”); see
also 79 Opinions of the Attorney General 90, 93 (1994) (citing
Lee and concluding that Article 25A, § 5(T) authorized a county
to regulate construction of a road that the developer intended to
convey to an HOA). Here, we similarly conclude that Article
25A, § 5(T) gives code counties broad powers to enact laws
permitting the imposition of reasonable conditions designed to
assure the ability of an HOA to perform ongoing “repair” of the
HOA’s commonly-owned streets, buildings, and other structures.
Implied in this grant of power, like those reviewed above, is the
authority of a code county to deny a permit for a facility that is to
be assigned to an entity that, in the county’s experience, will
probably be unable to maintain it. Again, the County’s measures
must be consistent with the HOA Act and Corporations Article
provisions applicable to HOA governance, as discussed in Section
C below.

the powers withheld from code counties. See Art. 25B, § 13; see also
East Star, 203 Md. App. at 492 n.13. The General Assembly has
instead granted to code counties the authority to exercise police powers
in specific fields.
82] [98 Op. Att’y

Second, Article 25A, § 5(W) authorizes code counties to
“enact local laws providing for . . . the financing, construction and
maintenance of storm drainage projects, and the regulation of
storm drainage facilities.” That discretionary power has been
mostly, if not entirely, supplanted by the Stormwater
Management Act mandate, but it is worth noting for its
confirmation of a code county’s authority to enact laws
“providing for” maintenance.
Third, Article 25A, § 5(X) grants to code counties broad
police powers in the areas of “zoning and planning.” Charles
County, however, has chosen to adopt its land use ordinances
under the authority granted by Article 66B, now codified in the
Land Use Article. See County Code § 278-3. We will therefore
review the provisions in the Land Use Article that apply to non-
charter counties and municipalities in relation to the question
posed by the County.16
4. The Land Use Article Powers
The Land Use Article expresses “the policy of the State” that
“planning and zoning controls shall be implemented by local
government,” Md. Code Ann., Land Use (“LU”) § 4-101(a)(2),
and spells out the types of controls that local governments
variously may or must adopt and implement. As relevant here,
16
As Charles County did not choose Article 25A as the source of its
land use powers, we do not address the Land Use Article provisions
applicable only to charter counties. The Article 25A powers remain
available to Charles County, however, should it wish to adopt them.
See Miller, 305 Md. at 403 n.4 (observing that, even though a county
chooses Article 66B as the source of its land use powers, the
“permissive language” § 13 of Article 25B—“‘a county . . . may
exercise’ the powers provided by this section (emphasis added)”—
“leaves to the discretion of the local legislative body the choice as to
which, if any, of these powers will be vested in the board of appeals”).
However, the County’s designation of Article 66B as the source of its
land use powers has ramifications under the Land Use Article, which
differentiates between charter and non-charter counties for some
purposes and treats as charter counties those code counties that exercise
Article 25A land use powers. See Md. Code Ann., Land Use § 1-
402(b) (“[A] code county that chooses to exercise the powers relating
to land use stated in Article 25A of the Code shall be treated as a
charter county for purposes of § 1-401 of this subtitle.”); see also id.,
§ 1-401(b) (specifying the provisions applicable to charter counties).
For purposes of this opinion, we will refer to those code counties that
exercise Article 66B land use powers—like Charles County—as “non-
charter” counties.
Gen. 60] 83

the local governments’ planning and zoning authority includes
broad powers to execute various State-mandated goals through
planning mechanisms such as subdivision regulations and a more
specific power to provide for adequate public facilities. We begin
with the broad planning powers.
Planning Powers
The Land Use Article variously requires and allows counties
to exercise powers that bear on the County’s wish to further the
viability of new HOAs by regulating their bylaws. Those powers
are mostly to be exercised through the adoption of a com-
prehensive land use plan and regulations to implement that plan.
See Maryland-National Capital Park & Planning Comm’n v.
Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73, 87 (2009)
(“The county is charged with ensuring the implementation of the
comprehensive plan through zoning and other land use
regulations, including subdivision ordinances and regulations.”).
The Land Use Article contains numerous mandates as to the
contents of comprehensive plans. Several of those mandates are
relevant to the County’s stated concern that HOAs be structured
so as to be self-sustaining and capable of maintaining the
commonly-owned facilities. Under LU § 3-101, non-charter
counties must “enact, adopt, amend, and execute” a com-
prehensive plan that must contain the twelve “visions” specified
in LU § 1-201(1)-(12), see LU § 3-204(a), and serve as the
document through which the planning commission “shall
implement” those visions. LU § 1-201.17 Vision (1) states that “a
high quality of life is achieved through universal stewardship of
the land . . . resulting in sustainable communities and protection
of the environment.” LU § 1-201. Vision (9) states that “land and
water resources . . . are carefully managed to restore and maintain
healthy air and water, natural systems, and living resources,” and
Vision (10) states that “waterways, forests . . . [and] natural
systems . . . are conserved.” LU § 1-201(9), (10). The Land Use
Article further requires that the “implementation” of the visions
be “achieved through the adoption of applicable . . . subdivision
ordinances and regulations . . . .” LU § 3-303(b).
17
In the Preamble to the Smart and Sustainable Growth Act of
2009, the General Assembly 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 . . . .” Id. A local jurisdiction may give a plan the status
of an ordinance by adopting a law to that effect. HNS Development,
LLC v. People’s Counsel, 425 Md. 436, 457-58 (2011).
84] [98 Op. Att’y

The County has duly adopted a comprehensive plan. In
accordance with the requirements stated above, the 2006 Charles
County Comprehensive Plan (now being revised) states this
Growth Management Land Use Planning Policy:
Continue to implement regulations, including
the adequate public facilities ordinance, that
require that the costs of adequately servicing
proposed developments be clearly defined
and that require that the funds for meeting
and maintaining these developments are
provided without unrelated financial burden
on current residents or public agencies.
Charles County Comprehensive Plan, 3-2. The Plan also states
that a “[g]oal[] and [o]bjective[]” of its natural resources element
is to “[c]ontinue and improve programs and policies to assure the
functional maintenance of stormwater management systems.” Id.
at 8-2, 8-3. In light of the County’s experience that poorly drafted
quorum requirements and poor HOA management lead to the
deterioration of HOA-owned facilities and then to requests for
County assistance, we think that the County’s statutory obligation
to implement the environmental and sustainable communities
visions includes the authority to implement its Growth
Management Policy by enacting HOA governance and measures
that supplement the HOA Act.
It appears to us that the County has already adopted
regulations that enable it to review a proposed HOA’s governance
in the subdivision application process. See generally County
Code §§ 278-58 through 278-66. Specifically, § 278-63 provides
that the developer must certify that the HOA “shall be devised to
ensure the successful fulfillment of [its] maintenance,
preservation and improvement responsibilities . . . .” In a
November 8, 2012 letter to us, however, the County Attorney’s
Office opined that § 278-63 is insufficient because, as interpreted
by the County, it does not require a developer to submit bylaws
and other documents to the County for its review and approval.
In the absence of such review and approval, the County
Attorney’s Office reasoned, the developer’s certification that the
HOA will be able to fulfill its responsibilities “does not
necessarily make it so.”
We believe that County Code § 278-63, when read in the
context of State law, gives the County the authority to request and
examine HOA bylaws that bear on the criteria for subdivision
approvals. The Court of Appeals has instructed that the burden
Gen. 60] 85

lies with the developer “to establish facts necessary to obtain
approval for its proposed subdivision.” Grasslands Plantation,
Inc. v. Frizz-King Enters., 410 Md. 191, 230 (2009). In
determining whether a developer has carried its burden, the
County need not accept unquestioningly the developer’s
certification; as a general principle of administrative law, the
permitting agency’s “[f]indings of fact must be meaningful and
cannot simply repeat statutory criteria, broad conclusory
statements, or boilerplate resolutions.” Bucktail, LLC v. County
Council of Talbot County, 352 Md. 530, 553 (1999). The
County’s administration of § 278-63 thus could, and likely
should, include an examination of the bylaws and other facts
underlying a developer’s conclusory certification that the HOA
for a proposed development has been “devised to ensure [its]
fulfillment” of the HOA’s maintenance obligations. In short, the
County may require a developer to submit facts that establish the
viability of an HOA to which the developer proposes to assign the
responsibility for maintaining community infrastructure.
In our view, County Code § 278-45C also likely provides the
County with a mechanism by which to review and approve HOA
bylaws. That regulation requires developers to provide for “the
proper and continuous maintenance” of commonly-owned areas
“by legal arrangements incorporated into the deed restrictions
and . . . acceptable to the County Commissioners . . . .” The
County Attorney’s Office indicated to us that “deed restrictions
typically only control what a landowner can do with his property”
and are not a means of “alter[ing] the governance of [common
ownership communities] or the accountability of developers and
Boards of Directors.” We believe that, as a matter of State law,
minimum bylaw standards may be included in a deed as “deed
restrictions” so long as they impose a burden on ownership that
runs with the land. And, we see no reason why such restrictions,
properly worded, would not satisfy the necessary elements for
doing so. See, e.g., Charles County Comm’rs v. St. Charles
Assocs., 366 Md. 426, 448-50 (2001); Bright v. Lake Linganore
Ass’n, 104 Md. App. 394 (1995) (setting out the elements of
covenants that run with the land).
Adequate Public Facilities Ordinance (“APFO”) Powers
The adequate public facilities provisions of the Land Use
Article also provide code counties with the implied authority to
review a developer’s arrangements for the maintenance of
infrastructure, such as streets and stormwater facilities, proposed
for HOA ownership. Under LU § 7-101, a county “may enact,
and is encouraged to enact,” local laws “to facilitate orderly
86] [98 Op. Att’y

development and growth.” Those local laws may provide, among
other things, for “the planning, staging, or provision of adequate
public facilities,” and “alternative subdivision requirements that . .
. reduce infrastructure costs.” LU § 7-101(1), (7)(ii). The subtitle
expressly does not “limit a local jurisdiction’s authority to . . .
adopt other methods to . . . facilitate orderly development and
growth.” LU § 7-103.
As explained by the Court of Appeals, the adequacy of the
infrastructure needed to support a private development has an
impact on a local jurisdiction’s ability to plan for orderly growth:
How can a county effectively plan for capital
expenditures for roads, schools, sewers, and
water facilities if, without regard to
preexisting plans, a developer, as proposed
here, might place a settlement of 1,200 or
more people in the middle of a previously
undeveloped area, a settlement which would
overtax school facilities and which would
necessitate improvement of a road whose
reconstruction had not been contemplated
before 1990? Planning would be futile in
such situations.
In those instances the developer, not the
constituted authority of the county, is in
control of planning for the future of the
county. Surely, this was not contemplated by
the General Assembly when relative to the
master plan it repeatedly used the words “at
specified times as far into the future as is
reasonable” and then went on to mandate
approval of the master plan by the local
legislative body and to require the adoption
of subdivision regulations.
Bd. of County Comm’rs of Cecil County v. Gaster, 285 Md. 233,
248-49 (1979). Accordingly, developers may not impose
infrastructure construction and maintenance costs on the local
jurisdiction without the jurisdiction’s acceptance of the facility.
“[T]he purpose of requiring an acceptance by the local
government is to prevent a situation where a developer imposes
upon the municipality the responsibility for maintenance and
repair for an otherwise private facility merely by designating
unilaterally the improvement for public maintenance.” People’s
Gen. 60] 87

Counsel for Balt. County v. Surina, 400 Md. 662, 714 (2007)
(citing City of Annapolis v. Waterman, 357 Md. 484, 504 (2000)).
The same principle supports the County’s ability to review
the substance of the developer’s HOA arrangements. If the
County did not have that ability, the developer would effectively
control, through the sufficiency of those arrangements, whether
the County ultimately becomes responsible for the maintenance of
unplanned-for infrastructure. This is precisely the outcome that
the Court of Appeals warned against in Gaster and Surina. We
believe it unlikely, therefore, that a reviewing court would adopt
the narrow construction of the County’s authority, and County
Code § 278-63 in particular, that the County has suggested. In
our view, the authority granted by the APFO provisions of the
Land Use Article may be implemented by measures designed to
ensure that the facilities load that the County “sheds” to a
developer, and thence to a HOA, stays with that entity.18
C. The Preemption Issues
The next question is whether either the HOA Act or the
Corporations Article provisions on nonstock corporations preempt
the powers identified above.19 Some of those powers are very
specific and more akin to duties—for example, county stormwater
programs must adhere to the standard that “[a]ll stormwater
management practices shall have an enforceable operation and
maintenance agreement to ensure the system functions as

18
We do not mean to suggest that HOA-owned facilities are “public
facilities” for purposes of LU § 7-104(b), which imposes certain
reporting requirements on local governments. We merely state that a
county’s planning power over the adequacy of the public facilities that
the county decides to provide logically includes the power to evaluate
the adequacy of the facilities to be provided by the HOA developer.
“Public” facilities for reporting purposes would include such facilities
as streets, when dedicated to the County, see Waterman, 357 Md. at
504 n.8, and public schools. See, e.g., Anselmo v. Mayor of Rockville,
196 Md. App. 115 (2010).
19
Charles County is not the only county with concerns about the
possible preemptive effect of the HOA Act on its regulation of HOA
subdivisions. Queen Anne’s County addresses that possibility in its
subdivision regulations with the following provision: “Modification.
The provisions of this Chapter 18:1 that require covenants shall be
waived or modified by the Planning Commission to the extent, if any,
to which they are prohibited by the Maryland Homeowners Association
Act . . . .” Public Local Laws of Queen Anne's County § 18:1-204B
(2006).
88] [98 Op. Att’y

designed,” Maryland Stormwater Design Manual at 1.14—while
others, such as those embodied in the “Visions” in the Land Use
Article, are more abstract. Still, in our view, each of these implied
powers survives scrutiny under the Court’s three-step preemption
analysis. See Altadis U.S.A., Inc. v. Prince George’s County, 431
Md. 307, 311 (2013) (“Maryland state law may preempt local law
in one of three ways: 1. preemption by conflict, 2. express
preemption, or 3. implied preemption.”)(footnotes omitted).
1. Express Preemption
“Express preemption occurs when the General Assembly
prohibits local legislation in a field by specific language in a
statute.” Maryland Reclamation Assocs. v. Harford County, 414
Md. 1, 36 (2010)(internal quotation marks omitted). Although the
Corporations Article does not explicitly preclude local regulation
of bylaw provisions, two provisions of the HOA Act arguably do.
First, RP § 11B-104(b)(3) provides that local governments
may not “[p]rovide that the disclosures required by § 11B-105,
§ 11B-106, or § 11B-107 of this title be registered or otherwise
subject to the approval of any governmental agency.” Taken out
of context, the meaning of this provision may be difficult to
discern: the subsection might broadly bar the County from
requiring its approval of the content of the required disclosures,
which include HOA bylaws, or it might simply bar the County
from regulating the disclosure process required of developers who
are selling a lot to a purchaser. This potential ambiguity,
however, recedes when the provisions are considered in their
proper context, as they must be. See Bourgeois v. Live Nation
Entm’t, 430 Md. 14, 27 (2013) (requiring that each provision be
interpreted “in the context of the entire statutory scheme” and that
“statutes on the same subject . . . be read together and
harmonized, to the extent possible”). The statutory scheme of the
HOA Act, especially when harmonized with the statutes that
govern the subdivision permitting process, shows that the HOA
disclosure provisions address the relationships among developers,
homeowners, and HOAs during and after the time a lot is sold,
but do not apply during the subdivision permitting stages, when
the lot itself is approved. We note in this respect that the HOA
Act presupposes the existence of an HOA, a “lot,” and a
“purchaser,” see, e.g., RP §§ 11B-102, 11B-105, all of which
emerge only after the subdivision permitting process is complete.
We also note that the many disclosures that a developer must
provide under RP §§ 11B-105 through 11B-107 include not only
bylaws, but also “all recorded . . . restrictions.” RP § 11B-
Gen. 60] 89

105(b)(6)(i). As discussed above, local governments variously
must and may exercise their land use and environmental powers
to require the developer to agree to restrictions, and many
restrictions are recorded before the subdivision can proceed. For
example, developers of HOA projects must usually enter into a
stormwater facility maintenance agreement “binding on all
subsequent owners of [the] land served.” See Model Stormwater
Management Ordinance § 9.2. Such restrictions imposed during
the subdivision application process are necessarily “subject to the
approval” of the permitting agency before the subdivision may
proceed. So, when read in the context of the HOA Act as a
whole—which targets conduct during and after the time of sale—
and in harmony with the State laws that local governments must
follow when approving the subdivision of the land into lots, the
meaning of RP § 11B-104(b)(3) becomes clear: Its provisions
address the disclosure process at the time a lot is sold and do not
limit the County’s review and “approval” of the contents of the
documents during the subdivision review process. Indeed, RP
§ 11B-104(a) keeps in “full force and effect” local provisions on
“building codes or zoning.” See also LU § 4-101(a)(2)
(expressing the State policy that “planning and zoning controls
shall be implemented by local government”).
To confirm our conclusion that RP § 11B-104(b)(3) does not
prohibit a local government from reviewing HOA bylaws during
the subdivision process, we look to the legislative history of the
HOA. See Bourgeois, 430 Md. at 27 (“Legislative history may be
considered in an effort both to confirm what appears to be a clear
intent from the language itself and to discern legislative intent
when that intent is not entirely clear from the statutory
language”). The HOA Act, enacted as Chapter 321 of the Laws
of Maryland 1987, was substantially similar to a bill that had been
introduced in 1985 at the request of the Governor’s Commission
on Condominiums, Cooperatives, and Homeowners Associations.
See 72 Opinions of the Attorney General at 160 (discussing the
history of the HOA Act). The Commission described the
disclosure requirements as “self-enforcing consumer protections”
directed at “solv[ing] the problem of disclosure now faced by
consumers” and explained that, in its view, a requirement that
HOAs register with the State would place a “workload . . . on the
State” and “would be overly burdensome.” 1985 Final Report at
11. It is likely, then, that the limitation on a local government’s
authority to require registration and approval of “disclosures” was
intended simply to address a concern that approval and
registration at the time of sale would be “overly burdensome.”
More generally, the Summary of the Senate Judicial Proceedings
90] [98 Op. Att’y

Committee Report on the bill that became the HOA Act stated
that “[t]he legislative intent of Senate Bill 96 is to create the
[HOA Act] which will govern contracts of sale for lots in a
development that is subject to a homeowners association.” None
of this history suggests a legislative intent to address the
subdivision process. In our view, RP § 11B-104(b)(3) simply
regulates the dis-closure mechanism applicable to a consumer’s
purchase; it does not apply to a county’s earlier review of
documents pertinent to the criteria set in its subdivision
regulations. Moreover, the consumer-protection purposes of the
HOA Act would not be served by requiring the County to issue
permits for HOA developments to be maintained by entities that
the County believes will not function.
The second HOA provision that might preempt local
regulation of bylaws is RP § 11B-104(b)(1). It provides that a
local government may not “[i]mpose a burden or restriction on
property which is part of a development because it is part of a
development . . . .” We have explained that, under the HOA,
Condominium, and Cooperative Housing Acts, “if common
ownership property presents a problem, but so too do other
comparable forms of property, a local jurisdiction may not impose
the cost of a solution on the particular common ownership
property alone.” 75 Opinions of the Attorney General 103, 108
(1990) (citing Rockville Grosvenor, Inc. v. Montgomery County,
289 Md. 74 (1980)). “In other words,” we stated, “the General
Assembly has reserved to itself the power to decide whether, in
pursuit of some policy objective, the developers or owners of
property in a condominium, cooperative, or homeowners
association are to bear costs that other, similar situated property
owners do not.” Id. at 106. The Court in Dumont Oaks
Community Association v. Montgomery County likewise
concluded that a charter county’s requirement that common
ownership communities pay a per-unit registration fee to fund
dispute resolution services did not violate the various prohibitions
against local laws that impose different burdens on HOAs. 333
Md. 202, 210 (1993) (approving 75 Opinions of the Attorney
General 103). The Court reasoned that the HOAs were being
regulated “because they are common ownership communities, and
not because they are homeowners associations,” and so the
ordinance was “concerned with a larger problem, and embrace[d]
a larger class.” Id. Here, the County would regulate an HOA’s
bylaws not because of the HOA’s status as an HOA, but because
the HOA owns, and must be able to maintain, a facility and
resources in accordance with State and County regulations. In our
Gen. 60] 91

view, the County’s regulation of HOA governing documents
should not run afoul of RP § 11B-104(b)(1).
We conclude that the HOA Act does not expressly preempt
the County’s review and approval of the contents of governing
documents such as bylaws.
2. Preemption by Conflict
Preemption by conflict occurs when a local ordinance “either
prohibits an act that under State law is permitted, or it permits an
act that under State law is prohibited.” Worton Creek Marina,
LLC v. Claggett, 381 Md. 499, 515 (2004). Courts will infer the
Legislature’s intent to displace local regulation either from “a
verbal conflict” (i.e., when the language of the State and local law
are in conflict) or from a “functional conflict” (i.e., when the
impact of the local law interferes with the State law’s function).
Mayor of Baltimore v. Hart, 395 Md. 394, 408-09 (2006); see
also Coalition for Open Doors, 333 Md. at 380 n.39.
As to a verbal conflict, the HOA Act regulates quorum and
voting participation requirements only on discrete topics: child-
care and home-based businesses, which an HOA may only
prohibit upon the vote of a certain percentage of its members, see
RP § 11B-111.1(d); the deletion of discriminatory covenants, also
setting a minimum vote, see RP § 11B-113.3(b); and the
amendment of governing documents, including bylaws, which
must be approved by the affirmative vote of two-thirds of the
votes in the development or “by a lower percentage if required in
the governing document.” See RP § 11B-116(b). The County has
not proposed to regulate HOA actions on these discrete topics,
and its proposal to lower voting participation requirements for
HOA actions such as bylaws amendments would not conflict with
RP § 11B-116(b), which merely sets a ceiling on the level of
voting participation required for bylaws amendments.
As for an implied “functional” conflict, the overall functions
of the HOA Act are to provide protections to buyers and
prospective buyers of lots in HOA communities. The County’s
regulation of quorums and voting participation requirements for
the purpose of preventing the failure of new HOAs would not
interfere with these functions. The problems that you describe, as
well as the commentary we have quoted above, support the
proposition that measures to improve the functioning of HOAs in
the County would instead have the incidental effect of
supplementing the consumer protection measures in the HOA
Act. See Coalition for Open Doors, 333 Md. at 380. In our view,
92] [98 Op. Att’y

the County’s implementation of its land use and environmental
powers and duties by regulating HOA bylaws at the subdivision
permitting stage would not conflict with the functions of the HOA
Act.
Whether the County’s proposed regulation of bylaws would
conflict, either verbally or functionally, with the Corporations
Article will depend on the particular measure and on whether the
particular HOA is a nonstock corporation. Many of the
Corporations Article provisions on bylaws for nonstock
corporation either specify what bylaws “may” contain, see, e.g.,
CA § 5-202(b) (permissible contents of charter or bylaws), or
supply procedures to be followed in circumstances not addressed
in a corporation’s bylaws. See, e.g., CA § 2-406 (removal of
directors); see also Lipitz v. Hurwitz, 207 Md. App. 206, 224
(remarking on the “wide variety of ways” in which HOAs are
structured), cert. granted, 429 Md. 528 (2012). A county
government’s local laws on those topics would likely not pose a
verbal conflict with those permissive provisions.
Other provisions of the Corporations Article, however, set
minimum requirements with which a local law may not conflict.
For example, CA § 2-408(a), applicable to nonstock corporations
via CA § 5-201, provides that “the action of a majority of
directors present at a meeting at which a quorum is present is the
action of the board of directors.” Section 2-408(b)(1) defines a
“quorum” as “a majority of the entire board,” unless the bylaws
“provide otherwise,” but CA § 2-408(b)(2) sets forth minimums:
A quorum must be at least one-third of the entire board, and if the
board consists of only two or three directors, a quorum must be at
least two. CA § 2-408(b). And, CA § 5-206 sets forth the
procedures to be followed when “the number of members present
at a properly called meeting of the members . . . is insufficient to
approve a proposed action . . . .” CA § 5-206(a).20 In that event,

20
Section 2-506(a) of the Corporations Article provides:
(a) Unless this article or the charter of a
corporation provides otherwise, at a meeting of
stockholders:
(1) The presence in person or by proxy of
stockholders entitled to cast a majority of all the
votes entitled to be cast at the meeting constitutes
a quorum; and
(2) A majority of all the votes cast at a meeting
at which a quorum is present is sufficient to
Gen. 60] 93

the section provides, the action may be taken at a second meeting
by a majority of those present in person or by proxy, provided that
notice is given that describes the meeting and the manner in
which voting will occur. CA § 5-206.21
So, while the Corporations Article does not expressly forbid
the County from regulating the contents of bylaws of HOAs
organized as nonstock corporations, it does contain minimum
requirements that limit the County’s authority to impose bylaw-
related conditions on developers who propose to subdivide land
for HOA developments.
3. Implied Preemption by Occupation of the Statutory
Field
“A local law is preempted by implication when it deals with
an area in which the [State] Legislature has acted with such force
that an intent by the State to occupy the entire field must be
implied.” Claggett, 381 Md. at 512 n.6 (quoting Talbot County v.
Skipper, 329 Md. 481, 488 (1993) (internal quotation marks
omitted); see also Altadis, 431 Md. at 311-16 (collecting implied
preemption cases). In Ad + Soil, Inc. v. County Comm’rs of
Queen Anne’s County, the Court of Appeals explained that “the
primary indicia of a legislative purpose to pre-empt an entire field
of law, absent express statutory language to this effect, is the
comprehensiveness with which the General Assembly has
legislated in the field.” 307 Md. 307, 328 (1986). But when the
state law “clearly contemplates a pervasive and vital role for local
legislation in the field,” id., the General Assembly obviously has
not intended to reserve the field to itself.

approve any matter which properly comes before
the meeting.
Section 5-202(b) also provides that, “[n]otwithstanding” § 5-202(a) or
other provisions of the article, the charter or bylaws may “[p]rovide for
the number or proportion of voting members whose presence in person
or by proxy constitutes a quorum at any meeting of its members; . . .
[and p]rovide that any action may be taken or authorized by any
number or proportion of the votes of all its members or all its directors
entitled to vote . . . .” CA § 5-202(b)(5), (6); see 76 Opinions of the
Attorney General 105 (discussing the applicability of the Corporations
Article to an incorporated community association).
21
We note that those requirements, called to the attention of the
existing HOAs that have ceased to function for lack of a quorum, might
help solve some of the problems that you have mentioned.
94] [98 Op. Att’y

Although the HOA Act and Corporations Article collectively
contain enough provisions applicable to HOA governance to raise
the question of implied preemption, we conclude that the two
statutes do not evidence a legislative intent to occupy the entire
statutory field of HOA governance. The HOA Act regulates
governance matters such as voting participation and meetings
procedures on only a few discrete topics, and, otherwise, provides
for a petition to circuit court for the appointment of a receiver
when, after notice, the HOA “fails to fill vacancies on the
governing body sufficient to constitute a quorum in accordance
with the bylaws . . . .” RP § 11B-111.5(a). These provisions are
not comprehensive; they leave gaps as to the actual content of the
bylaws.
The Corporations Article fills some of those gaps, but not
all. It, too, gives the drafter of the charter or bylaws the leeway to
devise provisions on many subjects, albeit within limits such as
those discussed above. See CA § 2-506(a). Meanwhile, the
Stormwater Management Act expressly contemplates, and
requires, that counties will play a regulatory role that is
sufficiently “pervasive and vital,” Ad + Soil, 307 Md. at 328, to
weigh against preemption. The Forest Conservation Act, which
requires counties to implement its provisions, and Article 25A
and the Land Use Article, which provide for local regulation of
infrastructure and local implementation of land use policies,
likewise contemplate a strong local role. In our view, these
statutes impliedly authorize the County to require developers to
fill the gaps left by the HOA Act and the Corporations Article
with bylaw and charter provisions that will promote HOAs’
ability to perform their maintenance agreements and other
governance functions.
In sum, local governments may set such bylaw standards as
they deem necessary to assure an HOA’s ability to comply with
measures adopted by the County under the mandates and enabling
statutes that we have discussed so long as those standards meet
the minimum requirements set by the HOA Act and Corporations
Article. And, if a local government regulates HOA bylaw
provisions as a means of ensuring compliance with maintenance
standards, we do not think the regulations would be barred by RP
§ 11B-104(b)(1), which precludes local governments from
imposing burdens on HOA developments because of their status
as HOA developments.22

22
Your memorandum concludes that the County could regulate
HOA governance so long as it enacted similar provisions regarding
Gen. 60] 95

D. Financial Issues
Lastly, you ask generally about the County’s authority to
require developers to create larger reserve funds for HOAs and
pay HOA assessments for unsold lots so as to assure an HOA’s
ability to maintain the commonly-owned facilities. We believe
that the imposition of additional financial requirements would be
permissible under many of the land use and environmental powers
we have discussed above. It is well-established that the exercise
of a county’s land use powers, for example, may be conditioned
on the payment of various types of expenses occasioned by land
development. Such conditions are commonly referred to as
“exactions,” which have been broadly defined as any
“condition[s] which must be complied with before some
advantage such as recordation or lot subdivision is allowed.”
Village Square No. 1, Inc. v. Crow-Frederick Retail Ltd. P’hip, 77
Md. App. 552, 561 (1989); see Waterman, 357 Md. at 523-24
(listing as examples of exactions cases in which monetary
conditions were imposed on a developer).23
As recently held by the United States Supreme Court, the
government may impose a monetary exaction when “there is a
‘nexus’ and ‘rough proportionality’ between the government’s
demand and the effects of the proposed land use.” Koontz v. St.

condominium and cooperative associations. We caution that the
statutes that govern those associations regulate them in ways not
contained in the HOA Act, and that preemption is more likely. For a
discussion of the preemption provisions in the Condominium Act, RP
§§ 11-101 et seq., see 67 Opinions of the Attorney General 13 (1982),
and its appendix, a bill review letter concerning the 1983 amendments
to that law. See also Dumont Oaks, 333 Md. at 205-11; 90 Opinions of
the Attorney General 35-36 (2005) (describing the Condominium Act
generally). In some cases, condominiums organized under the
Condominium Act and cooperatives organized under CA §§ 5-6B-01 et
seq. are also subject to the HOA Act. See 73 Opinions of the Attorney
General 215, 218 (1988) (“The Homeowners Association Act would
apply to a condominium or cooperative only in the comparatively rare
instance in which it is ‘part of a development’ because it is subject to
the authority of a separate homeowners association.”).
23
In our view, neither measure would constitute an impact fee,
imposed to offset the cost a government incurs to support new
development, see 89 Opinions of the Attorney General 212, 213 (2004),
because the funds and assessments would be payable not to the County,
but to the HOA to offset costs incurred by the HOA. For a discussion
of the “system of charges” that may be imposed for stormwater
management, see 96 Opinions of the Attorney General 61.
96] [98 Op. Att’y

Johns River Water Mgmt. Dist., — U.S. —, 133 S.Ct. 2586, 2591
(2013) (citing Dolan v. City of Tigard, 512 U.S. 374 (1994), and
Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987)).
The Koontz Court explained:
Under Nollan and Dolan the government
may choose whether and how a permit
applicant is required to mitigate the impacts
of a proposed development, but it may not
leverage its legitimate interest in mitigation
to pursue governmental ends that lack an
essential nexus and rough proportionality to
those impacts.
Koontz, 133 S.Ct. at 2595.
Here, the determination of whether the County’s proposed
financial measures would bear a reasonable nexus and be
“roughly proportional” to the impact that a particular HOA
development will impose on the public would depend on the facts
specific to that development. Generally, however, you have
described the inability of poorly-structured HOAs to maintain
stormwater management facilities and common areas, and the
burden on the County to address the ensuing nuisances and
stormwater violations. The Koontz Court emphasized that
“[i]nsisting that landowners internalize the negative externalities
of their conduct is a hallmark of responsible land-use policy.”
Koontz, 133 S.Ct. at 2595. In our view, then, the Nolan/Dollan
test would likely be satisfied by the proposed financial conditions
to the extent they are designed to ensure that the burdens the
County has assigned to the developer, and thence to an HOA,
remain with those entities.
III
Conclusion
If read in isolation, the limitations on local powers in the
Homeowners Association Act could create some doubt about a
local government’s authority to regulate the contents of HOA
bylaws as a means of ensuring that HOAs maintain their facilities.
However, the Act is more properly read in the context of other
statutes that pertain to HOAs, and some of those statutes require
local governments to implement State mandates through measures
that will only be effective if HOAs are structured in a way that
will enable them to perform their maintenance functions. We do
not ascribe to the General Assembly the intent, on the one hand,
Gen. 60] 97

to require local governments to implement the State mandates we
have identified above, and, on the other, to exclude a significant
means by which they might do so. We also do not think that the
HOA Act supplants the local governments’ discretionary land use
powers concerning the permitting of HOA subdivisions.
We therefore conclude that the County may enact reasonable
bylaws measures related to ensuring that a prospective HOA will
be able to maintain its common areas and facilities, so long as
those measures do not contradict either the HOA governance
provisions in the HOA Act or the provisions in the Corporations
Article that apply to nonstock corporations. The County may also
set reasonable conditions on the funding of an HOA by the
developer.
Douglas F. Gansler
Attorney General

Ann MacNeille
Assistant Attorney General

Adam D. Snyder
Chief Counsel
Opinions & Advice