Can Maryland's legislature fix a town's mistaken boundary description from decades ago, or does the town have to do it itself?

Plain-English summary

In 1987, the Mayor of the Town of Highland Beach asked the Attorney General how to fix an apparent error in the town's boundary description. Highland Beach's 1922 act of incorporation described the town's boundaries as covering 40 acres from an 1893 deed, but that description included 13 1/3 acres, known as Venice Beach, that neither the town government nor the residents there had treated as part of Highland Beach for the 65 years since incorporation.

The Attorney General agreed with the town attorney's earlier conclusion that the General Assembly could not simply amend Highland Beach's charter to redraw the boundary, because the Municipal Home Rule Amendment bars the legislature from passing a law about a single municipality's "incorporation, organization, government or affairs" unless the law applies alike to an entire class of municipalities. The opinion also examined whether Highland Beach could fix the problem itself through a charter amendment to detach the Venice Beach land, drawing on a 1956 AG opinion that reasoned a municipality's general home-rule power to amend its own charter could include the power to detach territory, since the legislature had never enacted a specific detachment procedure the way it had for annexation. But the opinion cautioned that this conclusion was not free from doubt and had no support in any reported Maryland case, and suggested the cleanest fix was for the General Assembly to pass general legislation giving all municipalities a real detachment procedure, comparable to the existing annexation procedure.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the Maryland legislature pass a special law fixing one town's mistaken boundary?
According to this 1987 opinion, no. The Municipal Home Rule Amendment bars the General Assembly from enacting a law about a single municipality's incorporation, organization, government, or affairs unless the law applies alike to an entire class of municipalities, so a one-town fix for Highland Beach's boundary was off the table.

Could a Maryland town detach part of its own territory through a charter amendment?
The opinion said this was legally uncertain. A 1956 AG opinion had reasoned that a municipality's home-rule charter-amendment power could include detachment, since the legislature had never set up a specific detachment procedure, but no reported Maryland case had ever confirmed that conclusion.

What did the opinion recommend as the real fix for this kind of boundary problem?
The opinion suggested the General Assembly enact general legislation giving all municipalities a specific detachment procedure, similar to the existing annexation procedure in Article 23A, §19, rather than leaving individual towns to rely on an uncertain charter-amendment theory.

Background and statutory framework

Article XI-E, §1 of the Maryland Constitution, added by the 1954 Municipal Home Rule Amendment, bars the General Assembly from enacting any law relating to the incorporation, organization, government, or affairs of a municipal corporation if the law is "special or local in its terms or in its effect," requiring instead that such laws apply alike to a whole class of municipalities under Article XI-E, §2. Since Maryland has only ever created a single class of municipal corporations under Article 23A, §10, this effectively means the General Assembly cannot legislate for one town alone. The opinion applied this rule, following Hitchins v. City of Cumberland's holding that the Amendment bars the legislature from amending an individual municipality's charter through local legislation, to conclude the General Assembly could not redraw Highland Beach's boundary by amending its 1922 act of incorporation or charter.

Turning to whether Highland Beach could act on its own, the opinion revisited a 1956 AG opinion reasoning that because Article XI-E gives municipalities general home-rule power over their own affairs, and because the General Assembly had provided a specific annexation procedure in Article 23A, §19 but no parallel detachment procedure, a municipality's residual charter-amendment power likely extended to detaching territory too, drawing support from Birge v. Town of Easton's recognition that a municipality can amend its charter on matters of its own internal organization and affairs. But the opinion flagged real uncertainty: no published Maryland decision had ever tested whether detachment truly falls within that residual home-rule power, as opposed to something the legislature would need to authorize explicitly the way it did for annexation. Given that uncertainty, the opinion recommended the General Assembly close the gap with general detachment legislation rather than leave Highland Beach, or any other municipality with a similar problem, to rely on an untested legal theory.

Citations

Statutes:

• Md. Const. art. XI-E, §1 (bars special or local legislation on a municipality's incorporation, organization, government, or affairs)
• Md. Const. art. XI-E, §2 (requires the General Assembly to classify municipalities and legislate by class)
• Md. Const. art. XI-E, §3 (residual home-rule power reserved to municipalities)
• Article 23A, §9(a) (Baltimore City is not a municipal corporation for Home Rule Amendment purposes)
• Article 23A, §9(e) (definition of "municipal charter," including local laws relating to a municipality's affairs)
• Article 23A, §10 (creates a single class encompassing all Maryland municipal corporations)
• Article 23A, §19 (statutory annexation procedure for municipalities)
• Chapter 213, Laws of Maryland 1922 (Highland Beach's act of incorporation and boundary description)

Cases:

• Prince Georges County v. Laurel, 262 Md. 171 (1971)
• Hitchins v. City of Cumberland, 208 Md. 134, 143 (1955)
• Birge v. Town of Easton, 274 Md. 635, 644 (1975)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

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

LOCAL GOVERNMENT

Municipal Corporations—Boundary Change—Detachment of Territory.

August 28, 1987

The Honorable Reginald M. Felton
Mayor of Highland Beach

You have requested our opinion concerning the procedures by which the act incorporating the Town of Highland Beach may be changed to correct an apparently erroneous description of the town's boundaries. Mr. Frederick C. Sussman, the town attorney, has advised you that the General Assembly is prevented by the Municipal Home Rule Amendment to the Maryland Constitution from amending the act of incorporation to redescribe the town's boundaries.

For the reasons stated below, we agree with Mr. Sussman's conclusion: The General Assembly lacks authority to amend the act incorporating Highland Beach (or the town's charter, which incorporates the act's description of the boundaries). It might be possible for Highland Beach itself to adopt a corrective amendment, but its authority to do so is not clear. We suggest that the General Assembly consider enactment of legislation, applicable to all municipalities, that provides procedures for the detachment of territory.

I
Background

The Town of Highland Beach was incorporated by Chapter 213, Laws of Maryland 1922. Chapter 213 provided that "the ground included within the boundaries of the said town of Highland Beach shall be all [the] ground" specified in an 1893 deed, totalling 40 acres. That land, we are informed, includes 13 1/3 acres now known as the community of Venice Beach. Your opinion request points out that, "In the 65 years since the Town was incorporated, the community of Venice Beach has never been considered a part of the Town either by town officials or by the property owners and residents of the Venice Beach community."

As Mr. Sussman observed in his opinion to the Board of Commissioners, this longstanding view of the situation by all concerned does not alter the legal consequences of what the General Assembly enacted in 1922:

"It would be pure speculation to guess as to whether the description of the Town's boundaries by the General Assembly intentionally or inadvertently included all 40 acres, including what is now known as Venice Beach. That description of the Town's boundaries has never been altered by the General Assembly, and it is perpetuated in Article I, Section 104, of the Highland Beach charter. The fact that the Town government may have never recognized the community of Venice Beach as being within the corporate limits of the Town makes little difference. As a matter of law, those properties lying within the community of Venice Beach lawfully are part of the Town and are subject to the same benefits and burdens as other property within the corporate limits." Letter from Frederick C. Sussman, Esquire, at 2 (November 17, 1986).

The current issue, therefore, is whether the description of the town's boundaries in its act of incorporation and charter can be made to conform to the historical reality.

II
Uniformity Requirement

Article XI-E, §1 of the Constitution prohibits the General Assembly from enacting any law "relating to the incorporation, organization, government or affairs" of any municipal corporation, if the law "will be special or local in its terms or in its effect. . . ." See generally Prince Georges County v. Laurel, 262 Md. 171 (1971). Instead, "the General Assembly shall act in relation to the incorporation, organization, government or affairs of any such municipal corporation only by general laws which shall in their terms and in their effect apply alike to all municipal corporations in one or more of the classes provided for in Section 2 of this Article."1

Thus, since the enactment of the Municipal Home Rule Amendment in 1954, the General Assembly has been prohibited from "enact[ing] local legislation to amend charters of individual municipalities." Hitchins v. City of Cumberland, 208 Md. 134, 143 (1955). We agree with Mr. Sussman that legislation to change the description of the boundaries of Highland Beach would run afoul of this prohibition. See 58 Opinions of the Attorney General 153, 157 (1973).

III
Alternative Procedures

You have also asked whether any procedure to redesignate the corporate boundaries of Highland Beach is available, if the General Assembly may not pass a curative act.

One possible procedure is for the town itself to amend its charter, although this course is legally uncertain. In 41 Opinions of the Attorney General 133 (1956), this office was asked for an opinion "as to the procedure by which a municipal corporation may provide for detachment or excision of territory." The opinion concluded that detachment might be accomplished by charter amendment:

"The power to detach territory from a municipal corporation is analogous to the power of annexing new territory. Annexation may be achieved by statute or by charter amendment. And the same is true of detachment. As Article XI-E confers all powers of municipal government to the municipal corporation except those reserved to the Legislature or brought about by general legislation by the Legislature, there would seem to be no doubt that a municipal corporation has power and authority to detach. Since the Legislature has not provided a statutory method to achieve detachment as it has to achieve annexation, the alternative procedure by detachment by charter amendment is available to the municipal corporation." 41 Opinions of the Attorney General at 134 (citations omitted).

See Birge v. Town of Easton, 274 Md. 635, 644 (1975) ("A municipality possesses the power and authority to amend its charter with respect to matters relating to its internal 'incorporation, organization, government or affairs'").2

We caution, however, that this conclusion is not at all free from doubt and is not supported by any reported case in Maryland regarding detachment of territory by a municipality. As the opinion observed, the General Assembly has provided a detailed procedure for annexation of land by a municipality. See Article 23A, §19. The detachment of land would be comparable in its effect on the residents of the detached area and of the municipality itself. If presented with the question, a court might well conclude that the power to detach territory is not a part of the residual home rule power granted by Article XI-E, §3 of the Constitution. See generally 68 Opinions of the Attorney General 295, 297-98 (1983).

The best solution to the problem, one that would assist Highland Beach and any other municipality that might discover a similar problem, while at the same time preserving the rights of those affected, would be enactment by the General Assembly of a general law specifying detachment procedures, comparable to the procedures for annexation in Article 23A, §19. Without such legislation, Highland Beach's effort to correct the problem on its own will entail substantial legal risk.

IV
Conclusion

In summary, it is our opinion that:

1) The General Assembly lacks authority to effect a change in the boundaries of Highland Beach through amendment of the town's act of incorporation or charter.

2) Although Highland Beach arguably has authority to detach territory through a charter amendment, this course is legally uncertain.

We suggest that the General Assembly consider the enactment of general legislation providing for the detachment of territory by a municipality.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 Article XI-E, §2 directs the General Assembly to "classify all such municipal corporations by grouping them into not more than four classes based on population. . . ." The General Assembly has created but a single class, encompassing all municipal corporations. Article 23A, §10 of the Maryland Code. (The City of Baltimore is not a municipal corporation for purposes of the Municipal Home Rule Amendment or its implementing statute. Article XI-E, §1; Article 23A, §9(a).)

2 Under Article 23A, §9(e), "The term 'municipal charter' shall include the existing charter and all local laws of the General Assembly relating to the incorporation, organization, government, or affairs concerning administration and services, of said municipal corporation."