If a Maryland review commission takes too long to act on a local government's Chesapeake Bay protection plan, does the plan get approved automatically?

Plain-English summary

Three Maryland legislators asked whether Somerset County's Chesapeake Bay Critical Area program had been "deemed approved" under a statutory 90-day review deadline. The Commission received the program on March 15, 1988, but did not confirm it was complete until April 26. The Attorney General concluded that the Commission could screen submissions for completeness. Once it found Somerset County's program complete, however, the statutory clock ran from the March 15 receipt, not the later determination. The Commission's June 29 partial disapproval came after the June 13 deadline, so the program was approved by operation of law.

Currency note

This opinion was issued in April 1989 and interpreted the Chesapeake Bay Critical Area Law and Commission review procedures as they existed at that time. Maryland's critical area program has continued to evolve through statutory amendments and Commission practice in the decades since. This page is a historical record of how the Attorney General resolved one specific timing dispute over Somerset County's 1988 program submission. It describes what the opinion concluded at the time and is not a statement of current Maryland critical area law or Commission procedure. Verify the current statute and Commission practice directly before relying on anything here.

Common questions

Did a Maryland county's Chesapeake Bay protection plan get automatically approved just because a review commission was slow? Yes, in this specific case. The opinion concluded that Somerset County's complete program was received on March 15, 1988. The Commission did not act by June 13, 90 days after receipt, so the program was "deemed approved" under NR §8-1809(d)(2) despite its June 29 partial disapproval.

Could the Commission screen a county's submission for completeness? Yes. The opinion agreed that an incomplete submission was not yet "received" as a proposed program under the statute. Once a submission was found complete, though, the 90 days ran from when the Commission received it, not from the later date on which it finished screening.

Did being "deemed approved" mean Somerset County's program was guaranteed to comply with all Bay protection requirements? No. The opinion was careful to note that approval by default under the statute was not the same as a substantive Commission finding that the program met all statutory and regulatory requirements, and it flagged that any parts of the program the Commission had tried to disapprove could still face legal challenge later if they genuinely fell short of the law's standards.

Background and statutory framework

Under the Chesapeake Bay Critical Area Law, each local jurisdiction bore primary responsibility for developing a program meeting statutory goals (minimizing water-quality impacts, conserving habitat, and establishing appropriate land use policies), subject to Commission review and approval, with all such programs required to be in effect within 760 days of the Commission's criteria taking effect. NR §8-1809 set a detailed schedule: a jurisdiction had 270 days (extendable) to submit a proposed program after a public hearing, the Commission had 30 days to appoint a five-member panel for a local hearing, and then 90 days from receiving the proposed program to either approve it or specify required changes, with the program "deemed approved" if the Commission did neither within that window.

Somerset County submitted its program on March 15, 1988. Five weeks later, on April 26, 1988, the Commission's chairman sent a letter confirming the submission was complete as to the statute's required elements and stating that the 90-day review period would begin "as of the date of this letter," rather than from the original March 15 submission. The Commission did not act by June 13 (90 days after the original submission), but on June 29, within 90 days of the April 26 letter, it disapproved certain aspects of the program. The opinion framed the central question as whether the county's program had already been deemed approved before that June 29 disapproval.

The opinion first addressed whether the Commission could screen submissions for completeness at all, concluding yes: reading NR §8-1809's reference to "a proposed program" together with the minimum program elements required by NR §8-1808(b) and the Commission's criteria, an incomplete submission was never properly "submitted" or "received" in the statutory sense, so it did not start the 90-day clock. But screening did not give the Commission extra time to review a complete program. Somerset County's program was complete when received on March 15, and the 90 days expired June 13. The Commission's June 29 partial disapproval was too late, even though it came within 90 days of the April 26 completeness letter. The opinion concluded that the program was approved by default, while cautioning that default approval did not decide whether it met the law's substantive requirements.

Citations and references

Statutes:

• NR §8-1808(a)(1), assigning primary responsibility for local programs to jurisdictions subject to Commission review
• NR §8-1808(b), the three core statutory goals a local program must serve
• NR §8-1808(c), the eleven minimum elements a "sufficient" program must contain
• NR §8-1809(c), the local jurisdiction's submission deadline and public hearing requirement
• NR §8-1809(d)(1), the Commission's 30-day deadline to appoint a local hearing panel
• NR §8-1809(d)(2), the 90-day review deadline and default "deemed approved" rule at issue in this opinion
• NR §8-1809(d)(3), the 40-day deadline for reviewing a changed proposal
• NR §8-1809(e), governing a "proposed change" to a program
• NR §8-1809(f), the 760-day overall deadline for all critical area programs to be in effect
• NR §8-1809(g) and (h), governing program "amendments"
• NR §8-1809(i), requiring compliance with both the statute and the Commission's criteria
• NR §8-1810, the Commission's authority to adopt a program itself for a noncompliant jurisdiction
• NR §1-503(b), the Environmental Standing Act's citizen-suit provision for mandamus or equitable relief
• 12 U.S.C. § 1843(c), the analogous federal bank holding company deemed-approval statute discussed in Bank America Corp.
• N.H. Rev. Stat. Ann. §36:23 (1969), the analogous New Hampshire subdivision-plat deemed-approval statute discussed in Allard v. Thalheimer

Cases:

• Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987), cited for the guiding principle of construing statutes consistent with legislative goals
• Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957), cited for treating a similar automatic-affirmance deadline as mandatory, not directory
• Bank America Corp. v. Board of Governors, 596 F.2d 1368 (9th Cir. 1979), federal case construing an analogous 91-day deemed-approval banking statute
• Allard v. Thalheimer, 358 A.2d 395 (N.H. 1976), New Hampshire Supreme Court decision holding an incomplete plat submission does not start a deemed-approval clock
• Lake Erie Power & Light Co. v. Telling-Belle Vernon Co., 14 N.E.2d 947, 952 (Ohio 1937), cited alongside Allard on incomplete filings
• Kornbluth v. Savannah, 398 F. Supp. 1266, 1268 (E.D.N.Y. 1975), cited alongside Allard on incomplete filings
• Matthews v. Kern, 22 N.Y.S.2d 621, 622 (Sup. Ct. 1942), cited alongside Allard on incomplete filings
• Holy Cross Hosp. v. Health Services Cost Review Comm'n, 283 Md. 677, 685, 393 A.2d 181 (1978), cited for deference to an agency's contemporaneous interpretation of its own governing statute
• Madison at Merrick, Inc. v. Leonard, 253 N.Y.S.2d 44 (Sup. Ct. 1964), cited for the rule that an agency cannot effectively extend its own review deadline once an application is complete
• Savage v. Town of Rye, 415 A.2d 873, 875 (N.H. 1980), cited for approving a preapplication completeness review so long as the agency adheres strictly to the deadline once an application is final
• Tuscarora Forests, Inc. v. Fernmanagh Bd. of Supervisors, 471 A.2d 137, 138 (Pa. Cmwlth. 1984), cited alongside Savage on incomplete subdivision plans

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/1989/Volume74_1989.pdf (this opinion appears at printed pages 60-70 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

CHESAPEAKE BAY CRITICAL AREA COMMISSION

Local Programs - Review And Approval - Status Of Somerset County's Program

April 17, 1989

The Honorable Lewis R. Riley
Senate Of Maryland

The Honorable Norman H. Conway
The Honorable Daniel M. Long
Maryland House of Delegates

Together with the late Delegate Pilchard, you requested our opinion concerning the applicability of §8-1809(d) (2) of the Natural Resources Article ("NR" Article") to the critical area program of Somerset County. Specifically, you ask whether the Somerset County program was "deemed approved" under that paragraph.

For the reasons stated below, we conclude that, although the Chesapeake Bay Critical Area Commission had the discretion to screen local program submissions for completeness prior to the beginning of the 90-day period that the statute provides for Commission review, in the case of Somerset County the Commission exceeded the bounds of its discretion. In our opinion, Somerset County's program was "deemed approved" as submitted by the county. However, we should not be understood to be addressing the program's compliance with substantive elements of the Critical Area Law and its implementing regulations.1

1 See text accompanying note 6 below.

I

Statutory Background

In two prior opinions, this office discussed in detail the purposes of the Chesapeake Bay Critical Area Law and the procedures of the Critical Area Commission. 73 Opinions of the Attorney General 57 (1988); 72 Opinions of the Attorney General 14 (1987). Under this law, "each local jurisdiction shall have primary responsibility for developing and implementing a program, subject to review and approval by the Commission." NR §8-1808(a)(1).

These local programs are at the core of the overall effort to protect the Bay. In NR §8-1808(b), the General Assembly mandated that:

A program shall consist of those elements which are necessary or appropriate to:

(1) Minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands;

(2) Conserve fish, wildlife, and plant habitat; and

(3) Establish land use policies for development in the Chesapeake Bay Critical Area which accommodate growth and also address the fact that, even if pollution is controlled, the number, movement, and activities of persons in that area can create adverse environmental impacts.

A local program must comply with requirements in both the statute and the Commission's criteria. NR §8-1809(i). The statute specifies eleven elements that, "[at] a minimum," would make a program "sufficient" to meet the statutory goals. NR §8-1808(c). The criteria, in turn, elaborate upon the required elements of a local jurisdiction's program. See generally COMAR 14.15.

To assure that the overall program goals would be realized "in a consistent and uniform manner," the General Assembly established in NR §8-1809 a detailed schedule for local program development. "Within 760 days after criteria adopted by the Commission become effective, there shall be in effect throughout the Chesapeake Bay Critical Area programs approved or adopted by the Commission." NR §8-1809(f). Local jurisdictions were given the option of either developing their own programs or letting the Commission do so, and a schedule for preparation and approval was set forth as follows in NR §8-1809:

(c) If a local jurisdiction states its intent to develop a program, it shall prepare a proposed program and submit it to the Commission within 270 days after the effective date of the criteria adopted under §8-1808 of this subtitle. However, if the local jurisdiction submits evidence satisfactory to the Commission that it is making reasonable progress in the development of a program, the Commission may extend this period for up to an additional 180 days. Before submission of a program to the Commission within the time allowed by this subsection, a local jurisdiction shall hold at least one public hearing on the proposed program, for which 2-weeks notice shall be published in a newspaper of general circulation in the local jurisdiction.

(d) (1) Within 30 days after a program is submitted, the Commission shall appoint a panel of 5 of its members to conduct, in the affected jurisdiction, a public hearing on the proposed program.

(2) Within 90 days after the Commission receives a proposed program from a local jurisdiction, it shall either approve the proposal or notify the local jurisdiction of specific changes that must be made in order for the proposal to be approved. If the Commission does neither the proposal shall be deemed approved.

(3) A changed proposal shall be submitted to the Commission in the same manner as the original proposal, within 40 days after the Commission's notice. Unless the Commission approves a changed proposal or disapproves a changed proposal and states in writing the reasons for its disapproval within 40 days, the changed proposal shall be deemed approved.

Your question concerns one aspect of the procedures by which the Commission was to review a local jurisdiction's program. Under NR §8-1809(c), "[i]f a local jurisdiction states its intent to develop a program, it shall prepare a proposed program and submit it to the Commission within 270 days after the effective date of the [Commission's] criteria .... Then, "[w]ithin 90 days after the Commission receives a proposed program from a local jurisdiction, it shall either approve the proposal or notify the local jurisdiction of specific changes that must be made in order for the proposal to be approved. If the Commission does neither the proposal shall be deemed approved." NR §8-1809(d)(2).

II

Submission of Somerset County's Program

On March 15, 1988, a representative of Somerset County delivered the county's proposed program to the Commission. Five weeks later, on April 26, 1988, the late Judge Solomon Liss, then Chairman of the Commission, sent the following letter to the President of the Board of County Commissioners for Somerset County:

This is to formally acknowledge submittal of the Somerset County Chesapeake Bay Critical Area Program on March 15, 1988 to the Commission. This is also to inform you that the Somerset County Critical Area Program has been determined to be complete as to the required elements in Section 8-1808 of the Law and 14.15.10 and 14.15.11 of the criteria.
Therefore, as of the date of this letter, the 90-day review period by the Commission will begin.

The 90th day after March 15, 1988, was June 13. By that date, the Commission had taken no action. However, on June 29, 1988,

2
The Commission's criteria, which were approved by the General Assembly, became effective on May 13, 1986.

more than 90 days after March 15, but within 90 days of Judge Liss' April 26 letter, the Commission disapproved certain aspects of the county's proposed program. The issue, then, is whether the county's program had been "deemed approved" under NR §8-1809(d)(2) prior to the Commission's partial disapproval on June 29.

Ill

Mandatory Nature of Deadline

In attempting to construe the phrase "[w]ithin 90 days after the Commission receives a proposed program from a local jurisdiction," our guiding principle is to achieve a result consistent with the goal of the General Assembly. See Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987). Although the legislative history contains no material related to this question, we do draw guidance from the context in which NR §8-1809(d)(2) appears.

Unquestionably, the General Assembly sought to compel a Commission decision, one way or the other, about the adequacy of a local jurisdiction's program within the fixed period of 90 days. The default language, "If the Commission [takes no action] the proposal shall be deemed approved," is meant to force Commission action within the 90-day deadline. This time limit is not merely directory. See Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957).3

One important goal of the Critical Area Law was to have measures to protect the Bay in place by a set date, "[w]ithin 760 days after criteria adopted by the Commission become effective ...." NR §8- 1809(f). Moreover, the statute sets out a timetable for steps in local program development, including the Commission's review, consistent with this overall deadline. See Part I above.

As we explained in detail last year, the Commission's review process was a demanding one. The Commission was required to assess each program element to determine if it comported with the applicable

3
In Scherr, the Court of Appeals held that the following provision was mandatory, not directory: "The failure of the [circuit] court to determine an appeal within a period of 30 days after the record has been filed in court by the local [liquor] board ... shall constitute an automatic affirmance of the local board's decision ...." 211 Md. at 566.

provisions of the statute and the criteria. See 73 Opinions of the Attorney General at 61. If the Commission concluded that a program element was deficient, it was empowered to direct a change in that element. Nevertheless, despite the formidable nature of the task, the Commission was required to decide whether there were any deficiencies within 90 days. In light of the statutory scheme and its underlying purpose, the Commission was not permitted to allow itself extra time for this review. We do not understand the Commission, in its practice or interpretation, to have contended otherwise.

IV

Screening for Program Completeness

When the first local programs were submitted to the Commission, the Commission's counsel were asked whether a program wholly lacking one or more of the elements mandated in NR §8-1808(c) or in the criteria was sufficient to trigger the 90 day period for Commission
action provided by NR §8-1809(d)(2).
Counsel advised the
Commission that when the General Assembly required a local jurisdiction to submit "a proposed program," it meant a program containing all of the minimum and mandatory program elements. If a program submission failed this test, counsel advised, the 90 days for Commission action from receipt of "a proposed program" would not start. Thus, counsel advised that the Commission's proposal to subject initial program submissions to a "completeness review" was supported by the law. We think that this advice was correct.

First, the reference in NR §8-1809 to submission of "a proposed program" must be read in the context of other provisions of the law, described in Part I above, that delineate what a "program" must include "at a minimum." There is nothing in NR §8-1809 to suggest that a "proposed program" could consist of anything less than the minimum elements set forth in NR §8-1808(b) and the Commission's criteria.

Second, to read the references to "proposed program" in NR §8- 1809(c) and (d) to mean anything less than a program containing all of the minimum elements would frustrate the intent of other provisions in NR §8-1809. For example, a local jurisdiction was required by NR §8-1809(c) to hold a public hearing on its proposed program before submitting it to the Commission. But if a "proposed program"

contained less than all of the minimum program elements, the public would have been deprived of an opportunity to comment on the missing elements.

Third, if the Commission had been required to act within 90 days on a proposed program lacking some of the minimum elements, the Commission would have had no choice but to disapprove the program. However, this would have meant that upon receipt of a corrected program, the Commission would have had only 40 days to review the entire program (NR §8-1809(d)(3)), not the 90 days contemplated by NR §8-1809(d)(2). The need to act on a whole program in so truncated a time period would also have obviated the Commission's only public hearing, required by NR §8-1809(d) to be held by a panel within 30 days of the original submission of a program. Since perhaps the bulk of a program would not yet have been submitted, that hearing might have been a futile exercise. In short, a reading of the act that would have forced so foreshortened a review process is inconsistent with the statutory objective. See Bank America Corp. v. Board of Governors, 596 F.2d 1368 (9th Cir. 1979).4

Moreover, although we are aware of no Maryland case on point, cases from other jurisdictions support the Commission's practice. In Allard v. Thalheimer, 358 A.2d 395 (N.H. 1976), the New Hampshire Supreme Court construed a similar statutory scheme. Under New Hampshire law, a person seeking approval of a subdivision plat was to submit it to the local planning board. The statute required the planning board to "act to approve or disapprove [the plat] within 90 days; ... otherwise such plat shall be deemed to have been approved ...." N.H. Rev. Stat. Ann. §36:23 (1969). The plaintiff purported to submit a plat, but the planning board rejected it because it did not meet a regulatory requirement that lot sizes be shown in square feet. The court held: "In these circumstances the master properly rejected the

4
This case involved another automatic approval statute. Under 12 U.S.C.
§ 1843(c), an application by a bank holding company to engage in certain nonbanking activities "shall be deemed to have been granted" if the Board of Governors of the Federal Reserve System fails to act on the application "within the 91 day period which begins on the date of submission to the Board of the complete record on that application ...." The Ninth Circuit observed that "we must interpret the 91 day rule in a way which gives the Board an adequate opportunity to discover and evaluate 'possible adverse affects such as undue concentration of resources, decreased or unfair competition, conflicts of interest,' and the like, so that the Board can 'insure that the activities of these companies do not result in harm to the public ....'" 596 F.2d at 1376-77 (quoting substantive provisions of the law).

plaintiff's claim that he submitted the plat." 358 A.2d at 396. Accord Lake Erie Power & Light Co. v. Telling-Belle Vernon Co., 14 N.E.2d 947, 952 (Ohio 1937) (filing requirement for regulatory approval not satisfied if key contractual term is omitted). See also Kornbluth v. Savannah, 398 F. Supp. 1266, 1268 (E.D.N.Y. 1975) (claim under Tort Claims Act not properly "presented" when physician's statements were omitted); Matthews v. Kern, 22 N.Y.S.2d 621, 622 (Sup. Ct. 1942) (improperly filled out citizenship application not a "filing").

Finally, even if the Commission's decision to engage in "completeness reviews" were viewed as debatable, it was a reasonable interpretation of the statute, entitled to deference. "[T]he view taken of a statute by administrative officials soon after its passage is strong, persuasive influence ... and should not be disregarded except for the strongest and most urgent reasons." Holy Cross Hosp. v. Health Services Cost Review Comm'n, 283 Md. 677, 685, 393 A.2d 181 (1978).

V

Effect of Completeness Determination

Although the Commission had the power to return to a local jurisdiction an incomplete program without having initiated the 90-day review period, however, the situation involving Somerset County poses a different question: When the Commission screens a program for completeness and determines that it is complete, was the Commission permitted to treat the 90-day review period as beginning on the date of its determination of completeness? We think not.

Just as an incomplete program was never properly "submitted" or "received" and therefore never initiated the 90-day review period, so a complete program was "submitted" and "received" and therefore did initiate the 90-day review period. There is nothing in the language of the statute or its underlying policy that would permit the Commission, in effect, to grant itself more than 90 days to review a complete program. See Madison at Merrick, Inc. v. Leonard, 253 N.Y.S.2d 44

(Sup. Ct. 1964).5 Indeed, one out-of-state case expressly approves a procedure for "preapplication review" of subdivision applications, much like that of the Commission, but only if the reviewing agency adheres strictly to the statutory deadline for review once the application is "final." Savage v. Town of Rye, 415 A.2d 873, 875 (N.H. 1980). See also Tuscarora Forests, Inc. v. Fernmanagh Bd. of Supervisors, 471 A.2d 137, 138 (Pa. Cmwlth. 1984) (incomplete subdivision plan justifies agency inaction "pending submission and review of a revised plan containing more complete information").

VI

Status of Somerset County Program

In our view, the Commission exceeded the permissible bounds of its discretion in its handling of the Somerset County program. It took five weeks for the Commission to determine that the Somerset County program was complete, and then it sought to take the full 90 day review period in addition. But, as explained in Part V above, the screening that we believe was permissible under the statute did not permit this result.

Unquestionably, the Commission's resources were severely taxed by the demands of the review process, at a time when the proposals of many jurisdictions were pending. We do not doubt the Commission's good faith in its processing of the Somerset County proposal.

Good faith alone is not enough, however. The Commission was not empowered effectively to extend the 90-day deadline in NR §8- 1809(d)(2) by five weeks. Instead, the Commission was obliged to disapprove any element of Somerset County's program by the 90th day

5
In this case, a county ordinance required the planning commission to act on a proposed subdivision plat within 45 days, if the plat was filed "in accordance with the regulations of the county planning commission." A developer complied with all the regulatory requirements and then sought mandamus when the board failed to act within 45 days. The board sought to defend its inaction by arguing that action was not required until after a public hearing, which the board had the power to schedule. The board's argument, if accepted, would have effectively allowed it to extend the 45-day review period indefinitely. The court rejected the board's argument: "It was certainly not the Legislative intent to empower the County Planning Commission to set up a procedural 'roadblock', and thus negate the clear intent of a Legislative enactment...." 253 N.Y.S. 2d at 46.

from the Commission's receipt of the program, which the Commission determined was complete. The Commission's disapproval after that date was ineffective, for the county's program had already been "deemed approved."

To be sure, this approval by operation of law is not identical to approval by the Commission. As we pointed out in Part I above, the Critical Area Law mandates local program compliance with elements in the statute and with the Commission's criteria. See NR §§8- 1808(b),(c), and (d) and 8-1809(i). There now exists no determination that the Somerset County program is "sufficient to meet the goals" of the Critical Area Law. NR §8-1808(c).

The Critical Area Law does not spell out the consequences of approval by default under NR §8-1809(d)(2). Certain procedural effects are clear: For example, the Commission may not itself adopt a program for Somerset County under NR §8-1810. Moreover, any modification in the county's program would be an "amendment" under NR §8-1809(g) and (h), rather than a "proposed change" under NR §8- 1809(e).

Apart from these specific matters, the statute is silent and thus leaves some important matters in doubt. If the Commission's attempted (albeit legally ineffective) partial disapproval of June 29, 1988, reflects instances in which Somerset County's program fails to meet statutory or regulatory requirements, actions taken under the program might well be subject to legal challenge in the future.6

We understand that the Commission and Somerset County have had discussions aimed at modifications in the county's program. The conclusion in this opinion is certainly not a reason for any lessening of this cooperative endeavor.

6
Under the Environmental Standing Act, any person "may bring and maintain an action for mandamus or equitable relief, including declaratory relief against any officer or agency of the State or political subdivision to perform a nondiscretionary ministerial duty imposed upon them under an environmental statute ... [or] regulations, ... or for their failure to enforce an applicable environmental quality standard for the protection of the air, water, or other natural resources of the State, as expressed in a statute ... [or] regulation ...." NR §1-503(b).

VII

Conclusion

In summary, it is our opinion that the Chesapeake Bay Critical Area Commission was authorized to screen the program submissions of local jurisdictions to determine whether a submission contained all elements required by statute and regulations. A proposed program that was incomplete was not subject to Commission review under NR §8- 1809(d). However, if a program was found to be complete, the Commission was required to act on the proposal within 90 days of its receipt or else the program was "deemed approved."

Because Somerset County's program was found to be complete and yet was not acted upon within 90 days of its receipt, that program has been approved by operation of law. However, this mode of approval by default entails uncertainty over whether the program has complied with all of the requirements of the statute and regulations. In light of the significant legal risk to which a noncomplying program would be exposed, we recommend that Somerset County and the Commission continue their efforts to agree on amendments to the program.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice