Can a Maryland county open a new street inside an incorporated town without the town's consent?

Plain-English summary

A developer building a subdivision just outside the Town of New Market, in Frederick County, wanted to extend a dead-end street inside the town to connect to a new county road, creating a through road. The county approved the subdivision plan, but the town's Mayor and Council refused to approve the street extension. The developer then asked the County Commissioners to approve the extension anyway, which raised the question the town's attorney brought to the Attorney General: can the county open a road inside an incorporated town over the town's objection?

The Attorney General concluded no. Maryland's county road statutes (Article 25) give county commissioners broad power to open, alter, and close roads, but a separate provision, Article 25, §15, extends that power to streets in "unincorporated towns and villages," a phrase the opinion read as showing the Legislature meant to exclude incorporated towns like New Market from the counties' road-opening authority. The opinion also leaned on the Maryland Constitution's home-rule article, which gives incorporated municipalities power over their own "affairs," and on a 1971 Court of Appeals case holding that only an incorporated town, not the county, could accept a street dedication once the town existed. Putting those pieces together, the AG concluded that the decision whether to open the disputed street belonged to the Town of New Market, not Frederick County.

Currency note

This opinion was issued in 1990. 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. Maryland's former Article 25 and Article 23A codes governing county and municipal powers have since been recodified into the Local Government Article.

Common questions

Does a Maryland county control all roads within its borders, even inside towns?
Not under this opinion. The AG read the county road-opening statutes as reaching unincorporated areas and, by an express statutory extension, unincorporated towns and villages, but not incorporated municipalities like New Market.

What made Article 25, §15 the key provision here?
It expressly extends county road powers to streets in "unincorporated towns and villages." The opinion reasoned that if the Legislature meant counties to have the same power over streets in incorporated towns, which have home-rule self-government, it would not have limited §15's reach to unincorporated ones.

Did the town's home-rule authority matter here?
Yes. The opinion pointed to Article XI-E of the Maryland Constitution, which lets incorporated municipalities legislate about their own "affairs," and to New Market's own charter power to establish and maintain its public ways, as support for the town's control over street decisions inside its boundaries.

Could the county still help pay for a road project inside the town?
The opinion noted that a separate provision, Article 25, §2A, lets counties spend highway funds on projects inside municipalities, but treated that as authority to cooperate on road projects the town approves, not as a grant of power to decide whether a road gets opened in the first place.

Background and statutory framework

Maryland gives counties without home rule, like Frederick County, their general road powers in Article 25 of the Maryland Code: §2(a) gives county commissioners control over public roads, streets, and alleys outside incorporated towns; §25(a) gives them power to open, alter, or close public roads; and §§135-152 set the petition procedure for road-opening decisions. Article 25, §15 extends "provisions of this Article relating to public roads" to streets in "unincorporated towns and villages," a phrase the opinion treated as the key textual signal that the Legislature did not mean to extend the same authority to incorporated municipalities.

Incorporated municipalities, by contrast, derive home-rule power over their own "affairs" from Article XI-E of the Maryland Constitution, and Article 23A gives them power to spend municipal funds for public purposes (§2(b)(2)) and to acquire property for public purposes (§2(b)(24)). The opinion found that New Market's own 1878 charter (Chapter 90, Laws of Maryland 1878) gave it authority over its public ways, evidencing the Legislature's intent that the town, not the county, controls street decisions within its boundaries.

Older Court of Appeals cases (Greenland v. County Comm'rs of Harford Co.; Gaither v. Watkins) had described county commissioners as having "exclusive jurisdiction" over road openings, but the AG read those cases as addressing only the limited judicial review available from a county's road-opening decisions in unincorporated areas, not whether that jurisdiction reaches inside municipalities. The opinion found the 1971 case Town of Glenarden v. Lewis more directly on point: it held that once a town incorporated, only the town, not the county, could accept a dedicated street right-of-way within its boundaries. Combined with Article 23A, §2B(a)(2)'s general rule that county legislation yields to conflicting municipal legislation, the opinion concluded that Frederick County could not open the disputed street without New Market's consent.

Citations and references

Statutes:

• Article XI-E, §§1, 3 of the Maryland Constitution (municipal home rule)
• Article 25, §§2(a), 2A, 3(o)(1), 15, 25(a), 135-152 of the Maryland Code (county road powers)
• Article 23A, §§2(b)(2), 2(b)(24), 2B(a)(2), 10 of the Maryland Code (municipal powers)

Cases:

• Town of Glenarden v. Lewis, 261 Md. 1 (1971) (only the incorporated town, not the county, could accept a street dedication within its boundaries)
• Greenland v. County Comm'rs of Harford Co., 68 Md. 59 (1887); Gaither v. Watkins, 66 Md. 576 (1887) (county commissioners' "exclusive jurisdiction" over road openings, addressed in the context of judicial review)
• Campbell v. Mayor and Council of Annapolis, 289 Md. 300 (1981) (model charter provisions are not themselves a grant of power)
• Mauck v. Bailey, 247 Md. 434 (1967) (a landowner's dedication offer may be revoked until accepted)

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/1990/Volume75_1990.pdf (this opinion appears at printed pages 353-359 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.

Local Government -- Municipalities -- Counties -- Road Within Incorporated Municipality May Not Be Opened By County Over Objection of Municipality

May 31, 1990

David O. Godwin, Jr., Esquire

On behalf of the Town of New Market, your predecessor as Town Attorney requested an opinion on whether the County Commissioners of Frederick County have power to open a road within the corporate boundaries of the town without the town's consent.

For the reasons given below, we conclude that a road within the town's boundaries may be opened only with the town's consent.

I

Background

The developers of a subdivision located in Frederick County immediately outside the corporate boundaries of New Market wish to extend a dead-end street in the town to connect with a road that is presently under construction in the county, thereby creating a through road in the subdivision. The county has approved the subdivision plan. However, the Mayor and Council of the town refused to approve the proposed street extension within the town.

The developers then petitioned the County Commissioners for approval of the street extension. If the Commissioners approve, the developers propose to construct the extension and dedicate it to the county. This office's opinion was requested to resolve the question that arose between the county and the town regarding the county's power to override the town's decision not to permit the street construction.

II

Power Over Roads

Incorporated municipalities have certain home rule powers deriving from Article XI-E of the Maryland Constitution, including the power to legislate about their "affairs." Article XI-E, §3. See generally Moser, County Home Rule -- Sharing the State's Legislative Power with Maryland Counties, 28 Md. L. Rev. 327, 335 (1968). Cf. 62 Opinions of the Attorney General 275, 310 n.26 (1977) (comparing legislative authority of municipalities and code home rule counties). As we discuss in more detail below, the decision whether to open a road is generally within the scope of a municipality's powers. 10A McQuillan, Municipal Corporations §30.21, at 243 (3d ed. 1990).

However, the General Assembly retains the power to legislate about municipal affairs, if it does so by legislation applicable to all municipalities. Article XI-E, §1.[1] Hence, we must consider whether the General Assembly, by public general law, has vested in counties like Frederick County power to open a road within a municipality, notwithstanding the municipality's decision not to open the road.

The general powers of counties without home rule, like Frederick County, are set out in Article 25 of the Maryland Code. That article includes a number of provisions relating to road construction and maintenance. Article 25, §2(a) provides:

    [County Commissioners] shall in their respective counties have control over all the public roads, streets and alleys, except in incorporated towns in their respective counties, and make such rules and regulations for repairing, cleaning, mending, and perfecting the same, and providing for the payment of the cost of the same, as they may deem necessary

Article 25, §2A provides:

    Upon the adoption of a resolution stating that a county responsibility or purpose will be served, the county commissioners shall also in their respective counties have the power to expend from any highway funds under their control and jurisdiction such sums as they may deem necessary to pay all or a portion of the cost of highway projects within municipal corporations ....

Article 25, §3(o)(1) empowers county commissioners "[t]o provide for grading, paving, regrading, repaving, curbing, recurbing, or repairing any road or sidewalk now or hereafter condemned, ceded, opened, widened, extended or straightened as public property ...." Article 25, §15 in plain terms gives county commissioners jurisdiction over streets in some towns: "All the provisions of this Article relating to public roads or roads shall be applicable to streets, lanes, and alleys in unincorporated towns and villages." Article 25, §25(a) expressly gives county commissioners the "power to open, alter or close any public road or roads in their respective counties." Under Article 25, §135, "[a]ll applications for opening, altering or closing roads shall be by petition to the county commissioners," and §§136 through 152 establish the procedures for deciding those petitions.

The interplay of these various provisions is not altogether clear. Further, we are cognizant that, in a situation like the present one, whichever political subdivision has the ultimate decisionmaking power may, by its decision, affect the development plans of the other.

A reasonable argument can be made that the "control" over roads, streets, and alleys conferred by §2(a) must be read with reference to the rulemaking power also conferred by the same clause of that provision, that is, as control over "repairing, cleaning, mending and perfecting" the roads, streets, and alleys. Hence, that provision's exception for streets and alleys in incorporated towns prevents county commissioners from exercising in those towns only that limited form of control. Because none of the provisions that confer or refer to county commissioners' power to open roads contain a similar exception for roads in incorporated towns, those provisions could be thought to apply within as well as without municipal boundaries.

Indeed, it may be argued that §2A's authorization of the expenditure of county highway funds for projects inside municipalities is an affirmative grant to county commissioners of the authority to determine whether and where streets should be built. Thus, incorporated municipalities have power to clean, maintain, and improve their streets, but county commissioners would have "exclusive jurisdiction" to determine whether to open new streets in those municipalities. See Greenland v. County Comm'rs of Harford Co., 68 Md. 59, 62, 11 A. 581 (1887); Gaither v. Watkins, 66 Md. 576, 580, 8 A. 464 (1887).[2]

In our view, however, the better view of the pertinent provisions, taken as a whole, is that county commissioners are not authorized to compel a road opening within a municipal corporation. First, §15's express extension of all the powers of county commissioners with respect to roads to include streets in "unincorporated towns and villages" evidences the legislative intent that county commissioners do not have those powers with respect to streets in incorporated municipalities. That provision was originally enacted by Chapter 230 of the Laws of Maryland 1914 to follow immediately after and evidently to clarify §2. Had the General Assembly intended county commissioners to have the same powers with respect to streets in incorporated municipalities, which have the power of self-government, as they have in unincorporated settlements that have no formal legal existence, the General Assembly would not have expressly limited the reach of §15 as it did. Hence, §25's grant of authority to county commissioners to open, alter, and close roads and the provisions regarding the procedure for acting on petitions to open roads set out in §§135 through 152 are best read as applicable only outside the boundaries of municipal corporations.

In this regard, we note that §2A's authorization for county commissioners to pay all or part of the costs of highway projects within municipal corporations is similar to §219's authorization for counties to provide various forms of in-kind assistance to other political subdivisions. Thus, it permits the counties to cooperate with incorporated municipalities in the planning and construction of roads and streets whenever appropriate. However, it was not intended to expand the geographic scope of county commissioners' jurisdiction over street-opening decisions beyond that expressed in §15. Nor are the statements in Greenland and Gaither as to the exclusivity of that jurisdiction to the contrary, for those statements were made in determining the power of courts to review county commissioners' decisions made in the exercise of their jurisdiction and did not address whether that jurisdiction extends to streets in municipal corporations.

Moreover, the lack of a provision in Article 23A expressly conferring upon municipal corporations the power to open streets, in contrast with the detailed provision of Article 25, merely reflects the contrast between enactments regarding municipalities having the constitutional power of self-rule and those regarding counties without that power. Thus, the express power of municipalities to "expend municipal funds for any purpose deemed to be public and to affect the safety, health, and general welfare of the municipality and its occupants" under Article 23A, §2(b)(2) and their power to acquire property needed for public purposes under Article 23A, §2(b)(24) are broad enough to include the power to open streets. Indeed, the inclusion of authority to "do whatever [the municipality] deems necessary to establish, operate, and maintain in good condition the public ways of the town" in the model municipal corporation charter codified in Article 23B evidences the General Assembly's view that this is a power appropriately exercised by incorporated municipalities.[3] More particularly, the inclusion of power to open and close streets in the original charter of the Town of New Market evidenced the General Assembly's intention that thenceforth the town, not the county, should take these actions within the town's corporate boundaries. See Chapter 90, Laws of Maryland 1878 (incorporating Town of New Market).

The view that we take of this question is substantially reinforced by Town of Glenarden v. Lewis, 261 Md. 1, 273 A.2d 140 (1971). In that case, the Court of Appeals considered whether certain landowners' offer to dedicate a street right of way to the public had been accepted, so that the landowners could not alter their subdivision plans to return the right of way to private ownership without the consent of the appropriate government.[4] The court began its consideration of that question by identifying the governmental authority that might have accepted the dedication:

    From 1922 until 1961, the Prince George's Board of County Commissioners, who have now consented to the abandonment could have accepted this offer, but failed to do so. After that date ..., the town of Glenarden, created by charter in 1961, obtained the right to accept the dedication of Polk Avenue since it was within its corporate boundaries.

261 Md. at 4. In our view, this clear statement that the county had no power to accept an offered dedication of a street right of way within the boundaries of a municipal corporation strongly supports the conclusion that the county likewise could not open a street within the boundaries of the municipal corporation. Hence, we believe that the decision whether to permit the street extension at issue here rests with the Mayor and Council for the Town of New Market, not with the County Commissioners of Frederick County.[5]

III

Conclusion

In sum, it is our opinion that the County Commissioner of Frederick County do not have authority to open a street within the corporate boundaries of the Town of New Market without the consent of the town.

                                      J. Joseph Curran, Jr.
                                      Attorney General

                                      C. J. Messerschmidt
                                      Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] "[T]he General Assembly shall not pass any law relating to the ... affairs of ... municipal corporations ... which will be special or local in its terms or in its effect, but the General Assembly shall act in relation to the ... 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 [by law]." The General Assembly has provided for only a single class of municipal corporations. Article 23A, §10 of the Maryland Code.

[2] In each of those cases, the complainant sought to overturn county commissioners' decisions on petitions for road openings. The Court of Appeals held that the procedural irregularities complained of did not deprive the commissioners of jurisdiction and that their actions therefore were subject to only limited judicial review by the circuit court, with no right of appeal from that court's decision. In each case, the Court of Appeals commented that "[t]he County Commissioners have exclusive jurisdiction in regard to the opening of public roads." Id.

[3] However, the provisions of Article 23B are not themselves a grant of power to any municipality. Campbell v. Mayor and Council of Annapolis, 289 Md. 300, 310, 424 A.2d 738 (1981).

[4] A complete dedication requires governmental acceptance of the landowner's offer evidenced by a deed or other record; by opening, grading, or repairing at public expense; by long continued public use of the road; or by a statute or other official action. 261 Md. at 4-5. Until the dedication has been accepted, the landowner's offer may be revoked at any time. Mauck v. Bailey, 247 Md. 434, 443-44, 231 A.2d 685 (1967).

[5] We find some additional indirect support for this conclusion in Article 23A, §2B(a)(2), which provides that, with limited exceptions, "legislation enacted by a county does not apply in a municipality located in such county if the legislation ... [c]onflicts with legislation of the municipality enacted under a grant of legislative authority provided either by public general law or its charter ...." Because the county commissioners' decision to approve a road opening is not legislation, that provision is not directly applicable here. Nonetheless, we think that it indicates the General Assembly's intent regarding the relationship between a county and a municipality: in the absence of a state mandate or other compelling reason for the contrary result, within a municipality the municipality's decisions take precedence over those of the county.