Zoning and Planning Statutory Construction – Boards of Appeals –Whether Alternate Members of Boards of Appeals Under § 4-302 of The Land Use Article Must Have Three-Year Terms – Whether a Locality is Required to Designate an Alternate Member ( 2018 )

ZONING AND PLANNING
STATUTORY CONSTRUCTION – BOARDS OF APPEALS –
WHETHER ALTERNATE MEMBERS OF BOARDS OF APPEALS
UNDER § 4-302 OF THE LAND USE ARTICLE MUST HAVE
THREE-YEAR TERMS – WHETHER A LOCALITY IS
REQUIRED TO DESIGNATE AN ALTERNATE MEMBER.
August 23, 2018
The Honorable Bridget Donnell Newton
Mayor, City of Rockville
On behalf of the City of Rockville, you have asked for our
opinion on two questions concerning alternate members of local
zoning boards of appeals under § 4-302 of the Land Use Article.
That section provides that a local board of appeals must consist of
“at least three members” appointed by “the local executive and
confirmed by the legislative body,” Md. Code Ann., Land Use
(“LU”) § 4-302(a), (b) (2012 & 2017 Supp.), and that the
“legislative body shall designate one or more alternate members for
the board of appeals who may sit on the board when another
member of the board is absent or recused.” LU § 4-302(f)(1). The
term for a “member of a board of appeals is 3 years,” but the statute
does not explicitly provide that this three-year term applies to a
board’s alternate members. Your questions are:
1. May the Mayor and Council appoint an alternate
member of the board of appeals for a one-year
term?
2. Does the law require the Mayor and Council to
appoint an alternate member?
In our opinion, the term of an alternate member of a board of
appeals is the same as that of a regular member—three years—and
therefore a locality may not designate an alternate member to serve
for a one-year term. We further conclude that the statute requires
legislative bodies to designate an alternate member; that is to say,
it is the legislative body’s duty to do so, not simply a matter of
discretion.1
1
In keeping with our procedures for addressing an opinion request
from a local government, you provided the City Attorney’s analysis of
these questions. The City Attorney advised that the term for the
designated alternate member should be the same as that for the appointed
members because the statute does not provide for any other length of
3
4 [103 Op. Att’y
I
Background
A. Statutory Background
The Land Use Article requires that Maryland municipalities
and certain counties “shall provide for the appointment of a board
of appeals.” LU § 4-301(a).2 Boards of appeals exist to “hear and
decide appeals” on zoning matters within the local jurisdiction as
well as, in some cases, to render decisions on special exceptions
and variances from local zoning laws. LU § 4-305. As for the
membership of a board of appeals, § 4-302 provides in relevant
part:
(a) A board of appeals consists of at least three
members.
(b) A member of a board of appeals shall be
appointed by the local executive and confirmed by
the legislative body.
(c) The term of office of a member of a board of
appeals is 3 years.
***
(e) The appointing authority shall appoint a new
member to fill the unexpired term of any member
who leaves a board of appeals.
(f) (1) A legislative body shall designate one or more
alternate members for the board of appeals who may
term. She further advised that, although the term “shall” usually creates
a duty to comply with a statutory provision, the absence of any penalty
for failure to designate an alternate member means that the Mayor and
Council are not required to designate an alternate member. As we
explain below, we agree with the City Attorney’s conclusion on the
former question but disagree with her latter conclusion. We find instead
that the statute imposes a duty on legislative bodies to designate an
alternate member to the board of appeals.
2
Charter counties and some code counties are not subject to these
provisions and instead are governed by separate provisions in Title 10 of
the Local Government Article. See LU §§ 1-401, 1-402; see also Md.
Code Ann., Local Gov’t §§ 10-305, 10-324 (2013 Repl. Vol.). This
opinion interprets LU § 4-302 and therefore does not decide any issues
related to those counties governed by other provisions.
Gen. 3] 5
sit on the board when another member of the board
is absent or recused.
(2) When an alternate member is absent or
recused, the legislative body may designate a
temporary alternate.
LU § 4-302.
The Rockville City Code provides that the Mayor appoints
three members and one alternate member to the board of appeals,
and the City Council confirms them. Rockville City Code §
25.04.03.c (2018).3 The City Code expressly sets the term for
“member[s]” as three years. Id.
B. Legislative History
The statute that is now § 4-302 of the Land Use Article was
first enacted in 1927, when the General Assembly granted zoning
authority to Baltimore City and to those municipalities that
3
In contrast to § 4-302 of the Land Use Article, the City Code
provides for the appointment of alternate members through the same
process of mayoral nomination and council confirmation that applies to
regular members, rather than leaving the designation of alternate
members solely to the City Council. However, because the Mayor of
Rockville is a member of the Council, see Charter of the City of
Rockville, Art. II, there may not be much practical difference between
those two methods of selection, and we need not decide here whether the
City Code provision should be amended to change the designation
process. Section 4-302 was apparently based on an underlying
assumption that the executive authority and legislative authority of a
municipality always reside in separate offices. Thus, the statutory
scheme overlooks the fact that some municipalities have a single
governing body that holds all of the authority of the municipality. In
fact, as Rockville’s charter demonstrates, the mayor-and-council form of
municipal government often does not separate the executive and
legislative functions; the mayor acts as a member of the council. See 73
Opinions of the Attorney General 264, 267-68 (1988) (noting that Ocean
City’s Council holds all of the legislative and executive powers, except
for a mayoral veto); see also Charter of the City of Rockville, Art. I and
II (body corporate is “The Mayor and Council of Rockville,” and the
legislative powers of the City are vested in a council that consists of “a
Mayor and four Councilmembers”). Although the statute does not
recognize this distinction between differing forms of municipal
government, see LU § 1-101(g)(2), the distinction does not affect our
analysis.
6 [103 Op. Att’y
contained more than 10,000 inhabitants. See 1927 Md. Laws, ch.
705 (codified in Article 66B § 1). As enacted, that law authorized
the local legislative body of one of those municipalities to appoint
a board of appeals consisting of five members, each of whom
would serve a four-year term. 1927 Md. Laws, ch. 705 at 1610
(codified in Article 66B § 7). Several years later, Article 66B
eliminated the minimum-inhabitant threshold, thus extending
zoning authority to all municipalities. 1933 Md. Laws, ch. 599 at
1332 (codified in Article 66B § 21). This amended statute provided
for three members on the board of appeals, each serving three-year
terms, to be appointed by the mayor of the locality and confirmed
by the council. Id. at 1334 (codified in Article 66B § 22).
As relevant here, the provision for an alternate member to sit
on the board of appeals first appeared in 1963:
The Council shall designate one alternate
member for the Board of Appeals who may be
empowered to sit on the Board in the absence
of any member of the Board; and when the
alternate is absent, the Council may designate
a temporary alternate.
1963 Md. Laws, ch. 556 at 1221 (codified in Article 66B § 22).
Under the new law, instead of the two-step process of appointment
and confirmation that applied to permanent members, the council
alone was given the power to “designate” the alternate member
and, when the alternate member was unavailable, a temporary
alternate. The law did not specify any consequence for failing to
designate an alternate, nor did it contain any new provision
specifically addressing the alternate member’s term of service.
Since 1963, the General Assembly has undertaken two
comprehensive revisions of Article 66B and also made additional
changes to the statute. The first comprehensive revision occurred
in 1970, in response to the recommendations of a study commission
created by the General Assembly to examine the State’s planning
and zoning laws. See Final Report, Maryland Planning and Zoning
Law Study Comm’n (Dec. 1969). Among other changes, the bill
added a definition for “local executive” that included the “County
Executive or Executive Head, Mayor, or similar term.” 1970 Md.
Laws, ch. 672 at 1881 (codified in Article 66B §1.00). The bill
also replaced references to the “Council” with the “local legislative
body.” Id. at 1902. These changes clarified that, regardless of the
differing forms of local government, the local executive would
appoint the permanent board members and the local legislative
body would confirm the appointment. The 1970 revision did not
Gen. 3] 7
alter the method for designating the alternate member; rather, that
authority remained with the legislative body. Id. at 1903.
Before the next comprehensive revision of the statutory
scheme, the General Assembly made other changes to what is now
§ 4-302. As relevant here, in 1994, the provisions concerning the
alternate member of the board were moved to a paragraph separate
from the one addressing the temporary alternate. See 1994 Md.
Laws, ch. 54 at 1090 (codified in Article 66B § 4.07(b)).4 Then, in
2009, the General Assembly created a training requirement for
board members. See 2009 Md. Laws, ch. 180 (codified in Article
66B § 3.02; now codified in LU § 1-206). Under that requirement,
members must complete an education course on various zoning
topics within six months of their appointment to the board.
LU § 1-206(b).
The second comprehensive revision of the planning and
zoning laws occurred in 2012, based on the work of the Land Use
Article Review Committee of the Department of Legislative
Services. The Committee’s goal in creating the Land Use Article
was to modernize and clarify the applicable land use provisions,
without making substantive changes to the law. See 99 Opinions
of the Attorney General 152, 160 (2014) (citing Summary Report
on Chapter 426 of the Acts of 2012, Land Use Article at 1). The
2012 enactment of the Land Use Article, therefore, incorporated
provisions of the former Article 66B and former Article 28 into one
volume “without substantial change,” and renumbered the sections.
See 2012 Md. Laws, ch. 426. As a result, the provision governing
the membership of the board of appeals changed from § 4.07 of
former Article 66B to § 4-302 of the new Land Use Article.
Finally, one further change to the statute stemmed from a
Revisor’s Note to the 2012 enactment. That note suggested that,
although the language of the newly enacted § 4-302 was derived
without substantial change from § 4.07 of former Article 66B, the
General Assembly might want to consider a substantive change
regarding the “permanent” alternate members:
[O]nly one “permanent” alternate member is
authorized, although there is no explicit limit
4
In 2000, the phrase “be empowered to” sit on the board of appeals
was removed from the statute, and the Legislature substituted the current
language stating that an alternate member “may sit” on the board when
another member is absent or recused. 2000 Md. Laws, ch. 426 at 2331.
8 [103 Op. Att’y
on the number of temporary alternate
members who may be appointed. Because
members of boards of appeals must complete
an education course under § 1-206 of this
article, the General Assembly may wish to
authorize a legislative body to appoint more
than one “permanent” alternate member in
order to ensure that an adequate number of
participating members are available in case of
multiple recusals without requiring training of
temporary alternate members who may not
otherwise be needed.
2012 Md. Laws, ch. 426 at 2252. Following this recommendation,
the General Assembly amended § 4-302 in 2013 to authorize a local
legislative body to designate one “or more” alternate members to
the board of appeals. 2013 Md. Laws, ch. 674 at 5682.
II
Analysis
Your questions require us to construe § 4-302 of the Land Use
Article as it pertains to alternate members of boards of appeals.
“The cardinal rule of statutory construction is to ascertain and
effectuate the intent of the General Assembly.” Bellard v. State,
452 Md. 467, 481 (2017) (quoting Wagner v. State, 445 Md. 404,
417 (2015)). To do so, “we look first to the language of the statute,
giving it its natural and ordinary meaning,” and “[w]hen the
statutory language is clear, we need not look beyond the statutory
language to determine the General Assembly’s intent.” Id.However, if the legislative intent cannot be readily discerned from
the statutory language itself, “we may, and often must, resort to
other recognized indicia.” Id. Those indicia include, among other
things, the broader statutory structure, the legislative history, the
purpose behind the statute, and “the relative rationality and legal
effect of various competing constructions.” Id. at 482.
A. Whether an Alternate Board Member May Be Designated
for a One-Year Term
Your first question is whether alternate members of boards of
appeals, like regular members of the board, have a fixed three-year
term, or whether a local legislative body may instead designate an
alternate member for a shorter, one-year term. To answer your
question, we start with the statutory language. See Bellard, 452
Md. at 481. Here, the text of the statute provides that “[t]he term
Gen. 3] 9
of office of a member of a board of appeals is 3 years.” LU § 4-
302(c). Although the statute does not expressly state that this three-
year term applies to alternate members, the use of the word
“member” suggests that the same three-year term should apply to
“alternate members,” because they too are “members” of the board.
Indeed, the statute itself specifically refers to alternate members as
“members.” See LU § 4-302(f)(1) (“A legislative body shall
designate one or more alternate members . . . who may sit on the
board when another member of the board is absent or recused.”
(emphasis added)).
That said, read in context, the order in which the provisions
appear in the statute creates at least some ambiguity as to whether
the General Assembly intended the three-year-term in § 4-302(c)
to apply to alternate members. See, e.g., Kaczorowski v. Mayor
and City Council of Baltimore, 309 Md. 505, 514 (1987)
(explaining that the plain language of a statute must always be read
in light of “the context in which it appears” (citing Guardian Life
Ins. Co. of America v. Insurance Comm’r of State of Md., 293 Md.
629, 642 (1982))). Because § 4-302(c) is located immediately after
the subsections of the statute that govern the regular members of
the board—but well before the subsection that governs the board’s
alternate members—a court might read § 4-302(c) as applying only
to the regular members, not the alternate members.
Given this ambiguity, we cannot rely solely upon the statute’s
plain language. Instead, we must also consider the broader
statutory context and “seek to reconcile and harmonize the parts of
[the] statute, to the extent possible consistent with the statute’s
object and scope.” Lockett v. Blue Ocean Bristol, LLC, 446 Md.
397, 422 (2016) (quoting Lockshin v. Semsker, 412 Md. 257, 276
(2010)). In our view, both the context of the statute and the
purposes behind the statute confirm that the three-year term in
§ 4-302(c) is supposed to apply to alternate members of the board.
Turning first to context, we note that the statute distinguishes
between an “alternate member,” who is expressly referred to as a
member, and a “temporary alternate,” who is not. LU § 4-
302(f)(2). Alternate members and temporary alternates also have
different roles on the board. Whereas an alternate member “may
sit on the board when another member of the board is absent or
recused,” LU § 4-302(f)(1), a temporary alternate may be
designated only “[w]hen an alternate member is absent or recused,”
LU § 4-302(f)(2). Consistent with these differing roles, the statute
specifically labels temporary alternates as “temporary”—a
10 [103 Op. Att’y
difference that is meaningful only if the tenure of an alternate
member is not temporary but fixed. See, e.g., Gillespie v. State,
370 Md. 219, 222 (2002) (“We interpret statutes to give every word
effect, avoiding constructions that render any portion of the
language superfluous or redundant.”); see also Revisor’s Note to
2012 Md. Laws, ch. 426 at 2252 (characterizing alternate members
of a board of appeals as “permanent” in juxtaposition to temporary
alternates).
Based on these context clues, which indicate that an alternate
member’s term is fixed, the most natural reading of the statute is
that alternate members are governed by the only fixed term
provided for in the statute, namely, the three-year term in
§ 4-302(c). Although in theory the General Assembly could have
granted localities the discretion to create longer or shorter terms of
their own choosing for alternate members, we suspect that the
Legislature—if it had intended that approach—would have done so
more expressly. After all, if a locality had the discretion to fix its
own terms, it could presumably create a term of 6 months or one of
10 years, neither of which seems consistent with having regular
members who serve three-year terms.
This conclusion finds further support from another statute in
the Land Use Article. That statute, which establishes Cecil
County’s board of zoning appeals, is structured in such a way as to
make clear that the three-year term for members applies to both
regular and alternate members:
(a) Notwithstanding § 4-302 of this article, the
board of appeals consists of five regular
members and one alternate member.
(b)(1) The term of a member of the board of
appeals is 3 years.
LU § 9-704(a), (b).5
5
Indeed, Cecil County’s ordinance governing its board of appeals
explicitly reflects this reading of the statute:
Pursuant to [LU § 9-704], a Board of Appeals is
hereby established, which shall consist of five (5)
members to be appointed by the County
Executive and be approved by the County
Council. The County Executive shall designate
one (1) alternate member for the Board of Appeals
Gen. 3] 11
Given that the General Assembly intended that the same
three-year term would govern both regular and alternate members
of Cecil County’s board of appeals, we think it likely the
Legislature intended that regular and alternate members would
have the same term under § 4-302 as well. See, e.g., Sullivan v.
Stroop, 496 U.S. 478, 489 (1990) (explaining that “identical words
in two related statutes . . . are intended to have the same meaning”).
Although one might argue that the Legislature “knew how” to
structure the statute to make clear that alternate members had the
same term as regular members and consciously “chose not to” do
so here, e.g., Willis v. Montgomery County, 415 Md. 523, 547 n.13
(2010), we see no obvious reason why the General Assembly
would have intended a different result for Cecil County’s board of
appeals than for those boards of appeals established under § 4-302.6
Thus, applying the three-year term to alternate members under
§ 4-302 is more consistent with the broader statutory context.
Similarly, turning to the purpose of the statute, we conclude
that a three-year term for alternate members is more consistent with
the statutory purpose for creating an alternate member. See, e.g.,
Manger v. Fraternal Order of Police, Mont. County Lodge 35, Inc.,
227 Md. App. 141, 147 (2016) (“Legislative purpose, gleaned
either from the text or from external sources, informs our reading
of the statute.”). The purpose of having an alternate member is to
enable the board to perform its work in the event that a regular
. . . . Each member, including the alternate, shall
serve three (3) year terms.”
Cecil County Zoning Ord., Art. XVI, Part II, sec. 298 (2011) (emphasis
added and formatting altered).
6
Moreover, in a host of other contexts, the Legislature has
suggested, either through express statutory language or by implication,
that alternate members of boards or commissions have the same terms as
regular members. See, e.g., Md. Code Ann., Elec. Law § 2-201 (county
boards of elections); Md. Code Ann., Tax-Prop. § 3-103 (property tax
assessment appeal boards); Md. Code Ann., Alcoholic Bev. § 14-202(Calvert County board of license commissioners); Md. Code Ann.,
Envir. § 5-304 (Commission on the Potomac River Basin). Indeed,
although we have found other statutes that have the same ambiguity as
LU § 4-302, we have not found a single instance in which the Legislature
explicitly provided that alternate members have a different term than
regular members. This suggests to us that, at least generally speaking,
when the Legislature creates alternate or substitute members for boards
and commissions, it intends the alternate members to have terms of the
same length as the regular members.
12 [103 Op. Att’y
member “is absent or recused.” LU § 4-302(f)(1). Requiring the
same three-year term for alternate members as for regular members
promotes this purpose by increasing the probability that an
experienced alternate will be available to stand in as a substitute on
short notice.
Finally, a three-year term for alternate members better
accords with the training regime created by the General Assembly.
Under § 1-206(b) of the Land Use Article, board members must
complete an education course on zoning and other land use matters,
and the legislative history of LU § 4-302 demonstrates the
importance of this training requirement as applied to alternate
members. In light of that statutory training requirement, the
Revisor’s Note for the 2012 revisions to § 4-302 recommended that
the General Assembly authorize “more than one ‘permanent’
alternate member in order to ensure that an adequate number of
participating members are available in case of multiple recusals
without requiring training of temporary alternate members who
may not otherwise be needed.” 2012 Md. Laws, ch. 426 at 2252.
The General Assembly then amended § 4-302 to provide for one
“or more” alternate members. 2013 Md. Laws, ch. 674 at 5682.
As the Revisor’s Note indicates, an alternate member has a
permanence that a temporary alternate lacks, and it is therefore
important to have trained “alternate members” at the ready to
substitute for regular members. A three-year term for alternative
members, as opposed to a one-year term, promotes this vision of
judicious training by increasing the return on educational
investment in an alternate member.
In sum, we conclude that the three-year term in § 4-302(c)
applies to both regular members and alternate members of the
board. The statute does not provide for any other term, and
applying that term to alternate members is consistent with the
language of the statute, with an alternate member’s status as a
“member” of the board, with the statutory context, and with the
statutory purpose.
B. Whether the Mayor and Council Must Designate at Least
One Alternate Board Member
Turning to your second question, we address whether § 4-302
of the Land Use Article requires a legislative body to designate at
least one alternate member, or whether the decision to have an
alternate member is left to the locality’s discretion. We again begin
our analysis with the statutory language. The statute at issue here
states that “[a] legislative body shall designate one or more
alternate members for the board of appeals,” LU § 4-302(f)(1)
Gen. 3] 13
(emphasis added), and use of the word “shall” in a statute is
generally understood to impose a requirement, not to permit the
exercise of discretion. See, e.g., Prince George’s County v. Vieira,
340 Md. 651, 660 (1995) (explaining that “shall” is ordinarily
“regarded as a direct indication that the Legislature directed that
certain conduct is required” (emphasis omitted)); Foy v. Baltimore
City Det. Ctr., 235 Md. App. 37, 60-61 (2017) (“[O]rdinarily, the
word ‘shall,’ unless the context within which it is used indicates
otherwise . . . denotes an imperative obligation inconsistent with
the idea of discretion.” (quoting Bright v. Unsatisfied Claim and
Judgment Fund Board, 275 Md. 165, 169 (1975))); Columbia Rd.
Citizens’ Ass’n v. Montgomery County, 98 Md. App. 695, 700-01
(1994) (“The word ‘shall’ in a statute is presumed . . . [to] denot[e]
an imperative obligation inconsistent with the exercise of
discretion.” (internal quotation marks and citation omitted)); see
also Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,
1977 (2016) (“Unlike the word ‘may,’ which implies discretion,
the word ‘shall’ usually connotes a requirement.”).
Although this presumption may sometimes be overcome by
the statutory context, “nothing in the context” of this statute
indicates that the word should be read in anything other than its
ordinary sense as imposing a requirement. See Lamone v. Lewin,
__ Md. __, No. 85, Sept. Term 2017, 2018 WL 3641867 at *8 (Md.
July 31, 2018) (holding along similar lines that “nothing in the
context” of a statute providing that a candidate’s name “shall
appear” and “shall remain” on a ballot after a certain deadline gave
the State Board of Elections discretion to remove the name after
that deadline). The context here strongly suggests that the word
“shall” should be given its ordinary meaning, because the statute
provides that the local legislative body shall designate at least one
alternate member, but may designate a temporary alternate.
LU § 4-302(f)(1), (2). Indeed, when “a statute distinguishes
between ‘may’ and ‘shall,’ it is generally clear” that the word
“shall” imposes a requirement or a “duty.” Kingdomware Techs.,
Inc., 136 S. Ct. at 1977; see also Center for Biological Diversity v.
United States Fish & Wildlife Serv., 450 F.3d 930, 935 (9th Cir.
2006) (“When ‘may’ and ‘shall’ are both used in a statute, ‘the
normal inference is that each is being used in its ordinary sense—
the one being permissive, the other mandatory.’” (quoting Haynes
v. United States, 891 F.2d 235, 239-40 (9th Cir. 1989))). If the
Legislature had intended to give the local government discretion to
decide whether to designate an alternate member, it presumably
would have used the word “may” as it did in the next subsection
governing temporary alternates.
14 [103 Op. Att’y
Reading § 4-302(f)(1) as a requirement also furthers the
purpose of the provision: to ensure the continued operations of the
board when regular members are absent or recused. To be more
specific, requiring a locality to designate at least one alternate
member helps prevent situations in which the board cannot act at
all, either because it does not have a quorum or because the
remaining members are deadlocked. That a local government has
a duty—as opposed to discretion—to designate at least one
alternate member thus best ensures the efficiency of the board. In
our view, therefore, the statute requires local legislative bodies to
designate at least one alternate board member, rather than leaving
that decision to their discretion.7
Although the City Attorney noted in her analysis that
§ 4-302(f)(1) does not provide any express penalty for a failure to
designate an alternate member, the lack of a penalty in a statute
does not necessarily mean that compliance with the statute is
discretionary. Instead, the lack of a statutory penalty is relevant in
determining what sanction, if any, a court might impose if the
“statutory command” is not followed. Woodfield v. West River
Improvement Ass’n, 395 Md. 377, 388-89 (2006). In that context,
when determining the proper sanction for noncompliance, “courts
often speak in terms of whether [statutory commands] are
‘mandatory’ or merely ‘directory.’” Id. at 388 (quoting Tucker v.
State, 89 Md. App. 295, 297-98 (1991)). “[I]f the command is
‘mandatory,’ some fairly drastic sanction must be imposed upon a
finding of noncompliance, whereas if the command is ‘directory,’
noncompliance will result in some lesser penalty, or perhaps no
penalty at all.” Id. (quoting Tucker, 89 Md. App. at 298); see also
67 Opinions of the Attorney General 203, 209 (1982) (explaining
that, generally speaking, “a provision is mandatory when failure to
7
It is also worth noting that, in the land use context, local
governments “are limited to the powers granted to them by the State,”
County Council of Prince George’s County v. Zimmer Dev. Co., 444 Md.
490, 504 (2015), and thus “[w]here the statute sets forth the procedure to
be followed, no governing body, or subdivision thereof, has the power to
adopt any other method of procedure.” State Comm’n on Human
Relations v. Baltimore City Dep’t of Recreation and Parks, 166 Md.
App. 33, 45 (2005) (internal quotation marks and citation omitted); see
also 62 Opinions of the Attorney General 490, 494 (1977) (“[W]hen a
local government exercises powers and duties pursuant to an enabling
law of the General Assembly, the local government must follow the
methods, procedures and substance of the State enabling law.”).
Although we need not decide in this opinion whether that means “shall”
always creates an obligatory duty whenever used in the Land Use
Article, this principle suggests that the Legislature intended that
localities abide by the statute.
Gen. 3] 15
follow it renders the proceedings to which it relates illegal and
void; it is directory when the failure to follow it does not invalidate
the proceedings” (quoting Borough of Pleasant Hills v. Carroll,
125 A.2d 466, 469 (Pa. Super. 1956)).
Under this mandatory/directory test, the word “shall” creates
a presumption that compliance is “mandatory” and that failure to
comply will invalidate the proceedings or result in some other
drastic sanction. Woodfield, 395 Md. at 388; see also, e.g., State v.
Rice, 447 Md. 594, 624-25 (2016); Maryland State Bar Ass’n, Inc.
v. Frank, 272 Md. 528, 533 (1974); Foy, 235 Md. App. at 60-61,
68. However, “the use of the words ‘shall’ or ‘may’ is not
controlling.” Director, Patuxent Inst. v. Cash, 269 Md. 331, 344
(1973) (internal quotation marks and alterations omitted). The
inquiry instead “turns upon the intention of the Legislature as
gathered from the nature of the subject matter and the purposes to
be accomplished,” Rice, 447 Md. at 625 (quoting Resetar v. State
Bd. Of Educ., 284 Md. 537, 547 (1979)), and one factor in that
inquiry—though by no means dispositive on its own—is whether
the statute provides a penalty for noncompliance. See, e.g., Frank,
272 Md. at 533 (holding that a lack of penalty, though not
controlling, suggested that statute was directory); Columbia Rd.
Citizens’ Ass’n, 98 Md. App. at 701 (“The lack of any sanction in
the statute or provision tends to militate towards a finding that the
statute or provision is directory.”); see also Lamone, 2018 WL
3641867 at *8 (explaining that “the absence of a statutory penalty
is not dispositive as to whether ‘shall’ is mandatory” or directory).
Applying that principle here, given that there is no statutory
penalty for failing to designate an alternate member, a court might
conclude that the requirement in § 4-302 to designate an alternate
member is “directory” in that sense of the word and therefore
would not impose a penalty on a locality for failure to comply.8
8
In particular, it seems highly unlikely that a court would void a
board’s proceedings (or impose some other drastic sanction) for failure
to designate an alternate member when all of the regular members of the
board were present and voting and the lack of an alternate member thus
had no practical effect. But we do not purport in this opinion to give any
definitive guidance about what sanctions a court might or might not
impose under specific circumstances. In addition, even if a court were
ultimately to find that no sanction for noncompliance is appropriate, a
court might still decide that LU § 4-302(f)(1) imposes a ministerial duty
on the local legislative body to designate an alternate member to the
board and—in a proper case—issue a writ of mandamus to compel the
legislative body to comply.
16 [103 Op. Att’y
But even when “a provision is directory rather than mandatory,”
that “does not mean that it is optional—to be ignored at will.” 67
Opinions of the Attorney General at 209 (quoting Borough of
Pleasant Hills, 125 A.2d at 469). To the contrary, “[b]oth
mandatory and directory provisions . . . are meant to be followed.
It is only in the effect of non-compliance that a distinction arises.”
Id. (internal quotation marks omitted). Put another way:
When a legislative body commands that
something be done, using words such as
“shall” or “must,” rather than “may” or
“should,” we must assume, absent some
evidence to the contrary, that it was serious
and that it meant for the thing to be done in
the manner it directed. In that sense, the
obligation to comply with the statute . . . is
both mandatory and directory. The relevant
question in such a case is [merely] whether the
sanction sought for noncompliance is an
appropriate one.
Woodfield, 395 Md. at 388-89 (quoting Tucker, 89 Md. App. at
298); see also In re James S., 286 Md. 702, 707 (1980) (“The
differences between mandatory and directory, or between
prohibitory and permissive, represent a continuum involving
matters of degree instead of separate, mutually exclusive
characteristics.” (internal quotation marks and citations omitted)).9
Therefore, in our view, the lack of a statutory penalty does not
9
In recent years, the Court of Appeals has been moving away from
the mandatory/directory distinction. See Woodfield, 395 Md. at 388(explaining that “the mandatory/directory approach to determining the
consequences of a failure to comply with a statutory command,” though
a “traditional” approach, “is an artificial one that addresses the
appropriate question in a circular fashion”). Instead, where the statute
does not provide a sanction for noncompliance, the Court has said it will
“attempt[] to discern the overall purpose of the statute and then
determine which, if any, sanction will best further that purpose.” Id. at
389 (quoting Tucker, 89 Md. App. at 299). Although the “same result is
likely to be achieved by using a mandatory/directory approach,” the
Court has said that the purpose-based approach “is the better analytical
framework for determining the consequence of noncompliance with a
statutory mandate.” Id. at 389-90; but see Lamone, 2018 WL 3641867at *7-8 (discussing the mandatory/directory dichotomy); Rice, 447 Md.
at 624-25 (continuing to rely on the mandatory/directory dichotomy,
though focusing on the statutory purpose in the analysis).
Gen. 3] 17
change the fact that § 4-302(f)(1) is meant to be followed. See 67
Opinions of the Attorney General at 209.10
We thus conclude that, despite the absence of a statutory
penalty, § 4-302(f)(1) of the Land Use Article imposes an
obligation upon local legislative bodies to designate at least one
alternate member. Although the absence of a statutory penalty is
relevant in determining what sanction, if any, a court would impose
on a locality for failure to comply with this requirement, the
absence of an express penalty does not mean the Legislature
intended to leave the decision of whether to designate an alternate
member to the discretion of the locality.
III
Conclusion
In sum, we conclude that the three-year term in § 4-302(c) of
the Land Use Article for the members of a local board of appeals
applies to both the board’s regular members and its alternate
members. We also conclude that the use of the word “shall” in
§ 4-302(f)(1) imposes a requirement on local legislative bodies to
designate at least one alternate member to the board.
Brian E. Frosh
Attorney General of Maryland
Jeffrey P. Hochstetler
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice
*Karen L. Federman Henry, former Assistant Attorney General,
contributed significantly to the preparation of this Opinion.
10
On occasion, in other contexts, the word “directory” has been used
somewhat differently to mean “to exhort the doing of [a] thing . . .
without requiring it.” In re Abiagail C., 138 Md. App. 570, 581 (2001)
(concluding that the statutory deadline for an arbiter’s action was
directory, not mandatory); see also 74 Opinions of the Attorney General
53, 59 n.5 (1989) (interpreting a condition in the budget as “directory,”
meaning in that context that the agency need not follow it but “should
give it careful, good-faith consideration”). However, regardless of the
differing ways in which the mandatory/directory distinction may have
been applied over the years in other contexts, we conclude that in the
context before us the mere lack of an express penalty for noncompliance
does not mean that the statutory command to designate an alternate
member is optional.