Code Home Rule Counties – Taxes and Fees – WhetherCharles County May Impose a Host Fee on WasteTransfer Stations ( 2020 )

94 [105 Op. Att’y
COUNTIES
CODE HOME RULE COUNTIES – TAXES AND FEES – WHETHER
CHARLES COUNTY MAY IMPOSE A HOST FEE ON WASTE
TRANSFER STATIONS
December 22, 2020
Reuben B. Collins, II, Esq., President
Board of County Commissioners, Charles County
You have asked for an opinion of the Attorney General on
whether Charles County (the “County”), as a code home rule
jurisdiction, possesses the authority, absent enabling legislation
enacted by the General Assembly, to levy a “host fee” on private
waste transfer facilities (also known as “transfer stations”) that
wish to operate in the County. In your request, you have indicated
that, as you understand it, a “host fee” is a fee that an operating
company pays to a local government to locate, construct, operate,
and/or expand waste or recycling facilities and that, here, the
contemplated host fee would be charged as a condition of allowing
a private transfer facility to collect waste at the facility and then
transfer that waste to another facility outside the County, rather
than to dispose of waste at the County landfill.
Your request indicates that the fees would “be used to mitigate
against roadway usage, litter generation, traffic congestion, and
loss in revenue from waste that would otherwise be subject to fees
for disposal at the County-operated landfill.” The opinion of the
County Attorney that was included with your request further
explains that “[o]perators of such facilities may be met with local
opposition to the construction of waste facilities, and to ease such
opposition, a local authority may impose some form of host
compensation to be paid to the local government, in exchange for
their permission to proceed with developing the facility.”
Memorandum of E. Wesley Adams III, Charles County Attorney,
to the Charles County Commissioners, at 1 (June 8, 2020) (“Adams
Memorandum”).
For the reasons explained below, it is our opinion that, under
Article XI-F, § 9 of the Maryland Constitution, Charles County
does not possess the requisite authority to levy the proposed “host
fee,” as described in your request, without express authority from
the General Assembly, and that the General Assembly has not yet
granted that authority. We do not offer an opinion about a “host
Gen. 94] 95
fee” that might be different in nature from the one described in your
request, about a “host fee” imposed on a different type of facility
than a waste transfer station, or about the authority of a jurisdiction
other than Charles County to impose a “host fee.” 1
I
Background
A. Charles County and Code Home Rule
Charles County is a code home rule jurisdiction governed by
Article XI-F of the Maryland Constitution. “Code home rule
counties derive their powers from two main sources—the
Constitution itself and legislation enacted by the General
Assembly.” 96 Opinions of the Attorney General 36, 37 (2011)
(citing Kent Island Def. League, LLC v. Queen Anne’s County Bd.
of Elections, 145 Md. App. 684, 688 (2002)); see also 98 Opinions
of the Attorney General 60 (2013) (discussing some of the powers
of code counties); 62 Opinions of the Attorney General 275 (1977)
(describing the historical background of Article XI-F).
Article XI-F, § 9 of the Maryland Constitution provides that
“[a] code county shall not levy any type of tax, license fee,
franchise tax, or fee which was not in effect or authorized in the
code county at the time it came under the provisions of this Article,
until an express authorization of the General Assembly has been
enacted for this purpose by a general law which in its terms and
effect applies alike to all code counties in one or more of the classes
provided for in Section 5 of this Article.” 2 The Court of Appeals
has interpreted the largely identical provision governing
municipalities—Article XI-E, § 5—to apply “not only to revenue-
1
We understand your question to be whether Charles County may
unilaterally impose the contemplated host fee on private transfer
stations. We thus have not analyzed, for example—and do not offer an
opinion on—whether the County or any other local jurisdiction may
enter into a contract, with a private operator of a waste facility, under
which the operator agrees to pay a “host fee.”
2
By statute, there are four classes of code counties: those in Central
Maryland, on the Eastern Shore, in Southern Maryland, and in Western
Maryland. See Md. Code Ann., Local Gov’t (“LG”) § 9-302(a). Charles
County is currently the only code county in the Southern Maryland class,
as defined by that provision.
96 [105 Op. Att’y
raising levies but to regulatory levies as well.” 77 Opinions of the
Attorney General 37, 39 (1992) (citing Campbell v. Mayor &
Aldermen of the City of Annapolis, 289 Md. 300, 308 (1981)). As
we have previously noted, “[s]uch a broad interpretation of this
limitation suggests that the entire subject of the levying of taxes
and fees by code counties has been reserved to the General
Assembly.” 77 Opinions of the Attorney General at 39; see also 64
Opinions of the Attorney General 296 (1979) (discussing Article
XI-F, § 9). In short, as a code home rule county, Charles County
must have “express authorization” from the General Assembly
before it levies “any type” of tax, license fee, franchise tax, or fee
not already in effect or authorized in the County at the time it
became a code home rule jurisdiction, which—for Charles
County—was on December 5, 2002. 3
B. Waste Transfer Stations
The operation of waste transfer stations is governed by Title
9 of the Environment Article, as implemented by regulations
promulgated by the Maryland Department of the Environment
(“MDE”). See, e.g., Md. Code Ann., Envir. (“EN”) § 9-210;
COMAR 26.04.07.24; COMAR 26.03.03.05. At the most general
level, a waste “transfer station” is a type of “[s]olid waste acceptance
facility.” EN § 9-501(n) (defining “[s]olid waste acceptance
facility” to mean “any sanitary landfill, incinerator, transfer station,
or plant whose primary purpose is to dispose of, treat, or process
solid waste”). More specifically, a “transfer station” is defined
under MDE’s regulations as:
a place or facility where waste materials are
taken from one collection vehicle (for
example, compactor trucks) and placed in
another transportation unit (for example, over-
the-road tractor-trailers, railroad gondola cars,
barges or ships) for movement to other solid
waste acceptance facilities. For the purposes
of these regulations, collection points serving
rural residential areas are not considered to be
transfer stations, provided that solid waste is
not transferred from a collection vehicle to
3
The voters of Charles County approved the resolution adopting
home rule jurisdiction on November 5, 2002, and Article XI-F of the
Maryland Constitution provides that a “county shall become a code
county under the provisions of this Article, on the thirtieth day after the
election” at which the resolution is approved. Md. Const., Art. XI-F, § 2.
Gen. 94] 97
another transportation unit. The movement or
consolidation of a single generator’s solid
waste at the site of generation may not be
considered to be a transfer station.
COMAR 26.04.07.02B(32).
It is important to note that these regulations establish a clear
distinction between transfer stations and other types of waste
acceptance facilities. Most relevant to this analysis, while MDE’s
regulations define a “transfer station” as “a place or facility where
waste materials are taken from one collection vehicle . . . and
placed in another transportation unit . . . for movement to other
solid waste acceptance facilities,” id., the regulations define a
“sanitary landfill” as “an engineered method of disposing of solid
wastes on land in a manner that: (a) [m]inimizes public health and
environmental hazards[,] and (b) [i]s designed, installed, and
operated according to the provisions of these regulations,”
COMAR 26.04.07.02B(27) (emphasis added). Thus, the primary
difference between a sanitary landfill and a waste transfer station
seems to be that a transfer station is a place where waste is
temporarily collected to be transferred somewhere else for
permanent disposal, whereas a sanitary landfill is a place where
waste is disposed of permanently.
C. Host Fees
The term “host fee” is not defined by any Maryland statute or
regulation. Nor have such fees been the subject of review by the
Maryland courts or any opinions of our Office. However, such fees
have apparently been implemented in jurisdictions throughout the
country. See Neil R. Shortlidge & S. Mark White, The Use of
Zoning and Other Local Controls for Siting Solid and Other
Hazardous Waste Facilities, Nat. Resources & Env’t, Winter 1993
at 3. 4
While the exact nature of these fees varies depending on the
jurisdiction, it is our understanding that “host fees” are typically
understood to be “charges applied as a condition of permitting or
other regulatory approvals that are designed to mitigate the impacts
4
It is our understanding that some local jurisdictions in Maryland
charge fees that they may have termed “host fees” to private waste
facilities, but the nature and permissibility of those fees is beyond the
scope of your specific opinion request.
98 [105 Op. Att’y
created by the proposed [waste] facility on the community, public
facilities and services, and natural resources.” Id. at 5. These fees
also ordinarily “compensate the community for the risks created by
the waste facility,” id., and “allow the developer to proceed with
construction while providing an important revenue source to the
community,” id. at 44. This economic benefit can “make its
construction more politically palatable to citizens in the
community.” Id.
Consistent with that understanding, you explain in your
request that the host fee would “be used to mitigate against
roadway usage, litter generation, traffic congestion, and loss in
revenue from waste that would otherwise be subject to fees for
disposal at the County-operated landfill.” The County Attorney
also noted that the fee may be justified in part by “the transfer
stations’ impact on County roadways that may require more
frequent maintenance and improvement of public road facilities
designed to serve the needs of the public and the transfer station, as
well to mitigate against other nuisances from the collection of
waste at the station.” Adams Memorandum at 2. It thus appears
from the County Attorney’s opinion that Charles County would
impose the fee at least in part for purposes of raising revenue for
the County and thereby making the transfer facilities more
palatable to the public.
D. Fees Versus Taxes
It is sometimes relevant under Maryland law to determine
whether a particular “fee” is a “regulatory fee,” a “user fee,” or a
fee in the nature of a tax. See, e.g., 96 Opinions of the Attorney
General 61, 67 (2011); 91 Opinions of the Attorney General 14,
17-19 (2006). In distinguishing among these types of charges, “the
purpose of the enactment governs rather than the legislative label.”
Eastern Diversified Properties, Inc. v. Montgomery County, 319
Md. 45, 53 (1990) (quoting Campbell, 289 Md. at 305).
“Generally, a tax is designed primarily to raise revenue, a
regulatory fee funds a regulatory measure, and a user fee pays for
a commodity consumed or a service rendered.” 96 Opinions of the
Attorney General at 67. In particular, as between regulatory fees
and taxes, the Court of Appeals has articulated the following
distinction:
There is no set rule by which it can be
determined in which category a particular Act
primarily belongs. In general, it may be said
that when it appears from the Act itself that
revenue is its main objective, and the amount
Gen. 94] 99
of the tax supports that theory, the enactment
is a revenue measure. . . . [W]here the fee is
imposed for the purpose of regulation, and the
statute requires compliance with certain
conditions in addition to the payment of the
prescribed sum, such sum is a license proper,
imposed by virtue of the police power; but
where it is exacted solely for revenue
purposes and its payment give[s] the right to
carry on the business without any further
conditions, it is a tax.
Eastern Diversified Properties, 319 Md. at 53 (internal citation and
quotation omitted). For a fee to qualify as regulatory, therefore, the
fee generally must “require[] compliance with certain conditions
beyond mere payment of a prescribed sum,” and “[t]he amount of
revenue generated by [the] . . . fee must be ‘reasonable’ and bear
‘some definite relation to the purpose of the regulation.’” 91
Opinions of the Attorney General 152, 156 (2006) (quoting Mayor
& City Council of Ocean City v. Purnell-Jarvis, 86 Md. App. 390,
405 (1991)). In other words, to be a regulatory fee, there must be
a sufficient “nexus between the charges and the stated regulatory
purpose.” Id. (citing Eastern Diversified Properties, 319 Md. at
55).
As noted above, however, the limitation on the authority of
code counties in Article XI-F, § 9 “applies not only to revenue-
raising levies but to regulatory levies as well.” 77 Opinions of the
Attorney General at 39. That means a code county must have
“express authorization” from the General Assembly to charge a fee
that was not in effect or authorized before the county became a code
home rule jurisdiction regardless of whether that fee is properly
characterized as a regulatory measure or as a revenue-raising tax.
Still, whether a fee has been expressly authorized by a particular
statute may “depend on whether [the fee] is more aptly
characterized as a regulatory measure or a tax,” 89 Opinions of the
Attorney General 212, 214 (2004), because some statutes might
authorize only regulatory fees, rather than fees in the nature of a
tax, or vice versa.
II
Analysis
You have asked whether Charles County may impose a “host
fee” on waste transfer stations that might wish to operate in the
100 [105 Op. Att’y
County. As explained above, a code county “shall not levy any
type of tax, license fee, franchise tax, or fee which was not in effect
or authorized in the code county at the time it came under the
provisions of this Article [i.e., Article XI-F], until an express
authorization of the General Assembly has been enacted for this
purpose by a general law which in its terms and effect applies alike
to all code counties in one or more of the classes provided for in
Section 5 of this Article.” Md. Const., Art. XI-F, § 9. To answer
your question, therefore, we must consider: (1) whether, at the time
Charles County became a code home rule jurisdiction, a “host fee”
for waste transfer facilities was in effect in Charles County or there
was an existing provision of law that would have authorized such
a “host fee” in the County; and (2) if not, whether the County now
has express authorization from the General Assembly to levy the
“host fee” in question.
A. Was a Host Fee in Effect or Authorized When Charles
County Became a Code Home Rule Jurisdiction?
Turning to the first prong, it does not appear that “host fees”
for waste transfer facilities were in effect or authorized in Charles
County before the County became a code home rule jurisdiction.
Preliminarily, as the County Attorney noted in his opinion, “[t]here
is no question that an explicit host fee imposed upon a transfer
station did not exist in 2002[,] as a private waste acceptance facility
has not existed previously in the County.” Adams Memorandum
at 1. But Article XI-F does not require a tax or fee to have been “in
effect” at the time a county adopted code home rule, so long as the
tax or fee was “authorized” at that time. Md. Const., Art. XI-F, § 9.
We thus must determine whether the “host fee” about which you
ask might have been “authorized” in the County by a provision of
the Charles County Code of Ordinances, the Public Local Laws of
Charles County, or the Maryland Code that existed before
December 5, 2002.
As far as we have been able to tell, there were no such
provisions authorizing the hypothetical “host fee” on waste transfer
facilities that is the subject of your request. 5 Although § 254-7 of
5
To be clear, we have not scoured every provision of the relevant
codes that existed in 2002, but the County Attorney did not identify any
relevant provisions, and we are also not aware of any. If another
provision can be identified that we did not consider, that could, of course,
affect the analysis.
Gen. 94] 101
the Charles County Code of Ordinances and Resolutions—which
took effect in 1982, before Charles County adopted home rule—
refers to a fee that is charged for the “use of” the County’s “sanitary
landfills,” 6 that fee appears to be distinguishable from the proposed
“host fee” for waste transfer facilities. One important difference is
that, as the County Attorney explained in his opinion, the proposed
“host fee” would not be for disposal of waste in the County landfill
but instead would be a fee charged to a private entity in exchange
for affording that entity the privilege to operate the transfer station
and, in doing so, to transfer the waste in question to some location
outside the County. Adams Memorandum at 1-2.
Because § 254-7 contemplates a service charge for “use of”
the landfill, the County Attorney concluded that it could not cover
the host fee, which would not be for “the service of disposing of
the waste . . . at the County landfill.” Adams Memorandum at 1.
In fact, according to the County Attorney, the waste to be processed
through the transfer station in the County “is not intended for
disposal at the landfill whatsoever, not even on a temporary basis.”
Id. That distinction is reinforced by the fact that landfills are
treated differently than transfer stations under MDE’s regulations,
as explained above. See Part I.B, supra. We ordinarily defer to a
County Attorney’s interpretation of county laws, see, e.g., 88
Opinions of the Attorney General 145, 150 (2003), and do so here.
More fundamentally, though, § 254-7 of the County Code
could not have served as an authorization for the contemplated
“host fee” here because the provision of State law that authorized
that ordinance did not provide for the power to impose such a “host
fee.” See Md. Code, Art. 25, § 14A (2001 Repl. Vol.) (now
codified at LG § 13-403). That State law, both at the time the
ordinance was enacted and when Charles County later adopted
code home rule, provided that “[t]he county commissioners of
every county in the State may acquire, maintain, and operate a tract
of land or tracts or parcels of land within the limits of the county
for the disposal of refuse, garbage, rubbish, or any other matter as
in their judgment may promote the public health of the inhabitants
of the county.” Id. In the “exercise of that power,” the counties
could “[m]ake agreements . . . for cooperation in, and financial
6
According to the County Attorney’s opinion, although the fee is
mentioned in this provision, the fee is actually imposed each year
through the County’s annual budget ordinance, and such fees for the use
of the County’s landfills have been imposed—apparently through the
budget—since at least 1974.
102 [105 Op. Att’y
support by way of service charges and fees, in the acquisition,
construction, operation and maintenance of th[ose] disposal areas
or facilities,” as well as “[f]ix and collect reasonable service
charges or fees . . . for the use of the disposal areas or facilities.”
Id.; see also 86 Opinions of the Attorney General 153 (2001)
(discussing some of the other powers granted to counties under
what was then Article 25, § 14A). As that language makes clear,
the provision could not have extended to the contemplated “host
fee” imposed on a private transfer facility that will not be disposing
of refuse, garbage, or rubbish in the County’s landfill. 7
We recognize that, under the former Article 25, § 3(v)(1), 8 a
number of counties, including Charles County, had been granted
powers as of December 2002 that might have been read to include
the power to regulate transfer facilities. Under that section as it
existed at the relevant time, counties could “require, regulate, or
provide for the collection, removal, and disposal of refuse, garbage,
rubbish, filth, or any other matter or thing that is or may become
injurious to the health or comfort of the inhabitants of the county”
and “provide whether the expense, if any, shall be borne by
individual owners or tenants or shall be paid for in whole or in part
by the county.” Md. Ann. Code, Art. 25, § 3(v)(1) (2001 Repl.
Vol.).
That language, however, speaks to the regulation of certain
garbage-related activities themselves, not to funding the
maintenance of county infrastructure or to raising revenue to make
a facility palatable to the County’s residents, as seems to be
contemplated by the host fee in question. 9 Although the power to
7
Similarly, § 133-1 of the Public Local Laws of Charles County,
which might also have been a partial source of authority for § 254-7 of
the County Code, applies only to the County’s “disposal areas” and
would not seem to extend to a private transfer station.
8
Article 25, § 3(v)(1) was recodified in 2013 and now appears as LG
§ 13-402(c). See 2013 Md. Laws, ch. 119.
9
The extent to which a county may regulate transfer stations and other
waste acceptance facilities under current law may also be limited to some
degree by State statute, which reserves to the State the regulation of
many environmental-protection matters related to solid waste. See Days
Cove Reclamation Co. v. Queen Anne’s County, 146 Md. App. 469, 501-
02 (2002) (“[T]he traditional zoning and land use decisions which . . .
are to be made by the local government do not include determining what
is necessary in order to protect the environment from the pollutants that
are generated specifically by a rubble landfill.”). We need not decide the
extent of those limits here, however.
Gen. 94] 103
regulate an activity can often include the power to impose
regulatory fees in connection with the activity being regulated, so
long as there is a sufficient “nexus between the charges and the
stated regulatory purpose,” 91 Opinions of the Attorney General at
156 (citing Eastern Diversified Properties, 319 Md. at 55), the
regulatory authority granted by Article 25, § 3(v)(1) does not seem
to have a nexus to—and thus did not authorize—the County to
charge the host fees you describe. See, e.g., Mayor & City Council
of Baltimore v. Canton Co. of Baltimore, 186 Md. 618, 631-32
(1946) (“Power delegated to a [local jurisdiction] to ‘regulate’ or
to ‘license and regulate’ does not include power to impose a license
tax or fee to raise revenue that bears no reasonable relation to the
expense of regulation”). 10 Therefore, regardless of the extent to
which former Article 25, § 3(v)(1) might have authorized Charles
County to regulate transfer stations before December 5, 2002—
which we need not decide here—the provision would not have
authorized the “host fee” contemplated by your request.
In sum, it does not appear that there was any provision in
effect in December of 2002, when Charles County became a code
home rule jurisdiction, that would have authorized the County to
impose the “host fee” that is the subject of your request.
B. Has the General Assembly Expressly Authorized Host Fees
for Waste Transfer Facilities in Charles County?
Because it does not appear that a “host fee” of the type
mentioned in your request was either in effect or authorized in
Charles County at the time the County became a code home rule
jurisdiction, in order to be valid, such a fee must be expressly
authorized by the General Assembly. See Md. Const., Art. XI-F,
§ 9. Thus, we turn to the second prong of our analysis, i.e., whether
Charles County has express authority from the General Assembly
to levy the proposed “host fee.”
The statutory powers of code counties are generally (though
not exclusively) codified in one of three locations: Title 10,
Subtitle 3 of the Local Government Article, which lists the powers
10
Similarly, although the part of that same statute that gave counties
the power to “provide whether the expense, if any, [for the collection,
removal, and disposal of refuse] shall be borne by individual owners or
tenants or shall be paid for in whole or in part by the county” might have
authorized a user fee or service charge of some sort, Art. 25, § 3(v)(1), it
would not have authorized a host fee as you have described it.
104 [105 Op. Att’y
that are shared by both charter counties and code counties; Title 11
of the Local Government Article, which lists powers that are
particular to code counties; and Title 13 of the Local Government
Article, which lists certain other powers given to all counties or to
a subset of particular counties. However, none of the provisions in
those parts of the Maryland Code (or anywhere else in the Code,
for that matter) appears to authorize the proposed “host fee.”
For example, Title 10 of the Local Government Article (also
known as the Express Powers Act) provides for a grant of certain
express powers to code counties, see LG § 10-102(b) (stating that
“[i]n addition to other powers granted to code counties, each code
county may exercise by legislative enactment the express powers
provided in Subtitle 3 of this title”), but none of those powers
includes the authority to impose the “host fee” as described in your
request. While the powers do include the specific authority for
code counties to impose certain fees, a “host fee” is not among
them. See, e.g., LG § 10-312 (permitting code counties to impose
franchise fees and establish rates); LG § 10-315 (permitting code
counties to charge fees to businesses subject to a commercial
district management authority).
And although Title 10 grants code counties the broad
authority to “enact local laws to protect and promote public safety,
health, morals, comfort, and welfare, relating to . . . the disposal of
wastes,” LG § 10-317(a)(2), that power does not constitute an
“express authorization” under Article XI-F, § 9 to charge the
contemplated host fee. As the Court of Appeals explained in
interpreting the largely identical constitutional provision that
governs municipalities, a similarly broad grant of police powers—
including, among other things, the power “to protect the health,
comfort and convenience of the citizens of the municipality”—was
too general to qualify as an “express authorization” to impose a
regulatory fee. Campbell, 289 Md. at 308-09 (emphasis added). In
other words, although a broad police power granted to a home rule
jurisdiction might sometimes encompass the authority to charge
regulatory fees if those fees have a sufficient nexus to the purpose
of a regulation imposed under that police power, cf. Eastern
Diversified Properties, 319 Md. at 51, 53 (implying that was the
case for charter counties), that was not the rule under the stricter
Gen. 94] 105
requirements in Article XI-E, § 5. Express authorization for the fee
was instead required. 11
Given the similarity between Article XI-F, § 9 and the
constitutional provision at issue in Campbell, we have previously
suggested that Article XI-F, § 9 would also be interpreted to require
“express authorization” for both “revenue-raising” and “regulatory
levies.” 77 Opinions of the Attorney General at 39. Indeed, in that
opinion, we explained that “the provisions of the Code Home Rule
Article are generally modeled on the Municipal Home Rule
Article,” that “[t]his parallelism is especially true of the tax levy
limitation in § 9 of the Code Home Rule Article,” and that § 9, like
the analogous provision in the Municipal Home Rule Article,
“applies not only to revenue-raising levies but to regulatory levies
as well.” Id. Applying the same principles from that opinion here,
the general authorization in LG § 10-317 regarding the disposal of
wastes, despite its breadth, is not an “express authorization” to
charge the host fee in question. Regardless of whether the host fee
is viewed as revenue-raising measure or a regulatory levy,
therefore, LG § 10-317 does not authorize it.
Similarly, under Title 11 of the Local Government Article, as
with Title 10, there do not appear to be any provisions that would
authorize a “host fee” for waste transfer facilities along the lines
you describe in your request. See, e.g., LG § 11-401(f)(2)
(allowing code counties to “set rates, fees, and assessments for
water and sewerage services and benefits”); LG § 11-504 (allowing
code counties to charge “a reasonable fee” for towing company
licenses).
11
In reaction to Campbell, the General Assembly later expressly
authorized municipalities to, with certain exceptions, “establish and
collect reasonable fees and charges: (i) [f]or the franchises, licenses, or
permits authorized by law to be granted by a municipal corporation; or
(ii) [a]ssociated with the exercise of any governmental or proprietary
function authorized by law to be exercised by a municipal corporation.”
89 Opinions of the Attorney General at 217 n.3 (citing 67 Opinions of
the Attorney General 307, 310 (1982)); see also LG § 5-205(d)
(providing for the current version of that authorization). It does not
appear, however, that any similar authorization has been enacted for all
code counties. We thus do not need to decide whether the contemplated
host fee would qualify as a regulatory levy.
106 [105 Op. Att’y
The same is again true for Title 13 of the Local Government
Article. Although the General Assembly has, under that Title,
authorized all counties to require licensing fees for the operation of
junkyards, and to impose a reasonable fee for those licenses, LG
§ 13-504, that does not give Charles County the requisite authority
to charge a “host fee” for waste transfer stations. 12 Rather,
“junkyard” is defined under that statute as “a public or private
dump, automobile junkyard, automotive dismantler or recycler
facility, scrap metal processing facility, outdoor place where old
motor vehicles are stored in quantity or dismantled, or lot on which
refuse, trash, or junk is deposited.” LG § 13-501. Like sanitary
landfills, then, junkyards are distinguishable from transfer stations
in that junkyards accept trash for “deposit[]” onto the lot, not
temporarily collected for transfer to transport to another location.
What is more, in authorizing a county to impose a “reasonable
fee” for junkyard licenses, the language of LG § 13-504 implies
that it was intended to grant the power to impose regulatory fees—
which are generally assessed for “reasonableness,” 91 Opinions of
the Attorney General at 156 n.3—not fees in the nature of a tax.
See 89 Opinions of the Attorney General at 217 (explaining under
a different statute that an “authorization to impose ‘reasonable’ fees
and charges indicates that . . . the Legislature was conferring
authority to impose regulatory charges rather than taxes”). Thus,
to the extent that the proposed host fee would be a revenue-raising
tax, rather than a regulatory fee, that would be yet another reason
why LG § 13-504 could not provide a basis for charging the host
fee in question for waste transfer facilities.
Finally, we recognize that, under Title 20 of the Local
Government Article, the General Assembly has authorized the
imposition of development impact fees by certain counties,
including Charles County. See LG § 20-701 (authorizing code
counties to impose “development impact fees to finance any of the
capital costs of additional or expanded public works,
improvements, and facilities required to accommodate new
construction or development”). As we have explained in prior
opinions, development impact fees are typically “imposed to offset
the cost of [the] infrastructure or public facilities necessary to
support new development.” 89 Opinions of the Attorney General
12
This provision applied to Charles County before December of 2002,
see Md. Ann. Code, Art. 25, § 122A (2001 Repl. Vol.), so it need only
have “authorized” Charles County to impose a host fee for transfer
stations, not “express[ly]” so. Either way, it cannot be read to provide
the necessary authorization for such a host fee.
Gen. 94] 107
at 213; see also 91 Opinions of the Attorney General at 155-57;
Paul A. Tiburzi, Impact Fees in Maryland, 17 U. Balt. L. Rev. 502(1988).
Here, however, neither your request nor the County
Attorney’s opinion suggests that the proposed fee would be
structured as an impact fee under LG § 20-701. That is, the
proposed fee, as described to us, would not be limited solely to the
financing of “capital costs of additional or expanded public works,
improvements, and facilities required to accommodate new
construction.” LG § 20-701. Although the County Attorney’s
opinion notes that the fee might be justified in part by the need for
“improvement of public road facilities designed to serve the needs of
the public and the transfer station,” that would apparently comprise
only one component of the overall fee. Adams Memorandum at 2.
The fee, according to your request, would also be designed to
mitigate for nuisances caused by the transfer station, such as litter
generation and traffic congestion, and for the loss in revenue from
the transfer of waste to other jurisdictions that would otherwise be
subject to fees for disposal at the County-operated landfill, as well
as to “ease” local opposition to the construction of the transfer
station. Those other justifications for the fee do not appear to be
tied to the “capital costs” of any public works, improvements, or
facilities needed to accommodate new construction, as would be
required in order for a fee to be legally imposed under LG § 20-
701. See also Shortlidge & White, supra, at 5 (distinguishing “host
fees” for waste facilities, at least as generally understood, from
“impact fees” and noting that impact fees are generally tied to the
costs of “identified impacts” on public resources, while host fees
generally “compensate the community for the risks created by the
waste facility”).
Thus, while it is at least possible that a “host fee” for a waste
transfer station might qualify as a development impact fee under
LG § 20-701 if it were actually tied to the “capital costs of
additional or expanded public works, improvements, and facilities
required to accommodate new construction” of the transfer station,
the host fee that Charles County is contemplating, as described to
us, likely would not qualify as a development impact fee under that
statute. In our view, therefore, the General Assembly has not yet
expressly authorized the fee as proposed in your letter, and, under
Article XI-F, § 9, Charles County may not impose it.
108 [105 Op. Att’y
III
Conclusion
In sum, as a code home rule county, Charles County is
prohibited from imposing the “host fee” that you have described
without express authority from the General Assembly, unless such
a fee was in effect or authorized at the time the County became a
code home rule jurisdiction. As best as we can tell, the contemplated
“host fee” was neither in effect nor authorized at the time the
County became a code home rule county, and the General
Assembly has not expressly authorized such a fee. Therefore,
based on the information provided, it is our opinion that the County
currently lacks the authority to impose it.
Brian E. Frosh
Attorney General of Maryland
Christopher Franzoni
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions & Advice
*Ann MacNeille, Assistant Attorney General, contributed significantly
to the preparation of this Opinion.