Three Maryland counties have essentially violated the state's new law aimed at limiting growth on septic systems, a top O'Malley administration aide said Wednesday, adding that state officials are "weighing our options," including possible legal action or withholding of funds.
Cecil, Frederick and Allegany counties did not follow the 2012 law in drawing up maps that were supposed to restrict where large housing subdivisions on septic may be built, Planning Secretary Richard E. Hall told lawmakers in Annapolis.
Hall, briefing members of the House and Senate environmental committees, said that Cecil and Frederick in particular appear to have tried to essentially "negate" the law by leaving as much forest and farm land open to septic-based housing development as possible - including some properties already preserved.
"So they basically have not only ignored the law, they’ve thumbed their nose at the state," observed Sen. Paul Pinsky, a Prince George's County Democrat.
Hall said Allegany officials have deviated from the law in a more limited fashion in one area of the county.
Dru Schmidt-Perkins, executive director of the land preservation group 1000 Friends of Maryland, said she's also worried about Charles County, where she said county officials have been considering a septic growth map suggested by developers. The county has yet to adopt anything for submittal to the state, though.
The planning secretary said that only 11 of Maryland's 23 counties have adopted maps provided for in the law that spell out where septic-based development can and can't occur. State planners are "fine" with most of those, Hall said, concluding they're basically in line with the law's aim of curbing rural sprawl and limiting nutrient pollution from septics.
But the rest of the state's counties have not submitted any growth maps for state review, Hall said, and many of those appear to be waiting to see what happens to those counties that essentially ignored the law - or to see if lawmakers amend or repeal the controversial law.
Under the "Sustainable Growth & Agricultural Preservation Act" passed last year, Maryland's 23 counties and its municipalities are supposed to map where they plan to grow, carving their territory up into four "tiers" that increasingly limit residential development on septic systems. The maps were due by the end of the year, if the counties want to continue permitting any large-scale housing projects using septics.
Hall noted that the bill the administration introduced would have had his department approve or reject the counties' maps, but lawmakers worried about local prerogatives to control land use stripped out the state's ability to veto plans or order changes. Instead, the law provides that the department may force a county to have a public hearing on its septic growth plan if state planners believe it doesn't comply with the law.
The state planning department has written Cecil and Frederick saying its maps do not conform to the law's requirements. Cecil already has called a public hearing Feb. 19 on the state's criticism.
"We hope they will change their maps, but there’s nothing in the legislation that requires them to," he said. "To be blunt, they can ignore us."
While his department is limited by the law to commenting on local septic plans, Hall said it's possible that counties may still face lawsuits from residents who believe they or their property may be hurt by having septic-supported development nearby.
Administration officials also are considering what options the state may have to respond to a local government they believe is flouting the law, Hall said. Nothing's been decided, he said, but noted that there'd been discussion of state agencies joining with the attorney general in a lawsuit, or withhholding some funds from counties deemed out of compliance.
Hall said he's worried that if Cecil and Frederick don't respond to the state's criticism of their septic growth plans, it may encourage other counties to ignore the law unless there are some consequences.
Some lawmakers indicated they feared the state had already overstepped its authority in trying to influence local land use decisions. House Republicans have introduced a bill to repeal the law.
Del. Cathy Vitale, an Anne Arundel County Republican, questioned why Hall's department had blocked a planned development in her county that had been approved by local officials.
Hall said his staff objected because the project in question called for extending public sewer service into an area of the county not designated for such development in Arundel's long-range growth plan. If the county amended its growth plan to include the development, he said state planners would go along.
Del. Charles J. Otto, a Republican representing Somerset and Worcester counties, expressed his disdain for the law and recited constituents' complaints that it is unconstitutional because it limits their ability to develop their land. He also questioned how the restrictions on septic growth would help the Chesapeake Bay.
Hall replied that the legislation was reviewed for constitutionality before it was introduced. He recited statistics on the law's environmental effects, including keeping 1.1 milllion pounds of nitrogen out of the bay and its tributaries, and preserving 100,000 acres of forest and farmland that planners believe would otherwise be developed.
But he noted that there's still plenty of land available for development under the development, up to twice as much as planners project would be needed over the next 25 years to accommodate an additional 450,000 households.
Earlier in his briefing, Hall sought to dispel more of what he called "misinformation" about the law, saying counties in Maryland with strict limits on building homes in agricultural areas have higher farmland values than do neighboring counties with relatively looser development rules.
"When I go out and about," Hall said, "I’ve had some people tell me -- some local elected officials, believe it or not, and professionals in the field -- tell me, 'This will actualy help us achieve our goals .. this helps lock down, solidify many existing policies that we’ve had at the local level.'"
For the most part, he concluded, "We think that this (law) is very consistent with what local governments already have in place."