Maryland Attorney General Opinion 103OAG003

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 sit on the board when

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

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

contained more than 10,000 inhabitants. See 1927 Md. Laws, ch.

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

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

member “is absent or recused.” LU § 4-302(f)(1). Requiring the

. . . . 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

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)

(emphasis added), and use of the word “shall” in a statute is

Gen. 3] 13

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 3641867

at *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.