HEAR THIS HoCo: THE MPP NOISE LAW IS UNCONSTITUTIONAL

As previously discussed, the Maryland Noise Control Law that applies to Merriweather Post Pavilion was poorly conceived and drafted; in addition the law IS UNCONSTITUTIONAL.

This post will tackle how the law is unconstitutional overall.  In the future, I hope to explain in further detail the unconstitutionality of the separate provisions.

First, Howard is a Chartered Home Rule County. As the Maryland Court of Appeals has explained Howard County

has chartered home rule under Article XI-A of the Maryland Constitution. Article XI-A was proposed by Ch. 416 of the Laws of Maryland of 1914 and ratified by the voters on November 2, 1915. The Article, known as the Home Rule Amendment, enabled counties, which chose to adopt a home rule charter, to achieve a significant degree of political self-determination. Its purpose was to transfer the General Assembly’s power to enact many types of county public local laws to the Art. XI-A home rule counties. See generally, e.g., Bd. of Election Laws v. Talbot County, 316 Md. 332, 344, 558 A.2d 724 (1989); Griffith v. Wakefield, 298 Md. 381, 384, 470 A.2d 345 (1984); Town of Forest Heights v. Frank, 291 Md. 331, 342, 435 A.2d 425 (1981); Cheeks v. Cedlair Corp., 287 Md. 595, 597-598, 415 A.2d 255 (1980)

McCrory Corp. v. Fowler, 319 Md. 12, 570 A.2d 834 (1990).

Second, the General Assembly pursuant to the mandate of Article XI-A (2) of the Maryland Constitution enacted the Express Powers Act for Charter Counties.

Third, the Express Powers Act authorizes Howard and other Charter Counties to pass local laws for the to “provide for the prevention, abatement, and removal of nuisances.” MD Code, Local Government, § 10-328 Nuisances and health.  The Express Powers Act also authorizes:

(a) A county council may pass any ordinance, resolution, or bylaw not inconsistent with State law that:
(1) may aid in executing and enforcing any power in this title; or
(2) may aid in maintaining the peace, good government, health, and welfare of the county.

Maryland Local Government § 10-206. Additional legislative powers.

Fourth, in 1997 Howard County passed a noise code that limited among other sounds those at Merriweather Post Pavilion.

Fifth, Article XI-A (4) of the Maryland Constitution prohibits the General Assembly from passing any legislation for a single Charter County “on any subject covered by the express powers.”  In other words, it prohibits public local laws on matters regulated by a county under the Express Powers Act.

Sixth, in 2013 the General Assembly passed HB 1514 Howard County – Noise Control – Outdoor Concert Venues. which only applies in Howard County and no other county.

For the reasons explained below, the enactment of HB 1514 violated the Maryland Constitution. The Maryland Court of Appeals has explained the steps to this determination:

A conclusion that a statute violates the Home Rule Amendment requires two findings: (1) that the law in question is a public local law, as opposed to a public general law; and (2) that the law addresses a subject covered by the express powers granted to the particular geographical subdivision. See State’s Attorney v. Mayor & City Council, 274 Md. 597, 337 A.2d 92 (1975).

Park v. Board of Liquor License Commrs. for Balto. City, 338 Md. 366 (1995).

With regard to the second finding first, the Maryland Courts have recognized that the Express Powers Act authorizes a Charter County to regulate noise as a nuisance. Miller v. Maloney Concrete, 63 Md.App. 38, 491 A.2d 1218 (1985)(County regulation rejected on due process grounds).

Regarding the first finding to determine whether a law is constitutional, the Courts have found that laws such as HB 1514 which are limited in scope to just one county are public local laws and not public general laws which apply to two or more counties.  The Court of Appeals in the case of Cole v. Secretary of State found that a statute that amended various provisions regarding the courts in Cecil County was a public local law. The statute at issue in Cole when compared to HB 1514 has an analogous structure.  In HB 1514, the restated provisions of the Noise Control Law apply to a list of more than one county regarding hunting for example.  In Cole, the provisions regulating the courts also applied to more than one county. However, the Court found that some provisions, like subsection (c) (7) in the Noise Control Law were “purely mechanical with no effect outside of Cecil County.”

The Maryland Court of Appeals rejected the Attorney General’s argument that

the  Act  was  essentially  general,  rather  than  local  in  scope.  The  classification  of  a particular  statute  as  general  or  local  is  based  on  subject  matter  and  substance  and  not  merely  on form. Ness  v.  Baltimore, 162  Md.  529,  536 , 160 A.  8  (1932);  State  v.  Stewart, 152  Md.  419,  425 ,  137 A.  39   (1927).  Nor  does  the  fact  that  the  statute  takes  the  form  of  an  amendment  to  the  general law  make  it  a  public  general  law  rather  than  a  public  local  law  if  its  subject  matter  is exclusively local. State  v.  Stewart,  supra.  If  we  apply  the  test  adopted  by Judge Alvery in State  ex  rel. Webster v. Co. Commers. of Balt. Co. supra i.e. that local laws differ from general laws only in that they are confined in their operation to certain prescribed or definite territorial limits, the conclusion is inevitable: the Act was a local, not a general law.

Cole v. Secretary of State, 249 Md. 425 (Md. 1968).

The Court in Cole v. Secretary of State also ruled that

Our consideration of the provisions of the Act leads us to the view that in subject matter and substance it is a law which is confined in its operation to prescribed territorial limits, equally applicable to all persons within  such  limits.  It  is  thus  readily  distinguishable  from  a  general  law,  which  deals  with  the  general public  welfare,  a  subject  which  is  of  significant  interest  not  just  to  any  one  county,  but  rather  to  more than one geographical subdivision, or even to the entire state.

Cole v. Secretary of State, 249 Md. 425 (Md. 1968).

The Noise Control Law is confined in its operation to the territorial limits of  Howard County. It is not a general law because it only applies within one county and not any other geographical subdivision.  Thus, under the Court’s ruling in Cole, the statute is a public local law.

This conclusion is also supported by the Court’s reasoning in McCrory:

In Steimel v. Board, 278 Md. 1, 5, 357 A.2d 386, 388 (1976), we stated that a local law “in subject matter and substance” is “confined in its operation to prescribed territorial limits….” A general law, on the other hand, “`deals with the general public welfare, a subject which is of significant interest not just to any one county, but rather to more than one geographical subdivision, or even to the entire state.'” Steimel, 278 Md. at 5, 357 A.2d at 388, quoting Cole v. Secretary of State, 249 Md. 425, 240 A.2d 272 (1968).

McCrory Corp. v. Fowler, 319 Md. 12, 570 A.2d 834 (1990).

Furthermore, the Courts explained that previous rulings have

specifically rejected the contention made by the Board in this case that any amendment to a public general law must also be a public general law simply because it is an amendment.

“Otherwise, any law could be removed from the domain of public local laws by the mere act of the Legislature in calling it an amendment to a public general law. If such could be done in the present case, the Legislature could, by such a device, evade the constitutional prohibition in respect to local legislation.”

Stewart, 152 Md. at 425, 137 A. at 42 (citations omitted); see also Cole v. Secretary of State, 249 Md. 425, 433, 240 A.2d 272, 277 (1968) (“Nor does the fact that the statute takes the form of an amendment to the general law make it a public general law rather than a public local law if its subject matter is exclusively local.”) Adopting Respondent’s argument would “result in the complete frustration of the object of the [Home Rule] amendment.” Stewart, 152 Md. at 424, 137 A. at 41-42.

Park v. Board of Liquor License Commrs. for Balto. City, 338 Md. 366 (1995).

Finally, paraphrasing the Court’s ruling in Park:

Although [HB1514] as a whole is a public general law, the amendment at issue here, [subsection (c)(7)], has a subject matter which is “exclusively local to [Howard County].” Despite the fact that [HB 1514] amended a public general law, it becomes clear when one examines the geographic scope of its subject that it is a public local law.

The General Assembly CANNOT pass  a law local in scope that only regulates noise at outdoor concert venues in Howard County.  The so-called Merriweather Noise Law is unconstitutional.

 

Comments please.  If you think that something should be done about this unconstitutional law, say something. If you want to defend the law, say why the argument above is wrong.

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2 thoughts on “HEAR THIS HoCo: THE MPP NOISE LAW IS UNCONSTITUTIONAL

  1. All in for rescinding, removing, rejecting this unconstitutional legislation that puts the “Mock” in Democracy. Loved reading your history of the current County Executive’s sponsored legislation for protecting private property rights. Howard County property owners have a right to the restful and restorative “quiet enjoyment” of our homes. If only the MPP noise stayed in Howard County alone.
    After the May 30th-31st “Sweet ‘Lie'” Festival, which was not posted as an event on the MPP website and lasted from 9 a.m. to 11:30 p.m. both Saturday and Sunday, people from as far away as Baltimore and Prince Georges counties wrote in to the county’s about the noise invasions reaching them from MPP. All day property owners in Dunloggin and Centenniel had windows closed, while objects vibrated across shelves and tables inside their homes. Sunday night at 9:40 p.m. 94 dBA reached the Vantage Point neighborhood with the chaotic vibrations simultaneoously setting off two car alarms behind and in front of our home. After about ten weeks the county fined MPP for violating the 11 p.m. curfew for amplified electronic sound and for reaching the Gramercy building downtown at over 95 dBA.
    Another issue is that dBA is not the most “up-to-date” technology for measuring the impulses particularly from the bass frequencies. Excessive noise raises women’s stroke and heart-attack risk by 300% and men’s by 50%. They are literally killing us.

    Like

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