164 [91 Op. Att’y

 Anne Arundel County Bill 54-05 amended various portions of the 1

County zoning law to treat public charter schools similarly to certain

private schools. You also expressed concern about the manner in which

the County’s development regulations and permitting requirements are

applied to charter schools.

EDUCATION

PUBLIC SCHOOLS – APPLICATION OF LOCAL ZONING

REGULATIONS TO CHARTER SCHOOLS

September 1, 2006

The Honorable Donald H. Dwyer, Jr.

Maryland Delegate

You have requested our opinion on the application of local

zoning requirements to public charter schools. Your inquiry was

apparently triggered by an amendment of the Anne Arundel County

zoning ordinance that specifically addresses charter schools and that

restricts the location of public charter schools in certain zoning

districts through a special exception or conditional use process not

applicable to other public schools. You ask whether the State law 1

authorizing public charter schools preempts such local regulations.

In our opinion, the application of local zoning requirements to

public charter schools depends on whether the State has a property

interest in the facility housing the school. If the school is operated

in a facility owned or leased by a State entity, such as the local board

of education, local zoning requirements do not apply. However, if

the school is operated in a facility not owned or leased by a State

entity, that facility would be subject to local zoning requirements.

Thus, a local government with zoning authority could provide that

a privately-owned facility may house a public charter school within

certain zoning districts only pursuant to a special exception or as a

conditional use.
Gen. 164] 165

 Local boards of education could have established charter schools 2

prior to the 2003 legislation under their general authority to establish

public schools within their respective jurisdictions. ED §§4-108, 4-109.

At the time of the 2003 legislative session, the Frederick County Board of

Education was the only local board that had approved a public charter

school, although Baltimore City had established a New Schools Initiative

Program under which individual schools operate similar to public charter

schools. However, under the No Child Left Behind Act of 2001, the

availability of federal grant money for the implementation of charter

schools depended on the existence of “a specific State statute” that

permitted flexible operation and management of the schools. See 20

U.S.C. §7221i(1)(A). 

I

Public Charter Schools

 In 2003, after a five-year effort, the General Assembly enacted

legislation establishing the Maryland Public Charter School

Program. Chapter 358, Laws of Maryland 2003; see Title 9 of the

Education Article (“ED”), Annotated Code of Maryland. The

purpose of the program “is to establish an alternative means within

the existing public school system in order to provide innovative

learning opportunities and creative educational approaches to

improve the education of students.” ED §9-101(b). The statute 2

defines a “public charter school” as:

a public school that:

(1) Is nonsectarian in all its

programs, policies, and operations;

(2) Is a school to which parents

choose to send their children;

(3) Is open to all students on a

space-available basis and admits

students on a lottery basis if more

students apply than can be

accommodated;

(4) Is a new public school or a

conversion of an existing public school;
166 [91 Op. Att’y

 Many of these elements were apparently derived from the federal 3

No Child Left Behind Act. See 20 U.S.C. §7221i(1)(A)-(L).

(5) Provides a program of

elementary or secondary education or

both;

(6) Operates in pursuit of a

specific set of educational objectives;

(7) Is tuition-free;

(8) Is subject to federal and

State laws prohibiting discrimination;

(9) Is in compliance with all

applicable health and safety laws;

(10) Is in compliance with

[legal requirements concerning children

with disabilities];

(11) Operates under the

supervision of the public chartering

authority from which its charter is

granted and in accordance with its

charter and, except as provided in

§9-106 of this title, the provisions of

law and regulation governing other

public schools;

(12) Requires students to be

physically present on school premises

for a period of time substantially similar

to that which other public school

students spend on school premises; and

(13) Is created in accordance

with this title and the appropriate

county board policy.

ED §9-102. A charter may be granted to the staff of a public 3

school, a parent or guardian of a public school student in the county,

a nonsectarian nonprofit entity, a nonsectarian institution of higher
Gen. 164] 167

For the sake of brevity, we use the term “local board” in this

4

opinion to refer to the 23 county boards of education as well as the

Baltimore City Board of School Commissioners. 

 As “secondary public chartering authority”, the State Board is 5

responsible for acting in an appellate review capacity when a local board

denies an application and for determining whether a charter will be

granted for a restructured public school if the local board fails to act on an

application within a prescribed time period. ED §§9-103(b), 9-104(a)(4),

9-104(b). 

 The Model Policy is available at 6 www.marylandpublicschools.

org/NR/rdonlyres/64999462-AD67-47EO-9366-35457DCBACF2/7967/

ModelPolicyGuide.pdf.

education, or a combination of any of those individuals or entities.

ED §9-104(a)(2). However, a charter may not be granted to a home

school, a parochial school, or a private school. ED §9-104(a)(3).

An application for a public charter school is to be submitted

to the local board of education (“local board”), which is the 4

“primary public chartering authority.” ED §§9-103(a), 9-104(a).

The State Board is the “secondary public chartering authority.” ED

§9-103(b).5

Subject to a possible waiver by the State Board, a public

charter school must comply with the laws governing other public

schools. ED §9-106; see also ED §9-102(11). Professional staff at

a public charter school are required to hold the appropriate State

certification; employees of a public charter school have collective

bargaining rights guaranteed other public school employees. ED §§

9-105 and 9-108, respectively. Among other matters, the statute

requires each local board to develop a public charter school policy,

ED §9-110(a), mandates parity in funding between charter schools

and other public schools, ED §9-109(a), and addresses obligations

of charter schools to students with special needs, ED §9-107.

The Legislature directed the Maryland State Department of

Education (“MSDE”) to develop a model public charter school

policy as an aid to local boards in developing county policies.

Chapter 358, §2, Laws of Maryland 2003. See Maryland Public

Charter Schools Model Policy and Resource Guide (Rev. 9/1/2005)

(“Model Policy”).6
168 [91 Op. Att’y

See N.Y. Educ. Law §2853(g)(3)(a) (stating that, for purposes of 7

local zoning, charter schools are to be treated as nonpublic schools).

While the laws of some states establishing charter schools set

forth the status of such schools under local zoning laws, the 7

Maryland statute is silent on that subject. 

II

Analysis

As you noted in your request for this opinion, the State has

generally preempted the field of education from local regulation as

demonstrated by extensive State legislation on the subject.

McCarthy v. Board of Education, 280 Md. 634, 374 A.2d 1135

(1977). You suggested that this principle would preclude a local

government from subjecting public charter schools to zoning

regulation. However, the State Education Article does not explicitly

exempt public schools from local zoning or other land use

regulations. To respond to your question, we first discuss why a

traditional public school is exempt from local zoning regulation.

A. Application of Local Land Use Regulation to Traditional

Public Schools

We addressed the application of local land use regulation to

traditional public school property in a prior opinion. See 87

Opinions of the Attorney General __ (2002) [Opinion 02-011

(August 14, 2002)]. In that opinion, we concluded that, because a

local board is considered a State agency for land use purposes,

public schools owned by a local board are not subject to a local

government’s zoning authority. Id., slip op. at 4-6; see also City of

Baltimore v. State Dep’t of Health & Mental Hygiene, 38 Md. App.

570, 574, 381 A.2d 1188 (1978) (“municipality may not exercise

zoning jurisdiction over State-owned and used property unless the

State has subjected itself to the authority of the municipality”). This

is consistent with the general rule in most states that local zoning

regulations do not apply to public schools. See 1 Rapp, Education

Law § 4.01[4][b][i] (2005).
Gen. 164] 169

Absent a statutory exception, a local board may lease school 8

system property only in a manner consistent with its obligations as trustee

of the property. ED §4-114(a)(1); see 91 Opinions of the Attorney General

33 (2006). 

The exemption of State-owned land from local zoning

authority derives from the State’s sovereignty. 62 Opinions of the

Attorney General 941 (1977). Generally, the focus is on ownership

of the property rather than the property’s use. Bd. of Child Care of

the Baltimore Annual Conference of the Methodist Church, Inc. v.

Harker, 316 Md. 683, 695, 561 A.2d 219 (1989) (holding that

property owned by nonprofit corporation and used as State-licensed

and regulated child care facility not exempt from county zoning

regulations). 

Although the general rule set forth above applies to a State

entity such as a local board that holds a fee simple interest in

property, questions concerning zoning occasionally arise when a

governmental entity holds a property interest as a lessor or lessee. 

In 1977, Attorney General Burch concluded the State’s immunity

from local zoning regulations extends to private property that is

leased to a State entity. 62 Opinions of the Attorney General 45

(1977). The analysis differs, however, when a State entity leases

property to a private party. While State-owned property used by a

private entity for a public purpose remains exempt from local zoning

regulation, such property used for a private purposes is subject to

local zoning control. 73 Opinions of the Attorney General 238, 240

(1988); see also 78 Opinions of the Attorney General 58 (1993).8

By contrast, private schools may be subject to zoning

regulation that is inapplicable to traditional public schools. See, e.g.,

Creative Country Day School of Sandy Spring v. Montgomery

County Bd. of Appeals, 242 Md. 552, 219 A.2d 789 (1966)

(Montgomery County zoning ordinance, which required special

exception for private school without any similar requirement for

public school, did not violate equal protection principles). 

B. Application of Local Land Use Regulation to Public

Charter Schools

1. Public Charter School Facilities

There is no question that a charter school is a public school,

but the facility in which the school operates may or may not be a
170 [91 Op. Att’y

public building. An application for a charter school would ordinarily

include “[a] facilities plan that describes the types of facilities,

possible location, and the characteristics of the facility that will be

needed to ensure the appropriate implementation of the proposed

education program.” MSDE Model Policy §IV.K.3.h. Under

MSDE’s Model Policy, final approval of an application to establish

a public charter school would be contingent on the acquisition of

facilities consistent with the facilities plan. Id. 

A charter school may operate within a facility or in part of a

facility under the control of the local board. For example, the MSDE

Model Policy for charter schools contemplates that such a school

may be established by the conversion of an existing public school.

Model Policy, p. 1. Alternatively, the chartering entity may own the

facility used as a charter school or may lease space from a private

entity. In some instances, it may be the case that, at the time an

application for a charter school is filed, the sponsors of the school

may not have determined precisely where it will operate. 

2. Charter School in Public Facility

If a public charter school operates within a building owned by

the local board or other government entity, local zoning regulations

would not apply to that property as it is owned by the government

and used for a public purpose. See Brown v. Bd. of Educ., 347 U.S.

483, 493 (1954) (education is “perhaps the most important function

of state and local governments”); see also 68 Am Jur 2d Schools §6.

If the operators of the charter school are under an obligation to

transfer title to the facility to the school system, the same rationale

would appear to apply. 

3. Charter School in Facility Owned by Chartering

Entity or Other Entity

A more difficult question is posed if a charter school operates

in a facility owned by the chartering entity or by a private entity.

Should the charter school be considered to share a portion of the

State’s sovereignty and therefore be immune from zoning regulation

in its own right?

There is no question that the operation of a charter school

constitutes a public purpose. However, a government contractor or

licensee performing a governmental service pursuant to a contract

with the State does not become a State entity for purposes of zoning

immunity. Bd. of Child Care of the Baltimore Annual Conference
Gen. 164] 171

 We also note that, in municipalities and in non-charter counties, 9

a public building generally cannot be constructed without a referral to the

local planning commission. Annotated Code of Maryland, Article 66B,

§3.08; see also 87 Opinions of the Attorney General ___ (2002) [Opinion

02-011 (August 14, 2002)], slip op. at 5.

 In Baltimore City, schools are held in trust by the Mayor and 10

City Council rather than the Board of School Commissioners. ED §

4-114(a)(1).

of the Methodist Church v. Harker, 316 Md. 683, 561 A.2d 219

(1989). On the other hand, a charter school “within the existing

school system” might be viewed as more analogous to the State itself

than a government contractor or licensee. 

A consideration of the laws governing the siting and property

of traditional public schools is instructive. While traditional public

schools are immune from local zoning, they are not free of

regulation. A local board may not acquire a site or building for a

traditional public school without approval of the State

Superintendent of Schools. ED §4-115(b)(1). The local board is

required to consult and seek advice from a local commission or

agency with responsibility for county land use planning in selecting

the location for a new school facility. ED §4-116(a)(1). A site must

“conform as far as practicable to development plans for land use in

the county.” ED §4-116(a)(2). In some cases, a public hearing is

required before final approval of a siting decision. ED §4-116(b).9

The school property is then “held in trust” by the local board for the

benefit of the school system. ED §4-114(a); see 91 Opinions of the 10

Attorney General 33 (2006). When a facility is no longer needed as

a traditional public school, it is ordinarily first transferred to the

county government. ED §4-115. These requirements protect not

only the taxpayers’ investment, but control the location of schools

and the use of school property.

As noted above, the charter school statute is silent as to siting

of such schools and local land use regulation. None of the statutes

governing the location of traditional public school facilities would

apply to a charter school operated in a private facility. If the charter

school were immune from zoning regulation based on the State’s

sovereignty, there would apparently be no controls on the location

of charter schools. However, it seems unlikely that the General

Assembly intended that a charter school would have a blanket
172 [91 Op. Att’y

 The sample checklist developed by MSDE for use of local 11

boards in reviewing public charter school applications addresses multiple

matters relating to the proposed facilities and, specifically, planning and

zoning requirements. Model Policy, p. 24. This factor suggests that, in

the view of MSDE, local zoning regulations would apply, at least in some

instances.

 This is not to say that a local government could exclude school 12

facilities entirely from an area through its zoning regulations. In light of

the inherent beneficial nature of schools, an outright ban would serve no

purpose “reasonably related to the morals, health, welfare and safety of the

community.” See Cornell University v. Bagnardi, 68 N.Y.2d 583, 594-95,

503 N.E.2d 509 (1986); see also 2 Young, Anderson’s American Law of

Zoning § 12.10 (4 ed. 1996). th

exemption from land use regulation not enjoyed by a traditional

public school.

In our view, the absence of any reference to zoning regulation

in the charter school statute does not mean that a charter school in a

non-government facility is exempt from local land use regulations;

rather, local zoning regulations may control the location of charter

schools in such facilities. Thus, a local government with zoning

authority may require that the owner of the property obtain a special

exception or qualify as a conditional use in certain zoning districts.11

In summary, a local government may regulate the location of

public charter school on private property in particular zoning

districts through a special exception or conditional use process

unless the property was leased to the local board. 

12

III

Conclusion

In our opinion, the application of local zoning requirements

to public charter schools depends on whether the State has a property

interest in the facility housing the school. If the school is operated

in a facility owned or leased by a State entity, such as the local board

of education, local zoning requirements do not apply. However, if

the school is operated in a facility not owned or leased by a State

entity, that facility would be subject to local zoning requirements.

Thus, a local government with zoning authority could provide that

a privately-owned facility may house a public charter school within
Gen. 164] 173

certain zoning districts only pursuant to a special exception or as a

conditional use.

J. Joseph Curran, Jr.

Attorney General

William R. Varga

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice