Gen. 17] 17

COMMUNITY COLLEGES

HISTORIC PRESERVATION – COMMUNITY COLLEGE PROJECT

SUBJECT TO STATE, BUT NOT LOCAL, HISTORIC

PRESERVATION REGULATION

February 27, 2002

Clyde “Rocky” Sorrell, Esquire

General Counsel

Montgomery College

You have asked for our opinion whether the Maryland

Historical Trust or the Montgomery County Historic Preservation

Commission has jurisdiction over two capital projects proposed to

be constructed by Montgomery College (the “College”) on State land

adjacent to its Takoma Park campus. You included with your letter

a memorandum analyzing this issue, in which you concluded that the

Maryland Historical Trust would have jurisdiction over these

projects. 

We have reviewed the matter and agree with your conclusions

that the projects are subject to the consultative process of the

Maryland Historical Trust and that they are not subject to the work

permit process administered by the Montgomery County Historic

Preservation Commission.

I

Background

A. The Projects

The Takoma Park campus of the College is currently separated

by a right-of-way, which contains railroad and subway tracks, from

the Jesup Blair Park (the “Park”), a public park established by the

State of Maryland in the early 1930's pursuant to a devise of the park

property to the State in the will of Violet Blair Janin. In 1933, the

State accepted the park property, together with the terms and

conditions of the devise, and authorized the Maryland-National

Capital Park and Planning Commission (“MNCPPC”) to provide for

the perpetual maintenance of the property as “a park open to the
18 [87 Op. Att’y

 We have been advised that Jesup Blair Park is the only property

1

managed by the MNCPPC that is held in the name of the State, as opposed

to a county or the MNCPPC itself.

 We understand that the College is currently working with 2

consultants to assess the eligibility of the Blair Mansion for listing on the

National Register of Historic Places. The obligation of a State agency to

consult with the Maryland Historical Trust regarding a capital project

depends on whether a potentially affected property is “listed in or eligible

for the Maryland Register of Historic Properties.” Annotated Code of

Maryland, Article 83B, §5-617. The Maryland Register of Historic

Properties includes “all properties listed in or determined ... to be eligible

for listing in the National Register of Historic Places.” Id., §5-615(b).

public,” and to take possession of, manage, and control the park.

Chapter 505, Laws of Maryland 1933, now codified at Annotated

Code of Maryland, Article 28, §5-106. The Park contains an 1

historic residence, known as the Blair Mansion, which has been

included by Montgomery County in its Master Plan for Historic

Preservation.2

Apparently because the College’s current Takoma Park campus

lacks room for new buildings, College expansion plans have

proposed limited use of the Jesup Blair Park. The MNCPPC has

approved a proposal under which the MNCPPC would lease to the

College, for a nominal sum, sufficient acreage within the Park to

hold a cultural arts center (to be named the “Violet Blair Janin

Cultural Arts Center”) and a pedestrian bridge that would allow for

passage over the railroad and subway tracks between the existing

Takoma Park campus and that Center and the Park. Some interested

citizen groups have alleged that construction of the projects in the

Park would result in the destruction of large numbers of ancient

trees, an asset of the Park property highly valued by Violet Blair

Janin, and in significant adverse impacts to the Blair Mansion. 

B. State and County Regulatory Schemes for the Preservation

of Historic Structures

Inasmuch as the College capital projects pose at least a

potential threat to the Blair Mansion and its environmental setting,

the question has arisen whether the projects are subject to review or

approval under State and County historic preservation laws. 
Gen. 17] 19

Article 83B of the Annotated Code of Maryland, §§5-617

through 5-619, establishes a scheme under which “State units” must

consult with the Maryland Historical Trust in connection with

certain capital projects. For purposes of the statute, a “State unit” is

defined broadly as follows:

(1) “State unit” means a unit of the State

government.

(2) Except as provided in paragraph (3)

of this subsection, “State unit” includes:

(i) a unit in a principal department of

the Executive Branch of the State government;

and

(ii) the governing body of a single

county or multicounty district or authority.

(3) “State unit” does not include:

 (i) the board of review of a principal

department;

(ii) the governing body of a local

government; or

(iii) a unit that a local government

creates.

Article 83B, §5-601(x) (incorporating by reference Annotated Code

of Maryland, State Government Article, §11-101(i)). In addition,

consultation with the Maryland Historical Trust is required “prior to

approval of the use of the proceeds of State general obligation bonds

by the Board of Public Works.” Article 83B, §5-617(a). 

The General Assembly has also authorized local governments

to enact historic preservation laws. Within the MarylandWashington Regional District, Annotated Code of Maryland, Article
20 [87 Op. Att’y

 The General Assembly originally delegated authority to local 3

governments to enact historic preservation laws in the general statewide

zoning enabling act. See Chapter 874, Laws of Maryland, 1963, now

codified in Annotated Code of Maryland, Article 66B, §8.01 et seq. In

1975, the Legislature recodified that authority, for charter counties other

than Montgomery and Prince George’s Counties, in the Express Powers

Act and , for Montgomery and Prince George’s Counties, in the Regional

District Act. Chapter 70, Laws of Maryland 1975, enacting Article 25A,

§5(BB); Chapter 892, Laws of Maryland 1975, enacting Article 66D, §8-

101(c), now codified as Article 28, §8-101(c). A year later, the General

Assembly amended Article 25A, §5(BB) to clarify that charter counties

had the same powers to enact historic preservation laws as non-charter

counties had under Article 66B. Chapter 477, Laws of Maryland 1976.

Materials in the legislative file for Chapter 477, submitted by the Attorney

General’s Office and the Department of State Planning, state that the

purpose of the 1975 and 1976 bills was to transfer the authorization for

historic preservation laws from Article 66B, which does not generally

apply to charter counties, and to clarify that this authority is in addition to

other planning and zoning authority in charter provisions or local laws.

Statement and Explanation on HouseBill 1151 (1976); Letter of Vladimir

Wahbe, Secretary of State Planning, to Joseph E. Owens, Chairman,

House Judiciary Committee (February 18, 1976).

 Your question appears to assume that a project may be subject to 4

review by either a local historic preservation commission or the Maryland

Historical Trust, but not both. However, nothing in the pertinent statutes

or ordinances mandates that a project subject to local historic preservation

review would be automatically exempt from State review, or vice versa.

Because we conclude that the College projects are subject to review under

one scheme but not the other, we need not address the question whether

(continued...)

28, §8-101(c) authorizes the Montgomery and Prince George’s

District Councils to enact historic preservation regulations.3

Implementing this authority, the Montgomery County Code sets out

a scheme, administered by the Montgomery County Historic

Preservation Commission, under which an historic area work permit

must be obtained for work on public or private property containing

an historic resource designated in the Master Plan for Historic

Preservation. Montgomery County Code, Chapter 24A, §§24A-1

through 24A-13. 

You have asked for our opinion on which of these regulatory

schemes applies to the capital projects affecting the Jesup Blair Park

and Blair Mansion. In the memorandum accompanying your 4
Gen. 17] 21

 (...continued) 4

both schemes might apply in other circumstances.

 You have not asked, and we do not address, the question whether 5

jurisdiction of the Montgomery County Historic Preservation Commission

over projects affecting historic resources might extend to a project of a

local public entity. See Annapolis v. Anne Arundel County, 271 Md. 265,

316 A.2d 807 (1974). Nor do we address the question whether capital

projects sponsored by the MNCPPC would be subject to the State and

County historic preservation schemes. 

request, you concluded that the College is a State, rather than a local,

agency and that its capital projects are therefore subject to the State

historic preservation scheme embodied in Article 83B of the State

Code, and not to the local scheme set forth in Chapter 24A of the

County Code.5

II

Analysis

A. Maryland Historical Trust Process

In our view, because the College’s projects involve the use of

State bond proceeds, they would be subject to the Maryland

Historical Trust consultation process even if they were not sponsored

by a “State unit.” If the College is a “State unit,” then it would be

required to comply with the Historical Trust process for that reason

as well. 

B. Local Historic Preservation Process

1. Application of Local Historic Preservation Schemes to

State Entities

The general rule is that the State is not subject to local zoning

laws unless the General Assembly has clearly indicated its intention

that the State be bound. See 85 Opinions of the Attorney General

114, 116-17 (2000) Based on that rule and a review of historic area

zoning enabling legislation, Attorney General Burch concluded that

State projects did not have to obtain the approval of a local historic

preservation commission. 58 Opinions of the Attorney General 512

(1973).
22 [87 Op. Att’y

 In Montgomery County, the Governor appoints members from a 6

list developed by a nominating committee of Montgomery County

residents appointed by the County Council, the County Executive, and the

school’s alumni association; a student member is appointed without

involvement of the Senate. ED §16-411.

A year after that opinion was issued, the Court of Appeals held

that Anne Arundel County was required to obtain a permit from the

Annapolis Historic Preservation Commission before the county

could raze a church on county land within the Annapolis historic

district. City of Annapolis v. Anne Arundel County, 221 Md. 268,

316 A.2d 807 (1974). However, neither in that case nor in any other

case has the Court held that the State is subject to local historic

preservation laws. Moreover, the Court of Appeals has subsequently

affirmed the general rule that the State is not bound by local zoning

laws “unless the General Assembly clearly indicates a contrary

intent.” Pan American Health Organization v. Montgomery County,

338 Md. 214, 226, 657 A.2d 1163 (1995). 

2. Whether Community Colleges are State Entities

Community colleges are locally oriented and, to some extent,

locally funded entities that are created by State law. As such, they

have characteristics of both State and local agencies. Whether a

community college is treated as a State or local entity depends on the

particular context in which the question arises. Thus, even though

a local government is responsible for funding an agency, the courts

have held that the unit can be a State agency for various purposes.

Rucker v. Harford County, 316 Md. 275, 283-85, 558 A.2d 399

(1989) (question of whether agency is State or local depends on

whether creation and ultimate control of agency lies with State or

local government).

The governance of a community college is controlled by State

law. The State Education Article (“ED”) creates a board of trustees

in each county that has one or more community colleges. ED §16-

101(a). The members of the board are appointed by the Governor

with the advice and consent of the Senate. ED §16-101(c); §16-

411. The board operates subject to the authority of the Maryland 6

Higher Education Commission (“MHEC”), a State agency. ED §16-

103. 

A community college is also treated as a local agency for

certain purposes. Under the Local Government Tort Claims Act, a
Gen. 17] 23

 That law was later revised and has been succeeded by the Public 7

Ethics Law, Annotated Code of Maryland, State Government Article, §15-

101 et seq. The State Ethics Commission, which is now charged with

construing that law in advisory opinions, has consistently treated

community colleges as State agencies for purposes of the financial

disclosure and secondary employment provisions of the Public Ethics

Law. See State Ethics Commission Opinions 96-03, 92-6, 81-10, 80-21,

80-9, compiled in COMAR 19A. 

community college is considered a “local government.” Annotated

Code of Maryland, Courts & Judicial Proceedings Article, §5-

301(c)(9). And a community college is governed by local

government investment guidelines. Annotated Code of Maryland,

Article 95, §22F(a)(6)(ii). 

A community college is funded by both the county and the

State, according to various statutory formulas. ED §16-305. A

college budget must be prepared in accordance with county fiscal

procedures and approved by the county governing body. ED §16-

301(d)-(e); see also ED §16-304 (authorizing county governing

bodies to appropriate funds to establish and operate community

colleges). Community college budgets are thus subject to a local

government’s “spending affordability” process. 79 Opinions of the

Attorney General 34 (1994). Each community college is to be

audited annually for compliance with MHEC guidelines as to fiscal

and operating procedures. ED §16-315. While the audit may be

performed by the Legislative Auditor, it may also be performed by

a local government auditor with the concurrence of the Legislative

Auditor. ED §16-315(d),(f). 

In a 1973 opinion, Attorney General Burch reviewed the State

law governing community colleges, which was substantially similar

to the current provisions of the Education Article, and concluded that

Montgomery College trustees were local, rather than State, officials

for purposes of the State law that then required financial disclosures

by certain public officials. 58 Opinions of the Attorney General 7

343, 365-67 (1973). That conclusion rested on the local nature of

the college and the fact that, although the board of trustees was

appointed by the Governor, the board exercised its powers

substantially free from State control and subject to the fiscal control

of the county. 

Shortly thereafter, however, the Court of Appeals concluded

that a community college is a State agency for purposes of sovereign
24 [87 Op. Att’y

immunity. Board of Trustees v. John K. Ruff, Inc., 278 Md. 580,

586-87, 366 A.2d 360 (1976); Charles E. Brohawn & Bros., Inc. v.

Board of Trustees, 269 Md. 164, 304 A.2d 819 (1973). In Ruff, the

Court based its holding on the State interest in public education, the

history of the creation of community colleges by the State, the

powers conferred on the boards of trustees under public general

laws, extensive State funding of the schools, and other factors.

Similarly, the Court has held that because a community college was

“created and controlled by the State,” it was not bound by county

charter provisions regulating the receipt and disbursement of funds

by county agencies. Prince George’s County v. Board of Trustees,

271 Md. 21, 27, 313 A.2d 678 (1974). 

The rationale of those cases led Attorney General Sachs to

conclude that a community college is a State agency for purposes of

the State law that requires agencies to obtain the approval of the

Board of Public Works before disposing of agency property. 64

Opinions of the Attorney General 66 (1979). In reaching that

conclusion, the Attorney General cautioned: “A determination that

a particular entity, especially one with trappings of both a State and

a local agency, is a State agency for certain purposes does not

necessarily require the conclusion that it is a State agency for all

purposes. Rather, whether a particular agency is a State or local

agency depends upon the context within which the particular

question arises.” Id. at 70 n.1. See also 62 Opinions of the Attorney

General 743, 749 n.3 (1977) (noting that a community college may

be a State agency for some purposes and a county agency for others).

We are aware of no case law or other authority that addresses

whether a community college is a State agency for purposes of local

historic preservation regulation. However, several aspects of the

College projects about which you inquire and of the law governing

Montgomery College suggest that these projects are State projects

exempt from local historic preservation regulation. With respect to

real property used by Montgomery College, the General Assembly

has vested local officials with authority over site selection. ED §16-

413. While that statute does not make reference to historic

preservation regulation or other zoning regulations, it does specify

that any site recommended and approved for the College “[c]omply

with State regulations and ... [c]onform as far as practical with the

land use plans of the county.” ED §16-413(a)(3)(ii)-(iii) (emphasis

added). The limitation of local authority to site selection, the

mandate that the site comply with State regulations, and the qualified

reference to local regulation suggest that the Legislature did not

contemplate that the College would be fully subject to local land use
Gen. 17] 25

regulation. Moreover, these projects are located on State land and,

because they are partially funded with State bond proceeds, are

already subject to the State historic preservation process. In our

view, the projects are exempt from local historic preservation

regulation.

III

Conclusion

In our opinion, the College projects are subject to the

consultative process of the Maryland Historical Trust under Article

83B and are not subject to the work permit process under the

Montgomery County Code, administered by the Montgomery

County Historic Preservation Commission. While the College need

not obtain a work permit from the Montgomery County Historic

Preservation Commission, it may find it desirable to voluntarily

solicit the views of that agency and other interested groups in

connection with these or similar projects.

J. Joseph Curran, Jr.

Attorney General

Judith A. Armold

Assistant Attorney General

Robert N. McDonald

Chief Counsel,

 Opinions and Advice