60 [90 Op. Att’y

ENVIRONMENT

PUBLIC UTILITIES – SANITARY DISTRICTS – SMART GROWTH LAW

– OBLIGATION OF SANITARY COMMISSION TO PROVIDE

SEWER CONNECTION WHEN STATE FUNDING IS LIMITED BY

SMART GROWTH LAW

April 13, 2005

Board of County Commissioners

Queen Anne’s County

You have requested our opinion concerning the law governing

the County’s extension of its sewerage system to subdivisions on

Kent Island, where many properties have failing septic systems.

State funding for this extension would apparently be limited to

providing service to developed properties. However, in some of the

same subdivisions there are undeveloped lots that are barred by

regulation from employing individual septic systems due to lot

conditions. State law generally requires that a county sanitary

commission provide a connection to a sewerage system for all

properties abutting the road or right-of-way in which a sewer line is

placed. With reference to four scenarios, you have asked about the

extent to which the County may limit new service coincident with

the limitations on State funding. 

We have taken the liberty of summarizing and reordering your

questions for purposes of analysis. Specifically, you have asked: 

1. If vacant lots are interspersed among occupied lots within

a subdivision and front on the roads and rights-of-way in which the

sewer lines will be installed, may the vacant lots be excluded from

service? 

2. May vacant lots be excluded from service if the lots do

not front on the roads and rights-of-way in which sewer lines will be

installed? For example, if a block consists of vacant lots on both

sides of the street, must the County place a sewer line along the

street to serve those lots?

3. Assume that vacant lots interspersed with occupied lots

front on the roads and rights-of-way in which the sewer lines will be

installed. Assume also that these lots are unbuildable under current
Gen. 60] 61

septic system regulations, but that development of the lots might be

approved if alternative technologies for sewage disposal are

employed or if lots are combined to create larger lots that can use

conventional septic systems. May these lots be excluded from

service? Once the lots become buildable, would the County be

required to provide connections to the system for these lots?

4. May the County exclude from service those farms and

woodland areas that front interceptor lines that will connect

subdivisions to the treatment plant?

For the reasons explained below, we conclude: 

1. The County will be required to provide a connector for

each vacant lot within a service area that is interspersed among

developed lots along a right-of-way in which a sewer line is laid.

Nonetheless, sewerage service may not necessarily be available for

every such lot. For example, the County might impose a moratorium

or other restriction on service for new development because of

utility-related reasons such as insufficient treatment plant capacity

or the Secretary of the Environment might impose restrictions on

new connections for the protection of waters of the State. Absent

such restrictions, however, the owner of the vacant lot would be

eligible for sewerage service.

2. The County is not necessarily obligated to provide service

to a street with vacant lots. Under State law, a sanitary commission

may determine the extent of sewerage services by defining its

service area. If there is no current need for a sewer line along a

street and it would be feasible to design a system without laying a

line along that street, the street could be excluded from the defined

service area. 

3. Consistent with our answer to the first question, the

County would be required to provide a connector for each vacant lot

within a defined service area, even if an alternative sewage disposal

technology were available or a combination of that lot with another

would make a septic system technically feasible. Under State law,

a lot owner may not use a traditional septic system or an alternative

technology for sewerage service within a sanitary district if a public

sewerage system is available. Thus, if vacant lots interspersed

among developed lots are within the service area, neither traditional

septic systems nor alternative technologies may be used. On the

other hand, if public sewerage service is unavailable due to other

factors, the lot owner may be able to combine lots in a manner that
62 [90 Op. Att’y

 The subdivisions and the anticipated phase in which sewerage 1

service would be extended are as follows: Kent Island Estates and

Romancoke (Phase 1); Kentmorr and Queen Anne’s Colony (Phase 2);

Batt’s Neck (Normans), Chesapeake Estates, Matapeake Estates, and

Sunny Isle of Kent (Phase 3); Dominion and Marling Farms (Phase 4); and

Tower Gardens (Phase 5). 

would allow construction of an individual septic system or employ

alternative technology for sewage disposal.

4. A sanitary commission is not required to provide

sewerage service outside defined service areas. The placement of

an interceptor line necessary to connect a service area to a treatment

facility does not make properties outside the service area that abut

that line eligible for sewerage service. Thus, the County would not

be required to provide service to the woodlands and farms

mentioned in your question. 

I

Background

Queen Anne’s County is considering an extension of its

wastewater collection or sewerage system to several subdivisions

where lots are currently served by individual septic systems. Many

of those individual systems are failing, and thus cause or threaten

environmental and health problems. The extension of sewerage

service would likely take place in several phases over a number of

years. We understand that the affected subdivisions are not within 1

“priority funding areas,” as defined in the State’s Smart Growth

Law.

As explained in your letter, the opening of the initial span of

the William Preston Lane, Jr. Memorial Bridge brought with it

considerable land speculation in Queen Anne’s County during the

1950s, particularly on Kent Island, where approximately 7200 lots

were platted and recorded. At the time, the County lacked zoning

regulations. Some of the lots were improved, relying on individual

wells and septic systems. While the County extended its sewerage

system to a significant number of properties in 1980, many lots

continue to rely on septic systems, which have degraded over time.
Gen. 60] 63

 Your letter also addressed provisions of the County ordinance

2

governing the County’s Sanitary District, Chapter 24 of the Public Local

Laws of Queen Anne’s County (“PLL”). In accordance with our usual

practice, we defer to your County Attorney on questions of local law. 

To give an example of the current need for sewerage service,

you noted that two subdivisions, Kent Island Estates and

Romancoke, have been identified for future sewerage service since

the County adopted its first comprehensive water and sewer plan in

1979. These two communities currently include approximately 765

homes and 820 vacant lots. The Queen Anne’s County Health

Department, Environmental Health Division, estimates that 80% of

existing septic systems in these two subdivisions meet the State’s

definition of a failed septic system. Many of the vacant lots would

not be able to sustain a septic system under current standards,

because of the high water table, poor soil drainage, and small lot

sizes. In fact, only six of the 820 vacant lots have approved

percolation tests. 

We understand that you have met with representatives of the

Maryland Department of Planning concerning the extension of

sewerage service to areas in need, the application of the State’s

environmental and Smart Growth statutes, and the availability of

funding assistance. From those discussions, you believe that State

funding would be available for extension of a sewerage system to

serve existing developed lots with failing septic systems, but that

State funding would not be available to serve new development or

vacant lots or other properties along the path of the sewerage system.

You point out that State law requires a county sanitary

commission to provide services to abutting property owners. See

Annotated Code of Maryland, Environment Article (“EN”) §9-601

et seq. You are concerned about reconciling this mandate with the

limitations on State funding and ask for our opinion on your

obligation to provide service. 

2
64 [90 Op. Att’y

In accordance with our policy governing requests for opinions 3

from local governments, you included with your request a legal

memorandum prepared on your behalf by Patrick M. Shelley, Esquire,

McGuire Woods, LLP, which addressed both State and County law.

 Priority funding areas are designated by statute or by a county 4

applying statutory criteria. SFP §§5-7B-02, 5-7B-03. 

 The State programs subject to the funding limitations of the 5

Smart Growth Law are set forth in the definition of “growth-related

project.” See SFP §5-7B-01(d).

The Board of Public Works may waive the restrictions of the Smart

Growth Law if it finds that there are extraordinary circumstances, based

on criteria set forth in the statute. SFP §5-7B-05. In addition, a State

agency may approve funding for a project outside a priority funding area

under certain circumstances without the need for Board of Public Works

approval, e.g., where the project is required to protect the public health or

safety or where federal funds are involved and compliance with the Smart

Growth statute would be inconsistent with federal law. SFP §5-7B-06.

None of these factors appears to apply to extending service to

undeveloped properties. 

II

Effect of Smart Growth Law

The legal memorandum accompanying your letter asserts that 3

a limitation on State funding for a project to connect a sewerage

system to vacant lots abutting the proposed system “appears to be

directly in conflict with the State’s mandate that the County provide

sewer service to all abutting parcels when it installs a new line.”

The restriction on State funding to support new development is

premised on what is commonly referred to as the State’s “Smart

Growth Law,” codified primarily in the Annotated Code of

Maryland, State Finance and Procurement Article (“SFP”) §5-7B-01

et seq. Subject to some exceptions, the Smart Growth Law restricts

State funding for growth-related projects to those within “priority

funding areas” and limits State funding for growth-related projects 4

outside those areas. SFP §5-7B-04(a). We understand that the 5

subdivisions in question are not in one of the County’s priority

funding areas.

The availability of funding is no doubt a key factor in the

County’s decision to proceed with construction of sewerage

infrastructure. Nonetheless, the County’s obligations under State
Gen. 60] 65

law to serve certain properties and the availability of State funding

for such services are distinct issues. As we have previously

explained, “the [Smart Growth] statute does not prohibit altogether

development of growth-related projects or restrict the authority of

private developers or political subdivisions to undertake such

projects. Rather, it simply prohibits the State from subsidizing such

projects outside of designated areas.” 84 Opinions of the Attorney

General 33, 34 (1999). 

III

Sanitary District

A. Generally

The Queen Anne’s County Sanitary District is established by

local law. PLL §24-1.A. The enabling authority for that law is set

forth in State law. EN §9-601 et seq. A sanitary district is “a public

corporate body that exercises public and essential government

functions, for the public health and welfare.” EN §9-607(a). It is

established pursuant to the police powers of the State. 58 Opinions

of the Attorney General 186, 189 (1973). Except as limited by Title

9, Subtitle 6 of the Environment Article, a sanitary district has all the

powers granted to Maryland corporations under the General

Corporation Law. EN §9-632(b).

The governing body of a sanitary district is a sanitary

commission. EN §9-621. In Queen Anne’s County, the County

Commissioners sit as the District’s Sanitary Commission. PLL

§24-4.A. 

Among other powers, a sanitary district may acquire, construct,

and operate a sewerage system. EN §§9-601(j) and (n), 9-607(b),

and 9-665. A sanitary district has county-wide authority. In

considering the provision of services, a sanitary commission may

create or alter individual service areas and service subareas within

the district. EN §§9-647, 9-648, and 9-652. A “service area” is a

“defined geographic area that is established as a service area by a

sanitary commission under [Title 9, Subtitle 6 of the Environment

Article].” EN §9-601(l). 

To carry out its duties, a sanitary district may acquire real

property. EN §9-668. Subject to limited exceptions, a sanitary

district may acquire property by eminent domain. EN §9-633. It may

accept grants, EN §9-638; borrow money from government agencies,
66 [90 Op. Att’y

 Agricultural property may not be assessed until a connection is 6

made to the property. The total assessment is then limited to a maximum

of 300 feet of frontage. EN §9-657(e).

 Of course, for a special benefit assessment to be valid, the 7

property assessed must receive a special benefit from the public

improvement. Beauchamp v. Somerset County Sanitary Comm’n, 243

Md. 98, 102, 220 A.2d 135 (1966). The benefit to unimproved properties

presumably is the eligibility to use the sewer line at some future time

when the property is improved.

 While a sanitary district operates as a public utility, its operations 8

generally are not subject to regulation by the Public Service Commission.

See, e.g., Annotated Code of Maryland, Public Utility Companies Article

(“PUC”), §5-204 (PSC’s authority over sewerage system construction

does not extend to sanitary commissions). 

EN §9-640; and set benefit assessments, connection charges, and

service charges, EN §§9-656, 9-658, and 9-662. 

A sanitary district may classify property for assessment

purposes in accordance with State law. EN §9-657. Except for

property classified as agricultural, benefit assessments may be 6

applied to any property that abuts a sewer line, regardless of whether

the property is improved or unimproved. EN §9-656(c). A sanitary 7

district may issue tax exempt bonds to finance a project. EN

§§9-608(b) and 9-682 et seq. If benefit assessments are inadequate

to cover debt service in the next taxable year, an ad valorem tax may

be imposed on property in the service area to cover any deficiency.

EN §9-694. 

B. Obligation to Provide Service

A sanitary district is a public utility. Normally, it acts as the 8

sole provider of sewerage service in a locale. See 11 McQuillin, The

Law of Municipal Corporations §31.17 (3rd ed. rev. 2000). The

Legislature contemplated that sanitary districts would operate

sewerage systems as monopolies. Highfield Water Co. v. Pub. Serv.

Comm’n, 488 F. Supp. 1176, 1190 (D. Md. 1980). 

Public utility status implies a duty to provide sewerage service

without discrimination. As the Court of Appeals has stated:
Gen. 60] 67

 The Sanitary Commission of Worcester County may initially 9

forgo providing a connector to a property that lacks a plumbing system at

the time of construction of the system. EN §9-661(a)(2).

It is axiomatic that a public service

corporation, private or municipal, is under a

duty to furnish to all persons applying

therefore the service which it offers without

discrimination ... where the service requested

is within the reasonable range of its plant,

equipment, lines or mains. 

Home Owners’ Loan Corp. v. Mayor & City Council of Baltimore,

175 Md. 676, 680, 3 A.2d 747 (1939); see also Bair v. Mayor & City

Council of Westminster, 243 Md. 494, 498, 221 A.2d 643 (1966). In

the case of a sanitary district, the General Assembly has defined this

obligation in legislation.

When constructing a sewer line, a sanitary commission “at its

own expense, shall construct a connector to the property line of each

parcel that abuts the way in which the ... sewer line is laid.” EN

§9-661(a)(1). In most districts, that obligation pertains to both

improved and unimproved properties. When construction is 9

complete, the sanitary commission must give notice to each abutting

property owner. EN §9-661(b). “On receipt of the notice of

completion and by a time set by the sanitary commission,” the owner

is required to pay the appropriate connection charge and connect to

the sewerage system. EN §9-661(c). These provisions are

mandatory, and the only discretion accorded the sanitary commission

is the timing of the connection. The obligation under EN §9-661 to

construct connectors pertains to sewer lines within a service area

only if the lines are designed to serve individual properties; it does

not apply to interceptor lines designed primarily to carry the sewage

collected by the system to a treatment facility.

A sanitary commission must also provide a property owner

whose property does not abut a sewer line with a connection to the

sewerage system at the property owner’s request. EN §9-659.

However, this obligation extends only to properties within the

defined service area. The law sets forth criteria that the sanitary

commission must consider in defining a service area:

... in considering a proposed service area, the

sanitary commission ... may not create or
68 [90 Op. Att’y

 While a sanitary district has broad discretion to define service 10

areas within the county, or in the case of a multi-county district, within the

counties, that discretion is not unlimited. A sanitary district may not

compel a municipality to forfeit its rights in operating an existing

municipal system. EN §9-643. See Garrett County Sanitary Dist. v.

Mayor & Town Council of Oakland, 249 Md. 400, 405, 240 A.2d 228

(1968).

 A moratorium is by definition a temporary restriction. Smoke 11

Rise, Inc. v. Washington Suburban Sanitary Comm’n, 400 F. Supp. 1369,

1383 (D. Md. 1975). While sewer hook-ups may be delayed for utilityrelated reasons, a sanitary commission is expected to make provision in

planning any expansion for reasonable and natural growth. 11 McQuillin,

The Law of Municipal Corporations §31.17 (3rd ed. rev. 2000). In

planning system development, a county must also take into account

development considerations reflected in its comprehensive plan. EN §§9-

505(a)(1), 9-511; see also COMAR 26.03.01.02A (“The objective of the

county [water and sewerage] plan is to develop the water and sewerage

systems in a way consistent with county comprehensive planning”).

change a service area unless they find that the

creation or change:

(1) Is necessary for the existing and

future health, safety, and welfare of the public

in general; and

 (2) Is feasible financially and from an

engineering standpoint.

EN §9-647(b). A sanitary commission has discretion whether to 10

extend any project to property outside a defined service area. EN

§9-666.

Other factors may affect the availability of public sewerage

service. For example, if the sanitary commission lacked sufficient

treatment capacity at the time new sewer lines were installed, it

could declare a moratorium or impose restrictions that delay

connections for new development for a reasonable period. See, e.g.,

Ungar v. State, 63 Md. App. 472, 492 A.2d 1336 (1985), cert.

denied, 475 U.S. 1066 (1986) (upholding sewer moratorium against

constitutional challenge); see also 2 Rathkopf, The Law of Zoning

and Planning §15:27 (4 ed. rev. 1978). Furthermore, to safeguard th 11

against water pollution, the Secretary of the Environment might

restrict sewerage service to undeveloped properties, through a grant
Gen. 60] 69

 Of course, other laws may affect the ability to develop a 12

particular lot, including laws unrelated to the availability of sewerage

service. For example, a local adequate facility ordinance might affect

whether or not a particular propertymay be developed at a particular time,

notwithstanding the availability of sewerage service.

condition in connection with State or federal funding or through an

administrative or judicial enforcement action. See, e.g., Dep’t of

Env’t. v. Showell, 316 Md. 259, 558 A.2d 391 (1989) (recognizing

Department’s authority to execute consent order to further

prevention of water pollution). In fact, a county is prohibited from

approving a subdivision plat or granting a building permit if the

current sewerage system is inadequate to serve the proposed

development. EN §9-512; Wincamp P’ship v. Anne Arundel County,

458 F.Supp. 1009, 1012 (D.Md. 1978).

IV

Analysis

A. Vacant Lots Interspersed with Developed Properties

You initially asked whether the County is obligated to provide

sewerage service to vacant lots interspersed among developed

properties that will be served by the proposed sewerage system. We

assume for purposes of this question that the vacant lots are located

within the same service area as the developed properties. Under EN

§9-661(a), the sanitary commission is obligated to provide, at its

own expense, “a connector to the property line of each parcel that

abuts the way in which the sewer is laid.” 

Eligibility for a sewer connector, however, does not necessarily

mean a right to sewerage service. As explained in Part III of this

opinion, lack of treatment facility capacity or similar utility-related

reasons might result in a moratorium or other restrictions on new

connections. Furthermore, the Secretary of the Environment might

limit connections to a sewerage system under the Department’s

broad authority to safeguard against water pollution. However,

absent lawful restrictions, the owner of a vacant lot within a service

area would be eligible for service when the property is developed.12
70 [90 Op. Att’y

B. Vacant Lots Fronting Road Where Sewer Line Is Not

Contemplated

In your second scenario, vacant lots front a street where there

is no need to lay a sewer line to serve properties with failing septic

systems. We assume that the collection system could be efficiently

designed to bypass the vacant street. The exclusion of those

properties would thus not render the design of the collection system

infeasible from either a financial or engineering perspective. You

asked whether the sanitary commission could refrain from running

a sewer line down that street. 

The answer to your question depends on how the sanitary

commission defines the service area. Given the minimal statutory

criteria for defining service areas, there is no prohibition on defining

a service area to exclude an isolated area within its boundaries.

Although the affected property owners could petition for the

extension of the service area to include their properties, see EN

§9-649, in our view, the sanitary commission could reasonably

exclude from the service area those streets where there is no

immediate need. 

C. Service Through Alternative Technologies

In your third scenario, vacant lots are interspersed with

occupied lots along a road in which the sewer line will be laid. The

vacant lots are unbuildable under current septic system regulations,

but might be developed without sewerage service if the lots were

combined or if alternative technologies were used. You ask whether

these lots may be excluded from service. 

Your question appears to assume that a sanitary commission

could deny sewerage service to vacant lots, while servicing

neighboring developed properties if individual septic systems could

be used on the vacant lots. However, State law contemplates that,

when a sanitary commission completes construction of a public

sewerage system, abutting properties in the service area will rely on

that system in lieu of individual septic systems. EN §9-661(c); see

also COMAR 26.03.01.05. This assumes, of course, that other

factors do not preclude connection. 

Thus, consistent with our answer to your first question, the

County would be required to provide a connector for a vacant lot

within a service area, even if an alternative technology were

available or a combination of that lot with another would make an
Gen. 60] 71

 Under the Department of Environment’s regulations,

13

authorization for individual septic systems is based on the property’s

status under the County’s water and sewer plan. Therefore, authorization

for this construction based on unavailability of access to the public

sewerage system would need to be reflected in the plan. Of course, the

plan would be subject to the Department’s approval. EN §9-507.

The General Assembly has established a grant program under 14 

which counties may qualify for funding for innovative and alternative

septic systems for certain properties. See EN §9-1401 et seq. However,

this program has not been funded during the past several years.

individual septic system technically feasible, and the property owner

would be expected to connect to the system. However, if service

were unavailable through the public sewerage system, an individual

septic system might be constructed by combining lots or alternative 13

technology for sewage disposal might be employed, either as an

interim or long-term alternative, in a manner permissible under the

Department of Environment’s regulations. See COMAR 26.03.01.05

and 26.04.02.06.14

D. Agricultural and Undeveloped Areas Outside Service Area

Your final scenario concerns farm and woodland properties

that front sewer lines necessary to transport sewerage from a

designated service area to a treatment plant. In our view,

connections do not have to be provided to these properties if they are

outside the designated service area. Read in isolation, EN

§9-661(a)(1) might be interpreted to require a connector for any

property abutting any sewer line. However, a principal tenet of

statutory construction is that, when part of a general statutory

scheme, the sections of a statute must be read together to ascertain

the true intention of the Legislature. Eng’g Mgmt. Serv. v. Maryland

State Highway Admin., 375 Md. 211, 224-25, 825 A.2d 966 (2003).

A sanitary commission’s discretion to define service areas would be

severely undermined if it were required to provide sewerage service

to every intermediate property between a treatment facility and a

defined service area. Thus, in our opinion, the obligation under EN

§9-661(a)(1) to serve abutting properties does not extend to

interceptor lines outside a service area. Because the properties you

describe would be outside the defined service area, sewerage

connections would not have to be provided.
72 [90 Op. Att’y

V

Conclusion 

It is our opinion that: 

1. The County will be required to provide a connector for

each vacant lot within a service area that is interspersed among

developed lots along a right-of-way in which a sewer line is laid.

Nonetheless, sewerage service may not necessarily be available for

every such lot. For example, the County might impose a moratorium

or other restrictions on service for new development because of

utility-related reasons such as insufficient treatment plant capacity

or the Secretary of the Environment might impose restrictions on

new connections for the protection of waters of the State. Absent

such restrictions, however, the owner of the vacant lot would be

eligible for sewerage service.

2. The County is not necessarily obligated to provide service

to a street with vacant lots. Under State law, a sanitary commission

may determine the extent of sewerage services by defining its

service area. If there is no current need for a sewer line along a

street and it would be feasible to design a system without laying a

line along that street, the street could be excluded from the defined

service area. 

3. Consistent with our answer to the first question, the

County would be required to provide a connector for each vacant lot

within a defined service area, even if an alternative sewage disposal

technology were available or a combination of that lot with another

would make a septic system technically feasible. Under State law,

a lot owner may not use a traditional septic system or an alternative

technology for sewage service within a sanitary district if a public

sewerage system is available. Thus, if vacant lots interspersed

among developed lots are within the service area, neither traditional

septic systems nor alternative technologies may be used. On the

other hand, if public sewerage service is unavailable due to other

factors, the lot owner may be able to combine lots in a manner that

would allow construction of an individual septic system or employ

alternative technology for sewage disposal.

4. A sanitary commission is not required to provide

sewerage service outside defined service areas. The placement of

an interceptor line necessary to connect a service area to a treatment

facility does not make properties outside the service area that abut
Gen. 60] 73

that line eligible for sewerage service. Thus, the County would not

be required to provide service to the woodlands and farms

mentioned in your question. 

J. Joseph Curran, Jr.

Attorney General

William R. Varga

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice