A question of nullification

Recently secession has been all the rage in the news, as all 50 states have at least began the process of petitioning on the White House website to have them address the matter. Texas is leading the way with over 100,000 signatures.

But perhaps a more realistic (and less bloody, given the last secession led to a war between the states) alternative is the concept of nullification, where states refuse to follow laws they consider unconstitutional. The principle is an extension of the Tenth Amendment, which grants “(t)he powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”

Obviously this idea is most popularized by the lack of willingness of some states to comport with Obamacare, but the question can be asked: do counties as part of states have those same nullification rights? Thanks to a strong TEA Party and pro-liberty movement, Cecil County is the Texas of Maryland, and one group is calling on the county to toss down the gauntlet on the so-called “septic bill” SB236.

The county’s Campaign for Liberty group puts it thus, as part of an “open letter” to the Cecil County Commissioners:

As we fight in Maryland to oppose S.B. 236 and O’Malley’s Plan Maryland we can learn a lesson from the fight over Obamacare.

Much like Obamacare, S.B. 236 was a radical leftist law that was rammed through the legislature.

After Obamacare passage, many conservatives felt like the battle was over, however, a number of states are now blocking implementation and using nullification to stop Obamacare in its tracks.

Our counties in Maryland need to take a page out of the states’ playbook by blocking implementation of S.B. 236.

S.B. 236 is an equivalent to Obamacare in Maryland.  If S.B. 236 is allowed to stay on the books it will go down as the greatest taking of private property rights in Maryland history.

Cecil County Campaign for Liberty is urging you vote against submitting Tier Map 10 (or any other Tier Map for that matter) to the State of Maryland as required by S.B. 236.

County Commissioner Robert Hodge spoke at a recent Cecil County C4L meeting and asked us to support the submission of Tier Map 10.

He explained that Map 10 included no private property in the most restrictive Tier 4 designation.

While we applaud every effort to protect private property rights, after careful consideration, we believe that objective is best served by non-compliance.

Meanwhile, the concept of selling development rights is also being challenged by a Howard County farmer who wants out of his contract as well.

For many years, since the nation’s founding as a matter of fact, the concept of taxation of private property had been the main flaw in the age-old doctrine that a man’s home is his castle – after all, your property isn’t truly yours when you pay an annual rent to the government in the form of a property tax. On the flip side, zoning codes came into being and more and more restrictions were placed on what could be done with one’s property. Most of these were modest changes which made some logical sense, but in the last couple decades we’ve seen more of a naked power grab by government at all levels. The transferable development rights under debate in Howard County were one thing, but the idea that a government edict can render your property all but worthless by curtailing its development simply because no wastewater system is nearby smacks of overly dictatorial control. But that’s the aim behind Senate Bill 236: if you’re in a Tier 4 area, it will be difficult (if not impossible) to develop your land as you see fit.

Maryland has always been a trendsetter in the area of “preserving” land through several approaches: buying development rights, placing restrictive land-use policies in ever-expanding coastal areas via stormwater regulations, or simply purchasing land outright through Program Open Space. Obviously that’s a last resort because the state won’t pay property taxes on land it owns, but they collect tax revenue on most privately-owned land whether it can be developed or not.

To hear them tell it, the key reason Maryland is so restrictive is the fact Chesapeake Bay divides the state, and I’ve joked before that if you wrote a bill to legalize murder but named it the “Chesapeake Bay Murder Legalization Act of 2012” you just might get it to pass. In all states, “it’s for the children” works as a political slogan but you can add “it’s for the Bay” as a Maryland alternative. Put the wrong people in charge of government and this sloganeering bastardizing the name of a perfectly fine estuary becomes an almost inexorable power grab.

Rural development is the scapegoat for the water quality trouble in Chesapeake Bay, with the septic system considered to be public enemy number one to the Annapolis environmentalists. (Because we all know those urban sewage treatment plants always work perfectly and never, ever leak.) That’s why SB236 passed with almost unanimous support from urban areas and opposition from the parts of Maryland far away from the I-95 corridor.

Yet the environmentalists who continually blame farmers and those who wish to live far away from the city for the Bay’s filthiness seem to forget that Chesapeake Bay’s water doesn’t just magically appear in Maryland. There is a river which feeds the bay, and it’s worth noting that our allies in the Maryland Rural Counties Coalition aren’t forgetting that fact. A six-page letter from the legal firm Funk & Bolton outlines some of the study behind these assertions, contending that spending billions of dollars local governments don’t have to address only a small portion of the problem is a fool’s errand at best.

So what happens if Cecil County doesn’t send in a map for approval? The law as written basically tells them they can’t approve anything beyond a “minor” subdivision unless it is on a public sewer system. Of course, subdividing the county into tiers would place large areas off limits anyhow so in all honesty there’s not a big difference either way.

Unfortunately, it’s not likely we’ll see this law repealed anytime soon and no court in Maryland has the balls to tell Martin O’Malley and his environmentalist wacko allies to go pound sand. The only way that might happen is for an aggrieved party, such as a farmer stuck in a Tier 4 area who wants to develop his land, to take the state to court. But that farmer would need some deep pockets to fight the state and if he can’t do as he wishes with his property it’s not likely the financial wherewithal is there to fight.

As Maryland counties go, Cecil County is perhaps the closest match to Wicomico County. Yet it strikes me as odd that they have a TEA Party movement which is much farther along than ours, even though our County Council is a supermajority Republican one like theirs is. The key difference is that they just elected a Republican county executive, who will begin her new job next year. We’ll see how that affects our friends up the Shore, but I suspect they’ll be better positioned to take advantage if our state swings to the GOP in two years.

5 thoughts on “A question of nullification”

  1. I disagree with C4L’s position that no map should be sent to the state, because that would automatically cause the most restrictive scenario to go into effect, stripping many landowners of their property rights. Comparing the state/local government relationship to the federal/state relationship is comparing apples to oranges. The Constitutional limitations on the federal government don’t apply to the state government. A failure to submit a map is not fighting SB 236, but amounts to the locally elected officials waving the white flag and ceding the right sof the citizens to the state. Ironically, the cry of “to hell with the maps” initially came from a commissioner who had up until a few days before that statement, supported a very restrictive map (more restrictive than the local planning commission devised) and refused to consider eliminating land from the tier 4 designation. This same commissioner has historically thrown his lot in with the anti-growth environmental crowd, so I am skeptical about the motives of the no map proposal. Failure to submit a map would suit that crowd just fine. I support fighting SB 236 by any legal means we can possibly use, and by submitting a map that does not change current local zoning in any way and which does not rob landowners of their property rights. A call for no map submission is not grounded in reality and does nothing to further the cause of liberty. Currently in Cecil County we have 5 Republican commissioners, 2 of whom support the restrictive tier map they originally proposed which well over 200 people testified against, one who originally supported that same map but who is now calling for no map to be submitted, and two who have supported sending a map to the state which would not change current zoning on privately owned property.

  2. To be clear , the first commenter -Jackie Gregory – is a member of the Cecil County Patriots and they have taken a position that submitting the least restrictive map is the best solution. I am a member of Cecil County Campaign for Liberty and our position is one of non-compliance as the article noted. Many groups fall under the term “Tea Party” and I wanted to clear up the confusion about which group in Cecil is calling for nullification.

  3. Before Ms. Gregory before you rush off to surrender to the Statists in both parties you should read the Maryland Declaration of Rights. SB 236 is a violation of the rights of Marylanders. Instead of throwing in with the Statists the new Democrat CE of Cecil should stand up along with the commissioners and join other countiesand draw a line in the sand and say NO! Develop as you wish anyway. If a dozen of the counties stand together and say now the state could not stop them. Read the Maryland Declaration of Rights and stand on principle. Resist.

  4. IM Spartacus: If there is indeed a violation of the Maryland Declaration of Rights, then a lawsuit should be filed. If/when a lawsuit is filed, a stay can be issued on the law until the case is resolved. The Clean Chesapeake Coalition was established for that purpose. Why hasn’t a lawsuit been filed with so many counties opposing the law? Could it be that the way the law was written, toothless with the local gov’t left to draw up the maps and the state left with no recourse in changing the maps, that a lawsuit would be difficult to win? I support any and all legal action to overturn SB 236, but the fact that there has been none and doesn’t seem to be anyone willing to move forward on that front in the near future leads me to believe that the lawyers in the CCC feel that the current law does not violate the MD Constitution, since ultimately the power over the maps resides locally. Please direct me to the county that has said “no” to submitting a map and is planning to develop anyway. That county doesn’t exist. All counties, including Carroll have expressed to the state their intention of submitting a map, and have in the meantime, agreed to downzone their citizens to tier 4 a required by law. Please see http://ccgovernment.carr.org/ccg/plan/sb236/default.asp. This is the action you want Cecil to take? No thanks— I prefer to actually stand against the statists as we have rather than cower in submission. In Cecil County, some Republican commissioners have continued to support a map which places a lot of private property in tier 4, even after there was overwhelming opposition by citizens. The map we actually submitted was similar to the one proposed by Richard Rothschild to the his County Board last year, and the patriots supported the map Cecil eventually submitted after consulting with him. The map submitted does not take a single property right away from a landowner. By the way, the our county executive is not a Democrat (seems you have been given some misinformation). She actually is unaffiliated; her decision to unaffiliate protected the citizens from having an anti-growth advocate appointed to replace her as would have happened under our current Republican Central Committee. By the way, our county executive led the effort to notify landowners in Cecil of the map proposed by 3 commissioners that put significant land masses in tier 4; 3 of our Republican officials initially opposed the notification. Volunteers from the Cecil County Patriots worked with the Cecil Business Leaders to put together a letter and mailed it to landowners notifying them how the map and the law in general would affect their property rights. It is interesting to note that when the hearing to overturn SB 236 occurred in Annapolis, Cecil was the only county noted to be out of compliance, thumbing its nose at the state. The state in fact remarked that it did not have any problems with any other counties. What does that tell you?
    Nullification by states of federal laws is one thing, but please tell me when/where local government has ever nullified a state law. The 10th amendment grants broad powers to the states, limited only by the bill of rights and state constitution, which leads back to the initial discussion of why a lawsuit has not been filed if SB 236 if indeed violates ether of these.

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