Lawyers for the county government worry that a new charter amendment that gives citizens a veto over zoning decisions could be unconstitutional.
That amendment, known as Question B and approved by 61 percent of the voters in last month's election, is likely to be the first order of business for the new County Council, which will be sworn in tonight at a ceremony at Glenelg High School.
The problem, attorneys say, is that voters can hold a referendum when they oppose certain zoning changes but there's no appeal for the people whose property is affected when that happens.
"It's like saying, 'Let's have a human rights case . . . that can be overturned by popular vote,' " said Paul Johnson, deputy county solicitor. "It violates due process."
But Question B supporter Peter J. Oswald insists that property owners still can take the county to court if there is a legal problem with a zoning change.
County attorneys and planners worry that the charter amendment sanctions an unconstitutional violation of property rights. They cite court decisions holding that land-use decisions can infringe on those rights.
Question B may do that by removing the current appeals process for some county zoning decisions, said Mr. Johnson, who last week was drafting legislation that would make county law conform to the charter change.
Those legal uncertainties will end up on the new council's doorstep. Its members, who also sit as the Zoning Board, will have to decide what zoning changes are subject to referendum and set up an entirely new process for some zoning decisions.
And they will have to do it soon, since the charter amendment is effective 30 days after the Nov. 8 election. Zoning cases could be left hanging if the council fails to pass legislation putting the charter amendment into effect.
"I'm not sure that anyone really understands the legal problems that might come along with this," said County Councilman Charles C. Feaga, a 5th District Republican, who is expected to be elected chairman at the council's first legislative session.
Worries center on wording in the charter amendment requiring certain zoning changes to be done through a council bill, rather ++ than by a simple vote of the Zoning Board.
Although the five people who make up the County Council also sit as the Zoning Board, their decisions are much different, in a legal sense.
Zoning Board rulings are similar to those of a judge -- they must be accompanied by supporting evidence and can be appealed easily to the state and federal court systems.
Council legislation, by contrast, needs no supporting evidence. It can be challenged in court under much more limited circumstances, such as a conflict with the U.S. Constitution or the council's own procedures.
Under the new charter amendment, the council would have to pass legislation if it wanted to make sweeping changes to the county's overall zoning framework. Those bills could be petitioned to referendum or vetoed by the county executive.
But county planners warn that the same process also applies to some individual property owners seeking zoning changes for rural businesses, small shopping areas, trash and recycling facilities, and "mixed-use" areas creating planned communities similar to Columbia.
That means that a frustrated property owner would have no way to challenge a council zoning decision or the outcome of a referendum, Mr. Johnson said.
Mr. Oswald, however, argues that people still could fight such zoning decisions in court. "If there is an error, and it's in violation of the zoning regulations, then there would be a legal appeal right," Mr. Oswald said.
Legislation putting Question B into effect could be introduced as early as tomorrow night's council session and voted on by Jan. 2. If is not introduced tomorrow, it would be introduced Jan. 2, Mr. Johnson said.