Entitlement pathway election — Maryland

Five zoning regimes, sorted by jurisdiction type

Maryland's default, general zoning enabling law lives in the Land Use Article, Division I, Title 4 (§§4-101 through 4-406) of the Annotated Code of Maryland — the direct successor to former Article 66B, repealed and recodified into the new Land Use Article by Chapter 426 (House Bill 1290) of the Laws of 2012, effective October 1, 2012. Title 4 covers a legislative body's power to regulate height, lot coverage, setbacks, parking, density, and use (§4-102), the conditions it may attach when zoning or rezoning land (§4-103), and the judicial review process through the circuit court and Court of Special Appeals (§§4-401–4-406). But Title 4, and Division I generally, do not apply everywhere — the Land Use Article says so directly: "Except as provided in this section, this division does not apply to charter counties" (§1-401(a)).

The practical consequence for an entitlement-pathway election: a screening or workflow tool cannot apply one uniform "Maryland rezoning process." It has to branch on jurisdiction type first, because the branch determines who hears the rezoning application (a county council sitting as a legislative body under Title 4; a charter county council acting under its own Express-Powers-Act zoning ordinance; Baltimore City's own process under Division I Title 10; or the district council for the Maryland-Washington Regional District under Division II), who hears an appeal (a local board of appeals under Local Government Article §10-305 for charter/code counties, versus whatever body Title 4's Division I jurisdictions have established under their own local law), and which court ultimately reviews it. Even Montgomery and Prince George's counties — both of which are, in fact, charter counties — do not use the Express Powers Act route for land use at all; Maryland courts have held that Division II governs the regional district instead, precisely because that district predates and was carved out from the general charter-county scheme (County Council of Prince George's County v. Zimmer Development Co., 444 Md. 490 (2015); Chevy Chase View v. Rothman, 323 Md. 674 (1991)).

Maryland's own zoning-in-place standard is softer than it looks — until Rental Housing Works makes it harder

As established in Phase 2, the QAP's general Threshold Criteria do not require zoning already in place at application for a standard competitive LIHTC deal: Guide §3.11.3 accepts a documented plan and timeline for a pending zoning change, variance, or exception instead. That is a genuinely different posture from a QAP that gates federal 9 percent or competitive-credit eligibility on zoning already being final — Maryland's default posture treats the entitlement pathway itself as something an applicant can still be actively pursuing at application, provided the pathway and its timeline are documented and consistent with the project's own Anticipated Development Schedule.

The one place this reverses is the Rental Housing Works (RHW) program, layered on top of MBP and 4 percent LIHTC: its additional threshold criteria require that "required zoning for use and density of development must be in place at the time of application and properly documented," accepting a local zoning-office letter or an approved Planned Unit Development resolution (or a local jurisdiction's equivalent) as proof — though development or site-plan approval, and conditional-use or special-exception approval, are explicitly not required at application for RHW, only before closing. An applicant electing to layer RHW funds onto a Multifamily Bond Program/4 percent deal is, in effect, electing the harder zoning standard as a condition of that specific funding source — a choice worth making deliberately rather than discovering at underwriting.

Priority Funding Areas as a land-use act, not a credit election

Phase 1 covers the Priority Funding Area (PFA) requirement as a QAP threshold gate for new construction. The entitlement-pathway angle is different: PFA status is not something a LIHTC applicant negotiates or applies for at all. It is set by the Priority Funding Areas Act, part of Maryland's 1997 Smart Growth legislative package and now codified at Md. Code Ann., State Finance and Procurement Article §§5-7B-01 et seq., which restricts State infrastructure funding — roads, water, sewer — to areas that qualify as PFAs, rather than restricting private development directly. A site's PFA status is therefore a function of two things only: whether it falls within one of the statute's own automatic categories (incorporated municipalities, the areas inside the Baltimore and Washington beltways, State-designated Sustainable Communities, enterprise zones, or certified heritage areas within a locally designated growth area), or whether the county government has separately designated the surrounding area as a PFA in its own comprehensive plan.

That second path — a county comprehensive-plan designation — is the only real "pathway election" available for a site currently outside a PFA, and it is a general land-use planning act, governed by whichever of the five zoning/planning regimes above applies to that county, not a LIHTC-specific filing. A site in a commission county runs that designation request through the county's Division I planning process; a site in a charter county runs it through that county's own Express-Powers-Act planning apparatus; and so on. Because the same five-way branch from the previous section controls how (and how quickly) a county can even consider redesignating an area, there is no single statewide timeline to plan against — a PFA gap has to be evaluated jurisdiction by jurisdiction, the same as a rezoning would be.

TEFRA hearings: CDA is the bond issuer, and the hearing is a distinct legal event from the QAP's own local notice

For any deal financed through Maryland's Multifamily Bond Program (MBP), CDA — a unit of DHCD's Division of Development Finance — is itself the issuer of the tax-exempt private activity bonds, and federal tax law requires a public hearing and approval by an elected official before that kind of bond can be issued tax-exempt. The requirement is commonly still called by its 1982 origin — the Tax Equity and Fiscal Responsibility Act, or TEFRA — though it is currently codified at 26 U.S.C. §147(f). CDA runs these hearings routinely and publishes the notices directly: a public hearing notice dated for September 14, 2026, for example, bundled eighteen separate named projects into a single phone-only hearing running from 11:30 a.m. to 12:30 p.m., with written comments or speaker requests due by the close of business the day before (September 13) and oral presentations capped at five minutes per speaker.

This is a genuinely separate legal event from the Guide's own 45-day local-government notice-and-comment requirement covered in Phase 2, and the two should not be conflated when building a project timeline. The Section 2.2 notice runs on every LIHTC/MBP/RHFP/RHW application regardless of financing structure, is addressed to the specific political subdivision's chief elected official and legislative-body head, and gives that subdivision 45 calendar days to comment. The TEFRA hearing runs only on deals actually financed with CDA-issued tax-exempt bonds, is a public hearing open to any commenter (not addressed to a specific local official), is required by federal tax law rather than DHCD's own Guide, and — as CDA's own practice shows — can bundle many unrelated projects into a single hearing date rather than running project-by-project. A bond-financed deal is subject to both requirements independently, on their own separate clocks.

One further nuance carries over from Phase 2's Multifamily Bond Program discussion: MBP applications, though non-competitive, must still score at least 92 points on the same Competitive Scoring Criteria rubric used in the competitive round (Guide §6.2) — meaning the entitlement and site-quality facts documented for scoring purposes (Community Context category, TOD points, Priority Funding Area status) still matter for a bond deal even though it never competes head-to-head against another application for the same dollars.

What this research did not settle

Two things are worth flagging explicitly rather than resolving by inference. First, this research relied on the Maryland General Assembly's Department of Legislative Services fact sheet (dated January 2025) for the current list of which counties fall into which of the five zoning regimes; a county's home-rule status can in principle change by referendum, and while no such change was identified in this pass, the list should be treated as current as of that January 2025 source rather than independently re-verified against a 2026 session update. Second, the text of the Land Use Article obtained and reviewed in this research (via the Maryland General Assembly's own statute archive) was the 2020-session compilation; §1-401(a) and the Title 4 structure it describes were confirmed directly in that text, and the Department of Legislative Services fact sheet independently corroborates the same structure as of January 2025, but a handful of individual Title 4 or Title 1 section numbers could have shifted in intervening legislative sessions and should be re-confirmed against the current-session Maryland Code before being relied on for a specific statutory citation in a legal document.

Neither gap changes the overall structure described above — the five-way jurisdictional branch, the PFA statute's basic mechanics, and CDA's role as bond issuer and TEFRA hearing sponsor are all independently corroborated across multiple primary sources — but a citation to a specific Land Use Article section number for a specific county's current zoning process should be checked against the live Maryland Code at the time of use.