Future Modes
Because the future is closer every day Volume 4, Number #2, October 30, 2014
Whose home rule is it, anyway? By Jo Laurie Penrose, AICP Home rule is a simple concept: the local jurisdiction makes its own policies and regulations on local issues and needs. It’s the elected officials who make those decisions. In many states, Dillon’s rule has been superseded by home rule charters. This allows governments to make their own rules and do their own planning, and the state legislative body makes laws that govern the whole state. Except, the Great Recession of the mid-2000s and into the teens saw home rule shoved to one side by legislative efforts to advocate for and create economic development. This post will look at the activities in the Florida and North Carolina legislatures that attempt to circumvent home rule. First off, what is Dillon’s rule? It is a legal standard sometimes used by courts when reviewing the legality of specific local government actions. The “rule” refers to a standard for judicial interpretation – a guide for judges suggesting that municipal powers should be narrowly construed. Home rule allows local governments to make and apply their own ordinances governing how they operate. Florida is a home rule state. In Florida, Home Rule language was proposed in the 1968 Constitutional revision, and was adopted by the people. After several legal challenges, the Legislature adopted the Home Rule Powers Act in 1973, which ended challenges related to city and county powers. The Florida Constitution states in Article VIII, Section 2(b) for municipalities: “Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render
municipal services, and may exercise power for municipal purposes except as otherwise provided by law.” North Carolina is not a home rule state, however many jurisdictions have adopted their own ordinances to implement local policies and processes. For example, North Carolina does not have a state statute for comprehensive planning. Most large jurisdictions use ordinance to create their comprehensive plans, without legislative dictate. A good example of legislative disdain for local planning is the efforts to kill transportation concurrency in Florida. This concept was one of the underpinnings of the state’s growth management law passed in 1985. Local governments made their own decisions on how to implement it. Within a few years, it became clear that developers were going to pay a lot in impact fees or concurrency fees to get their projects approved. “We can’t have this…that’s diminishing economic development!” Economic development for whom? Special interest groups seem to compete to seize a piece of government only to benefit themselves. Transportation concurrency wasn’t meant to make developers move to Georgia or make people lose their jobs. According to numerous analyses, the projects have usually been built anyway, only away from an urban area. Since 2000, when multimodal districts were added to the growth management law, the Florida legislature has edged closer to eliminating concurrency. The most recent example of a proposed law that could have circumvented home rule was in the 2014 Florida legislative session (need details here). HB 703…This regulation wasn’t in the final engrossed bill, but it’s a good
example of how home rule may come under attach when economics are at stake. North Carolina, where I worked for several years gives local jurisdictions broad construction powers. Most jurisdictions manage their own issues and planning through policies and implementing ordinances. The North Carolina legislature has a long session and a short session. In the 2013-2014 sessions, several bills were introduced that would effectively diminish numerous local development regulations. One bill would force local jurisdictions to rescind regulations that cover development of vacant land. In this case, the bill would allow a developer to clear cut every single acre of a vacant parcel in order to develop it. The state legislature has gone even further with SB 734, a bill that would prevent cities from using color code schemes for housing. Home rule vs. legislative power has a lot of facets: an allergic reaction to local planning, distrust of citizenry, who gets the scarce resources, and even political ideology: “The {North Carolina} legislature has the power to dictate to local governments, but is that right? Who is more accountable to the people of Durham, their own city council representatives or a senator from Monroe? And wasn't it once a tenet of conservative ideology that government closest to the people is best?� Quote from Greensboro (NC) Record editorial, May 2014 The fear of comprehensive planning at the local level in Florida goes back more than 40 years, to the set-up of regional planning councils in the early 1970s. Local planning allows many different approaches to local issues. Not everyone advocates or trusts local planning.
I asked Charles Pattison, policy director for 1000 Friends of Florida, about a standardized approach to what would seem to be local issues controlled by home rule: “The legislature began arguing that we needed common standards statewide, and typically these were lower than what the local governments required. They also used the argument that they wanted to get rid of duplicative rules, especially if state and/or federal permits were involved. The reality seems to be that there is less regard for planning, local and otherwise, in favor of permitting. We tell legislators all the time that these provisions do not harm the economy. In fact, we say they protect the quality of life and environment which are the foundation for Florida’s economy.” Home rule covers more than planning or creating ordinances such as land development codes. Zoning classifications can be used to separate uses or eliminate uses without mentioning them in a code. City and county governments must make development decisions based on public interest, not special interests. That mean planning at the local level, by professionals and elected officials who understand their community. Resources: Is Home Rule The Answer: Clarifying the Influence of Dillon’s Rule on Growth Management, Brookings Institute, 2003, http://www.brookings.edu/~/media/research/files/reports/2003/ 1/01metropolitanpolicy%20richardson/dillonsrule http://www.newsday.com/opinion/oped/the-home-rule-fightagainst-fracking-bruce-ferguson-1.5215762