Local Government Law
I. What is a Community
1. Theoretical Perspectives on the Functions of Government
A. Perspectives from Politics
i. Mill: The principal business of the central authority should be to give instruction, and the local government should apply it. Power may be localized, but knowledge, to be useful, must be centralized
ii. Tocqueville:
a. The central government has to depend on agents who cannot be given direction every minute, less we will have “administrative tyranny”
b. Local govts are what keeps the oppressive laws from being enforced, even if they are on the books
iii. Arendt:
a. Corruption and perversion are more pernicious, and at the same time more likely to occur, in an egalitarian republic that in any other form of govt
b. According to Jefferson, it is the very principle of republican govt to demand the subdivision of counties into wards, namely the creation of small republics through which every man in the state can become an acting member of
iv. Madison: Eliminating faction is only possible by giving everyone the sam opinions or eliminating liberty
B. Perspectives from Economics
i. Tiebout:
a. Vote with your feet. Consumer voters are fully mobile and will move to the community that best fits its needs
b. Individual will gravitate towards localities that offer the preferred goods and services at a tax price residents are willing to pay
ii. Logan & Moltoch:
a. Urban area serve as both “exchange values” and “use values.”
I) Exchange values: the value that urban land commands in the mktplace
II) Use values: involves the use to which the current occupier puts the land
b. Politics of place is about whose interests the govt will serve
iii. Local govt as provider—collective action
C. Forms and structures of local government
i. County govts: The main administrative arm of the state. Generally provide services such as police, roads, education, etc. Not in CT, RI, and DC. Power varies from state to state.
ii. Municipal govts: political subdivisions within which a municipal corp. has been established to provide general local govt for a specific population; includes all govt units designated as cities, towns, boroughs, and villages. Derives its power form the legislature
iii. Towns or Townships: Typ. serve sparsely populated areas; only in 20 NE and MW states
iv. School districts (and other special districts): Can count a local govt if the meet three requirements:
a. Exist as an organized entity
b. Governmental character
c. Substantial (fiscal and administrative) authority
v. Quasi Municipal Corporation: Public agency created by legislature to aid the state in some public work for the general welfare, other than to perform as another community
vi. Special Commission: Some body or group separate and distinct from municipal government. Not offensive to the constitution only when delegated power which doesn’t intrude into areas of purely municipal concern. See Specht, 3.B.i.a, infra.
2. Defining the Community
A. The variety of communities
i. Restricting activities in the community
a. Schad: Zoning law that prohibited live entertainment in commercial zone violates 1A & 14A.
I) The power of local govt to zone and control land use is broad & its exercise is essential to achieve a satisfactory quality of life in any community
II) Zoning is not unchallengeable, however
1) Borough claims that ord. was to prevent parking problems, trash, and crime. However, live entertainment does not contribute to these problems any more than any other permitted use
2) This is just a case of trying to keep out “undesirable activity”
ii. Restricitng membership in the community
a. Romriell (ID): Permanent injunction against converting single family home into elderly group home in violation of restrictive covenant was valid. The court has
on to annexation disputes
b. Hunter:
I) Hunter Rule: The state has plenary power over its pol. subdivisions; even over the objections of, or when state action may injure, residents
II) There is no property right or liberty interest in living w/in a particular pol. subdivision and state can change what county/city you live in at will
c. Pima (AZ): Upheld statue allowing city to incorporate only w/ approval neighboring municipalities; Hunter Rule allows state broad pwr to manage municipalities incorporation as it pleases
d. Local Agency Formation Comm. (CA): Uphled statute that allowed only residents of proposed municipality to vote on incorporation. Applied Moorman.
e. Murphy (MO): Upheld statute that only allowed residents of annexing city to vote on proposed annexation; resident of annexed city have no constitutional right to vote in this election and state has broad power
f. Mid-County Future Alternatives Committee (OR): Upheld statute allowing a “triple majority,” where maj of local commission could approve annexation requested by more than half of landowners, owning more than half of the land value, in proposed annexed area without vote.
g. Gomillion: The state does not have the plenary power to manipulate boundaries in a conceivable way.
I) 15A forbids any law that deprives citizens the right to vote based on race and strict scrutiny will apply
II) The state is not protected from fed. judicial review, even when state power is wholly w/in state interests, if power used to circumvent a federally protected right
