LOCAL GOVERNMENT LAW OUTLINE—MOGK—FALL 2007
Theoretical Perspectives on the Function of Local Govt.2
Forms of Local Government. 2
Federal Perspectives on Local Government. 3
10th Amendment and the Commerce Clause. 3
The Spending Power. 4
Defining the Community.. 4
The Variety of Communities. 4
Restricting Activities in the Community. 4
Restricting Membership in the Community. 5
Community Effects on Non-members. 5
Defining “Community” in Practice: Municipal Boundaries and Deciding Who Decides. 5
Constitutional Constraints on Boundary Making. 5
Standards for Incorporation and the Judicial Role. 6
Annexation and Boundary Adjustments. 7
The Communities Relationship with the State.. 7
The State’s Plenary Power and the Inherent Right to Self-Government. 7
Constitutional Restrictions on the Legislatures Plenary Power: Special Commission Prohibitions 8
Constitutional Restrictions on the Legislatures Plenary Power: Special Legislation Prohibitions 9
Statutory Powers-Herein of “Dillon’s Rule”. 10
The Concept of Home Rule. 10
Conflict and Pre-emption.. 11
The Communities Relationship with its Residents- The selection of Services 12
Redistribution of Wealth.. 12
The Communities Relationship with It’s Residents- Paying for the Services Provided.. 12
Constitutional Restrictions. 12
Due Process. 12
Public Purpose. 13
Restrictions on Expenditures. 14
State Imposed Mandates. 15
Sources of Revenue. 15
Ad Valorem Property Taxes. 15
Special Assessments. 16
User Fees and Service Charges. 17
Debt Limitations and Their Avoidance. 18
The Communities Relationship with Its Residents- Municipal Liabilities 21
Municipal Tort Liability under State Law.. 21
The Communities Relationship with it’s Residents- Citizen Participation 22
The Bases for Citizen Participation in Government. 22
Initiative and Referendum.. 22
The Communities Relationship with It’s Neighbors. 24
Interlocal Cooperation.. 24
Interlocal Conflict. 25
The Communities Relationship with Non-residents. 26
Providing Services to Nonresidents. 26
Favoring Residents in Allocation of Resources. 26
Theoretical Perspectives on the Function of Local Govt.
The big picture…
All power flows from the constitution
Some specified powers on the table went to the federal Govt., the rest were reserved for the states. At the end of the day there is no reference to municipalities.
Reserve powers went into the state constitution. The people of the states adopt the state constitution, and all powers flow through to the legislature.
Federal constitution only says that states have to adopt a republican form of govt., not necessarily constitutional.
The state legislature creates local units of govt. They can do anything they want unless there is a federal, or a state constitutional constraint.
If a local statute is passed…
Must look all the way up to the constitutional level to see if it is prohibited.
If a local person objects…
Has the local unit properly acted in pursuing this ordinance? Has it followed the necessary procedures? Is there substantive and procedural adequacy?
Does the property owner have any rights to be protected against the local municipalities actions? May be yes. Federal, State Agency, Etc.
At the federal level are bound by the bill of rights. Originally the BOR only applied to the federal govt’s actions, until 1868. Courts interpreted 14th amend to apply the BOR to the states.
Local governments are set up to provide services and to govern the local people. Local units of government have no inherent powers of their own as today’s case law stands. They exercise power that is delegated to them by the state.
Example for having two standards. In order for the local government to pass a statute must meet the highest bar.
City of Wayne v. Poletown. City of Det. created economic development corporation created by the state legislature. Mayor Young was facing a loss of people and jobs from Detroit. Mayor offered to provide incentives for car companies to develop factories within the city. GM needed 400 acres, and found them, but there were still homes located on them. City decided to take the homes, court said the taking was fine. This could be a taking under the 5th amendment, but it says that taking can be used to “further public purpose”. Case was argued under the MI constitution which has the same language as the federal constitution.
County of Wayne v. Haftcock. 2004 case which allowed State S.Ct to revisit Poletown. Wanted to develop industrial park next to the airport. S.Ct. overruled poletown. No transferring property between private owners for purposes of economic development. Year later the federal govt. decided otherwise, but the federal decision does not overrule Haftcock. Both sets need to be observed at the same time.
Forms of Local Government
There are more than 87 thousand subdivisions within the US. Tip O’Neill stated “all government is local” because that is where we are likely to have hands on interaction with the government.
Reasons to live in an area
Proximity to work
People vote with their feet. P29
Tiebout’s five principles. Consumer voter principles. People move to where they are comfortable.
o Competition among jurisdictions will force local governments to be efficient providers of public goods.
Different Types of Local Units p.46
o Administrative arms of the state, and typically provide general government services such as roads, courts, jails, law enforcement, land records, vital statistics, welfare, and public health.
o State constitution can give coun
ining the Community
The Variety of Communities
Separate rules and criterion that must be met to authorize and recognize a local governmental unit.
You could be in an already incorporated city, but believe that you are not receiving adequate services from the government. The people will hire outside service to take care of their subdivision, etc.
· Will contract out snowplowing and security to private entities.
They will do this by setting up a municipal govt. By doing this they will have the power to tax. If they do not pay the taxes a lien will be placed on the property, and the municipality will foreclose on the house.
Restricting Activities in the Community
You have the power to regulate local residents and strangers, individuals and businesses.
Schad v. Borough of Mount Ephraim(SCT)(84)
The local unit of government passed a zoning plan. There is a zoning enabling act that allows a municipality to zone. The Act is separate from the charter for the municipality (in MI there are 3 types). Zoning acts separate areas into commercial, industrial, and residential. Within each there are a range of densities that are permitted. Anyone who wishes to use land must comply with the zoning ordinance. A use that exists before, and is non-conforming may or may not be able to continue. Bookstore includes nude dancing. New ordinance prohibits live entertainment as a type of commercial use. Lower court believed that the ordinance violated the 1st and 14th amendments.
The ordinance must further the public health safety morals and general welfare, and cannot be applied in a discriminatory manner.
Does it further a governmental interest to sustain the police power recognized.
There is either…
1. No rational basis, or
2. Reasons for police power have not been met.
We have learned that the ordinances are attempting to control the conduct of the business, and of the patrons of the business. They needed the state power to get this done.
Outcome: This was struck down
o Some ordinances may be religiously based, but if there is a violation of the establishment clause (government cannot contribute to establishing a religion) they will be struck down.