Chapter I. Local Governing Power—General Aspects, Limitations, Resolution of Power Conflicts and Challenges 130 results (showing 5 best matches)
- The earliest provisions granted home rule powers to local governments with respect to “local” or “municipal” affairs. In a 19th century case involving Missouri’s home rule framework, the Supreme Court referred to St. Louis as an “imperium in imperio,” a “government within a government.” The term stuck, and the label continues to be used to describe home rule systems that authorize local control with language that grants power to legislate, for example, with respect to “all powers of local self-government,” “all laws and regulations in respect to municipal affairs,” or “local affairs and government.” In fact, by transferring control over local affairs to the home rule unit, the imperio system appears to erect a barrier against state intrusion—any power deemed exclusively local should be beyond the reach of state intrusion or interference, because the state has relinquished all power over local affairs to its home rule units.
- Because local governments have no inherent sovereign power, all local governments actions and regulatory regimes must be based on a valid transfer of power from their state. Local laws are on surest legal footing when the powers they seek to exercise are expressly authorized by state enabling statute, such as when state law authorizes municipalities to own and operate solid waste facilities. But because state delegations of power may fail to anticipate each and every possible local government response to any specific local issue, questions of enabling authority frequently arise. In the absence of explicit authorization, local government powers may be upheld pursuant to one of three modes of state delegation: implied as incident to an explicit grant of power; pursuant to broad state transfer of general regulatory powers to specific local government units, or pursuant to state grant of home rule status to the local government. Each of these sources of state power will be discussed in...
- Except for the recognition of state sovereignty and sovereign immunity and the absence of status for local governments in the federal constitutional scheme, resolution of federal power disputes with the state and with local governments involves the U.S. Constitution’s Supremacy Clause and “dormant” power to block regulatory or taxing activity that unduly burdens or discriminates against interstate commerce. In a dispute between federal and local power exercises, the local government may find its actions regulated (antitrust laws), invalidated (Commerce Clause), or preempted (air passenger enplaning taxes).
- It must be emphasized that, like the federal government, the state must be acting in an area within its competence before it can lawfully preempt local action. If the subject matter is committed by law to local autonomy (a local matter, e.g.), it is the state action which may be rendered inoperative in the particular locality. Not only is there much dispute concerning conflict and occupation of the field, there are also questions whether an ordinance which merely duplicates the state law may stand, whether an ordinance may stand until a state statute is enacted on a matter not deemed local or municipal, and whether in the converse situation the state law is operative until a local law is enacted. The jurisdictions answer these questions inconsistently.
- As a matter of basic legal principle, all local governments are creatures of their states, subject to the rules of operation established by those states. Thus, in a sense, all local governments fit the “top-down” description. At the same time, however, local governments display some degree of local representativeness or accountability; where they differ widely is in the extent of their “bottom-up” control.
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Preface 4 results
- This text will aid students who seek to learn Local Government Law. We hope that it will also assist practicing attorneys who seek an overview of all or part of the subject matter. The relationships among local governments, their citizens, their states and the federal government are so pervasive that choices of emphasis must of necessity be made in a text of this size. Because Local Government Law tends to overlap several other law school courses, the choice in this text was to address at least as many areas as could accurately convey the scope of these relationships and to treat more extensively areas, such as taxation and borrowing, that are not likely to be pursued in such detail in the core courses common to all law school curricula.
- Occasionally, throughout the text, comments and queries will attempt to provoke reader reaction (agreement or disagreement) to the status or trend of particular legal principles and of local government policies. Frequent illustrations, many of which have been drawn from actual cases, will be used to assist in understanding the text.
- The vast scope of the subject inevitably means that individual authors and editors will approach it with differing views of the most interesting and instructive theme and focus. Our choice has been the central theme of delegated power and the limitations imposed on its exercise by law and challenge, the latter because it serves significantly, as intended, to restrain the exercise of governing power. The setting is, perhaps, more practical than theoretical.
- While many cases, articles, books and casebooks were consulted in the preparation of this and preceding editions, we are especially grateful for the assistance provided by the writings of Chester Antieau, Richard Briffault, David Callies, Jefferson Fordham, Robert Freilich, Gerald Frug, M. David Gelfand, Clayton Gillette, Jerome Hellerstein, Walter Hellerstein, Harold Hovey, George Lefcoe, Michael Libonati, Daniel Mandelker, Frank Michelman, Dawn Clark Netsch, Laura Oren, Osbourne Reynolds, Peter Salsich, Terence Sandalow, Sho Sato, William Valente, Arvo Van Alstyne, Judith Wegner, and Robert Williams.
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Chapter V. Revenues 163 results (showing 5 best matches)
- The impact of federal taxing and spending on local governments’ fiscal position is stark. In 1997, local government units reported having raised a total of $887 billion in revenues. Nearly $47 billion of that amount came from the federal government, $267 billion from the states, and $41 billion from interlocal transfers, which primarily involve general purpose local government transfers to school districts. Thus, the total amounts raised directly by local governments themselves (referred to as “own source revenue”) was approximately $535 billion. Although federal aid to local governments has continued to increase in terms of absolute dollar amounts, it has steadily decreased when expressed as a percentage of total local government general revenue. In 1976, federal grants comprised nearly 10% of local government income; by 1997, that percentage had decreased to approximately 4%. According to one study, in 1960 the federal government paid for 1/2 of the total national investment in...
- There is a long history of state financial support for its political subdivisions. State transfers occur in a variety of initiatives: in direct revenue sharing programs; in state education budgets, with their frequent provision of funds for local school aid, resource equalization across the state, and money for capital construction; and in a host of appropriations for state social, health, and other services that are partially or largely provided at the local level. The history of state oversight is a mixed one, but as state transfers and local government fiscal problems have increased, state oversight of local fiscal powers, borrowing, and program implementation has grown. Thus, in emergency circumstances, under appropriate state laws, municipal fiscal administration has been taken over by state agencies, and school district fiscal and overall administrative authority has been seized by the state to avoid financial collapse or substantive program failure. Indeed, receivers have...
- The sun has set on federal revenue sharing, thus eliminating one major source of federal funds for local governments. The long shadow cast by the federal deficit, the impact of the 1986 federal tax law, especially on state and local borrowing, the number of federal and state unfunded mandates to local governments, and the challenges to use of the local property tax to fund public education, have led to efforts to increase state transfers to local governments. Basic policies are at issue as the state legislatures decide whether to respond. If direct revenue sharing is increased, will there be pressures to reallocate tax dollars to the more affluent political subdivisions? Should more oversight conditions be attached to state funding? Would it be wiser to increase local taxing authority? If so, is not such authority in competition with state revenue resources? Would state enactment of local option taxes be preferable? If local option taxes are enacted, or if new authority is granted,...
- In the context of fees, the benefit criterion is potentially enormous in its breadth. If fees may be levied to recoup the cost of a government service or to pay for the implementation of a governmental regulatory program, it is not clear that much local government activity falls beyond the reach of fees. After all, what does local government do beside provide services and regulate activity? Moreover, because the range of permissible local government regulation has increased substantially with the abolition of Dillon’s Rule and the narrow limits it imposed on local government activity, the potential scope of government fees is further increased. Though most state courts defer to local designation of benefit, some have invalidated fees on the grounds that the benefit alleged was so attenuated as to create an impermissible “tax in fee’s clothing.” On that basis, courts have invalidated user fees to finance local roads, service fees to cover the cost of criminal prosecution, and a stand...
- Proponents of balanced taxation argue that state tax systems should rely rather equally on income, ad valorem, and sales and other excise taxes because each reacts differently to economic cycles. Considering state and local taxes as a total system, one may find more balance than expected in most states. But some states do not rely on income taxes, and state governments often make little or no statewide use of the property tax as such. Local governments rarely are able to achieve the goals of balanced taxation. Many local governments are authorized to impose a number of types of taxation, but rely heavily on property taxes which, while declining somewhat as a source of local overall funds, remain by far the dominant force in local tax revenues. In declining order, local sales, gross receipts and other excise taxes and, in some states, local income taxes, are also relied upon to produce impressive results.
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- Experience indicates that many local units initially selected forms which later became inadequate to respond to their increased size, complexity or service management challenges. In those instances, state law is likely to detail procedures and substantive requirements pursuant to which a general purpose local government unit may change its classification. The local government may wish to assume a broader range of powers, both regulatory and financial, to respond to the greater complexity. It is not uncommon, for instance, for state law to establish several “classes” of municipalities, each one with a delimited range of powers and revenue raising capabilities. Greater population and urban density will frequently authorize a local purpose government to become a city of a different class, with the resulting enhancement of governmental functions such reclassification brings.
- There are local government structures that envision appointed members. The courts have reviewed election mechanisms where the governments have determined to have elections. They have not substituted their judgment for that of the local entities on whether offices shall be elective or appointive. The subject matter of a regular election to elective offices necessarily includes who may be on the ballot and the pertinent role of political parties. The courts have scrutinized laws governing write-in voting, ballot access by minor parties and independent candidates, and term limits. They have also dealt with challenges to laws proscribing party endorsements in non-partisan elections, which in turn are often the results of earlier reforms to make local governments less subject to partisan pressure. Several interests are relevant to the judicial balance. First, the state has a legitimate interest in assuring that items on the ballot have sufficient local support, so as to avoid ballot...local
- The National Labor Relations Act does not cover state and local government employees. Their labor relations are covered by a mixture of the common law, numerous state statutes, and local ordinances. There is enormous variety, and local laws must be consulted.
- The roles of private citizens in the exercise of local government authority have several dimensions. In many jurisdictions, by constitution, statute or charter, the local government’s citizens are accorded a legislative role in the exercise of initiative (enactment of legislation by the voters), referendum (approval or disapproval by voters of legislation enacted by the local government), or recall (mid-term removal of local officials upon vote of the citizenry). All processes involve similar notice, petition and election steps with attendant questions discussed elsewhere in this text. Recall may have specific requirements limiting the target offices and necessitating statement of reasons. The responsive roles of the local government during and after the processes may be specified in order to avoid the necessity of the election, if possible, and to protect the results from immediate reaction. It is important ...cannot accomplish what the local legislative body could not... ...local...
- Having decided to tackle the thorny issues related to local governments’ elections for local offices or to the exercise of initiatives and referenda, the U.S. Supreme Court and the lower federal courts developed to a substantial extent the dimensions of the dictates of the fourteenth and fifteenth amendments to the U.S. Constitution. In doing so, the courts confronted the myriad forms of local government, the occasional responsiveness of those forms to local needs, disparities of voting strength, and limitations frequently favoring rural interests, long-term residents, the white majority, or owners of real property. Some referenda had historically been designed on other than a simple majority basis, excluded some people from participation where their interests were not as great as others’, and were limited to certain legislative subject matter. Historically, popular approval or rejection of government legislation might sometimes occur only if an extraordinary majority voted to do so...
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Chapter VI. Considerations Pertinent to Citizen Litigation with Local Governments 73 results (showing 5 best matches)
- The questions discussed throughout this text reach the attention of the courts in a variety of ways. Challenges to local government actions or failures to act are raised by individuals, groups, government entities, and classes affected by ordinances and administrative implementation thereof. These challenges may be raised directly or through attorneys general in actions quo warranto, questioning the authority by which an officer or a government entity purported to hold or create office; in court reviews following upon the exhaustion or denial of administrative review procedures, either by “certiorari review” upon the administrative record or by such procedures as mandamus to compel the performance of an allegedly non-discretionary duty; in declaratory judgment actions; in individual actions seeking injunctive relief or damages; in taxpayer suits on behalf of or against the local government seeking to recover illegal expenditures, compel or restrain action; and in defenses to the...
- Nevertheless, there are some aspects common to citizen litigation with local government which deserve brief consideration in this chapter. Municipal immunity, restrictive statutes of limitations, and notice and claim-filing requirements will be viewed in the context of citizen suits in tort against the municipality. The evolving liability of local governments in actions under 42 U.S.C.A. § 1983 will be discussed. The chapter will conclude with some observations on standing in individual and taxpayer actions against the local government, primarily in state and local courts.
- The Supreme Court has held that state agencies, the states, territories, and their officials acting in official capacities were not intended to be persons to whom § 1983 applies and are not subject to suit thereunder for damages. Other political subdivisions are different—the Court has held that local governments are within the intended scope of “persons” for purposes of liability under § 1983. The Court has also held that respondeat superior, which imposes automatic responsibility on the employer for the acts of employees, does not apply. Thus, vicarious liability will not apply to extend liability beyond that of the the person who actually inflicted the injury. Only when the execution of the government’s policy or custom inflicts the injury, when that policy or custom is the moving force, the cause, will the local government be held liable for damages. Included with such customary evidence of government policy as its laws and regulations are: policy choices made by the government’...
- Section 1983 actions may be brought in federal or state court. Unlike states and state agencies, municipalities cannot assert eleventh amendment immunity as a defense to § 1983 actions. Nor can a municipality assert the good faith of its officers as a defense to municipal liability. Remember that the U.S. Supreme Court has ruled that the eleventh amendment bars federal court actions for monetary relief against the state, and that neither the state nor state officials acting in their official capacities are “persons” to whom § 1983 applies. Neither theory bars action for prospective declaratory and injunctive relief, and at any rate, the states’ eleventh amendment immunity in damage actions is of no moment in actions against municipalities. Still, the classification by state law of subsidiary entities into either state agencies or local government units remains important because neither the eleventh amendment nor the Supreme Court ruling confirming immunity of states and state...
- In 1978, the U.S. Supreme Court held that local governments were among those persons to whom the Civil Rights Act of 1871, now 42 U.S.C.A. § 1983, applies. Since then, the Court and other courts have attempted to define the contours of the increasingly complex theories of liability spawned by this ruling in the atmosphere of tension and uncertainty that inevitably accompanies massive local government exposure to liability for damages and extensive attorney fees.
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Chapter IV. Acquisition, Limitations on Use, and Disposition of Goods, Services and Property 140 results (showing 5 best matches)
- Some state constitutions commit the granting of franchises to local, politically accountable bodies. Even without such clauses, local involvement is frequent. Cities award franchises to utilities and others for use of public streets (transit, power, water and sewage, cable television, e.g.) below, above and at ground level. A franchise is a right or privilege, essential to the performance of the primary purpose of the grantee, which can only be granted by the government. It is a contract conferring upon the grantee a property right, analogous to an easement between private parties. As a result grantees can be protected against such incursions as municipal impairment although they may accept their rights subject to an implied obligation to relocate the facilities at their own expense when necessary to a proper government use of the streets. A city must have both the authority to require the grantee to seek the franchise and the power to ...sought competitively, in the award to one...
- What were viewed as exorbitant conditions imposed by cities on cable franchises (reserved channels, numbers of channels, fee sharing, programming, e.g.) and the demonstrable economic risk to the industry of competition driven promises to municipalities led Congress to enact a statute designed to encourage the growth of cable systems. While the city franchise role was not totally displaced by this 1984 law, city (and state) efforts to set certain costs, to dictate cable fees, and to regulate the content of programming and advertising were preempted. There was some regulation by the Federal Communications Commission, but escalation of the then deregulated rates charged to cable subscribers, inter alia, resulted in congressional legislation in 1992. That law subjected the industry to rate regulation by the F.C.C. and by local government franchising authorities, prohibited the latter from awarding exclusive franchises, imposed various restrictions including the controversial and... ...a...
- A number of local government contracts run a sizeable risk of invalidation as contrary to public policy by reason of their duration, the nature of the delegation or of the government’s promise, invidious discrimination, or improper purpose. The challenges may be brought by the municipality in defending its refusal to honor the contract, or by challengers seeking to enjoin the contract’s implementation or to recover value given by the city pursuant to the allegedly invalid contract. Arguments raised by the challengers may be extremely wide-ranging: that the contract will extend for an unreasonable length of time; that it will extend beyond the term of the present governing body; that it has unfairly or unwisely tied the hands of the local council’s successors; that the government has agreed to exercise governmental powers in predetermined ways, or to refrain from exercising them; that the agreement amounts to an invalid delegation of legislative power to others; that there was a...
- Judicial recognition of possible municipal antitrust liability for its activities or those in which it joins with private parties, whether labeled governmental or proprietary, resulted in such a rapid escalation of claims that Congress removed the damages remedy under federal antitrust law. Illustrative of the potential reach are occupational licensing and regulation, operation of sports and convention facilities, zoning and rezoning, urban development, award of franchises, operation of garbage collection services, transportation services (including taxicab monopolies, transit systems, airports, and parking lots), and the provision of utility services. While courts have found appropriate authorization for much municipal activity alleged to be anticompetitive, and have found other instances where the exemption could not be extended to the challenged activity, the issue of the municipality’s exemption is, of course, not synonymous with the question of its ultimate liability under the...
- Our earlier discussion of provisions designed to assure the integrity and undivided loyalty of municipal officials alluded to the invalidation of municipal contracts attended by the appearance of conflict of interest. It also described possible criminal penalties for officials and employees who, while associated with the municipality or (sometimes) during a specified period thereafter, contract with, or acquire financial interests in contracts with, their local government. Such contracts are considered at common law to be against public policy and in addition are specifically prohibited by statute or charter in many jurisdictions. Prohibited are contracts in which a member of the government or an officer of the municipality has a conflict of interest. The ban is categorical and has no regard to the fairness of the contract to the municipality, to the level of involvement of the member or officer, or to whether improper influence was actually exercised. In some jurisdictions, a...
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Chapter III. Regulation of Conduct and the Use of Land 177 results (showing 5 best matches)
- All zoning ordinances are in some senses exclusionary; their purpose, after all, is to limit the development of land that would otherwise occur if market forces were left unchecked. The term has acquired a more specific meaning, though, as it characterizes ordinances challenged as unreasonable and invalid in that they fail to protect the broader public health, safety, and welfare. Courts sitting in states with heavily congested areas and strong traditions of local authority, autonomy, and involvement in land use regulation, and also generally possessing active views of the role of the state constitutions, have sought to expand local governments’ consideration of regional social and economic factors in their regulatory decisions. The possible legal doctrinal bases for this greater level of judicial review are at least twofold. First, since zoning powers, like all municipal powers, are delegated from the state to the local government, some courts have held that municipal zoning laws...
- Even if Congress has not acted, Commerce Clause objection may be raised when on balance, the putative police power gain is outweighed by the undue burden which impedes the free flow of interstate commerce, when then there are less risky alternatives, or where the enactment discriminates against interstate commerce in favor of local commercial businesses. The so-called dormant Commerce Clause is said to implicitly divest states of that power to regulate interstate commerce which is positively granted to the federal government. Individual states are prohibited under the Clause from discriminatory action aimed directly at interstate commerce, from enacting state regulations that, while facially nondiscriminatory, unduly burden interstate commerce, and from regulating those aspects of commerce that by their unique nature demand cohesive treatment. Pursuant to its Commerce Clause power, though, Congress may expressly authorize state and local laws that would otherwise be invalidated by...
- As has been noted earlier, local ordinances prohibit a large number of uses of land that are deemed so detrimental to the public health, safety, morality or welfare as to be nuisances. These prohibitions raise the question of whether the nuisance declaration, which may totally prohibit an ongoing use of the land, constitutes an unconstitutional taking of property without just compensation. Because of the applicability of the federal takings clause to state and local government action, the standard is one of federal rather than state judicial decisionmaking. Recent Supreme Court case law makes clear that government regulation that prohibits a properly defined nuisance will not be invalidated as an unconstitutional taking, irrespective of its financial impact on the property. That standard is generally referred to as the nuisance exception to the takings clause. At the same time, though, the Court has made clear that state and local power to prohibit nuisances is strictly limited to...
- The rules may be slightly different in those jurisdictions where voters may participate directly in the local government regulatory process, either through the initiative or referendum process. In some jurisdictions, courts have held that the specific legislative method of enacting or amending zoning ordinances was meant to be exclusive. A growing number of jurisdictions, however, permit zoning ordinances or amendments to be enacted by initiative, or to be approved or rejected by referendum. As noted in Chapter II, the initiative and referendum processes are subject to the constitutional limitations that affect the legislative power, however exercised, and are available for legislative, not administrative, matters. Thus, the Maryland court found initiative, but not referendum, inconsistent with Maryland’s delegation of home rule legislative power to the local legislature. In Oregon, with some following elsewhere for a time, judicial views of small-spot rezoning led the courts to...laws
- A number of zoning enabling statutes expressly exempt, or are interpreted to imply local power to exempt individual parcels from the operation of local zoning ordinances. Commonly exempted is the property of paramount government units (with the resulting intergovernmental power disputes as defined described in Chapter I) and property of the zoning government itself. These governmental exemptions are generally limited to property used in the performance of governmental rather than proprietary functions, whether the use be by the government directly or by private parties to whom the property is leased. Even if an exemption is not expressed in the zoning ordinances, a court will decree that a municipality is not subject to zoning restrictions in the performance of its governmental functions. Under exemptions, for example, municipalities have been permitted to construct fire houses and sewage disposal plants in single family residential districts.
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Copyright Page 4 results
- Nutshell Series, In a Nutshell,
- West, a Thomson business, has created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. West is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- COPYRIGHT © 2003 By West, a Thomson business
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Title Page 4 results
Outline 30 results (showing 5 best matches)
- A. Citizen Tort Claims Against the Local Government
- B. Claims Against the Local Government Under 42 U.S.C.A. § 1983
- § 1. Local Government and Sovereignty
- Chapter II. Formation of the Local Government, Alteration, Boundary Changes; Some Problems of Organization and Operation—Officers, Employees, Allocation and Delegation of Functions, Elections
- § 1. Incorporation of the Local General Government
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Index 105 results (showing 5 best matches)
Advisory Board 9 results (showing 5 best matches)
- Publication Date: August 8th, 2003
- ISBN: 9780314264893
- Subject: Local Government
- Series: Nutshells
- Type: Overviews
- Description: Reliable source of local government law features added emphasis on finance, including special tax districts and the implications of the Civil Rights Act of 1991. Discusses taxation, borrowing, and updating in the area of 1983. A review of each rule is included, accompanied by expert explanation of its underlying concepts.