by David G. Tucker
As Florida continues to grow, more rural areas develop urban characteristics. Empty lands fill with people and houses. Local governments are called upon to provide more and more services to these areas. In light of this trend, it is periodically useful to review some of the basic building blocks of local government in Florida, specifically, counties and municipalities. This article is the first part of a two-part discussion of these building blocks. This part discusses the establishment and powers of counties and municipalities, while Part Two will discuss their interrelationships.
The Florida Constitution mandates the division of the state into “political subdivisions called counties.”1 The legislature is tasked to subdivide the state into counties “by law.” In F.S. Ch. 7, the legislature has divided the state into 67 counties whose boundaries are defined severally in the subsections of Ch. 7. Counties are defined territorially — in other words, in creating counties, there is no consideration of population, provision of services, or similar elements that must be present to justify the creation of municipalities.
The constitution contemplates two types of counties: charter counties and noncharter counties.2 A charter county is one governed under a county charter. A charter may be adopted, amended, or repealed only upon approval of the electors of the county in a special election. Art. VIII, §1(c) of the Florida Constitution, authorizes the legislature to enact procedures either through general or special law under which “county government may be established by charter which shall be adopted, amended or repealed only upon vote of the electors of the county in a special election called for that purpose.” The procedures for enacting and implementing a county charter are set forth in general law in F.S §§125.60-125.64 and 125.80-125.88(2006).
The constitution directly confers upon charter counties “all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.”3 This is a broad grant of power. As one court has recently noted: “Case law has long held that charter counties are akin to municipalities and have the same powers and authority to implement ordinances as municipalities unless an intention to exclude them is plainly discernable . . . . That upon a county becoming a charter county it automatically becomes a metropolitan entity for self-government purposes.”4 Charter counties do differ from municipalities in one important respect, however. Art. VIII, §1(g), Florida Constitution, limits the force of special laws within a charter county only to those special laws approved by the voters of the charter county. No similar constitutional limitation applies to special laws applicable to municipalities. In the event of a conflict between an ordinance adopted by a charter county and an ordinance adopted by a municipality, the constitution requires that the county charter itself define which ordinance prevails.5
Noncharter counties only have “such power of self government as is provided by general or special law.”6 The legislature has enacted F.S. Ch. 125 to confer and delegate powers to noncharter counties. In addition to specific powers conferred by the legislature upon counties (for example, the power to create municipal service taxing and benefit units), the legislature has also included a broad general delegation of home rule power to noncharter counties. F.S. §125.01(1)(w) authorizes noncharter counties to “perform any other acts not inconsistent with law, which acts are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law.” This delegation of home rule power to noncharter counties is broad.7 Nevertheless, it is a legislative, not a constitutional, grant of home rule power, and as such is subject to legislative regulation through special law in the same manner as is a municipality. In a noncharter county, in the event of a conflict between a county ordinance and a municipal ordinance, the noncharter county’s ordinance “shall not be effective within the municipality to the extent of such conflict.”8
The constitution requires that counties be governed by five or seven commissioners unless otherwise provided by county charter.9 County commissioners of both charter and noncharter counties are, thus, officers whose office is created under the constitution in the same manner as the sheriff, tax collector, property appraiser, supervisor of elections, and clerk of circuit court.10 The constitution allows a county charter or a special law approved by the voters to abolish any office when its duties are transferred to another office; in addition, such a special law or charter may also take away the tasks of ex officio clerk of the board of county commissioners, auditor, recorder, and custodian of county funds from the clerk of the circuit court and assign them to a different officer.
Unlike counties, municipalities are not required to be created by the legislature. Instead, the constitution confers upon the legislature the discretion to create municipalities. Thus, “[m]unicipalities may be established or abolished and their charters amended pursuant to general or special law.”11 The constitution confers upon municipalities “governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.”12 Municipal officers are not “constitutional officers.”
• Municipal Creation
The legislature has exercised its authority under Art. VIII, §2(a), Florida Constitution. F.S. Ch. 165 sets out procedures and conditions precedent for the incorporation, merger, and dissolution of municipalities, and F.S. Ch. 166 sets out municipal powers.
In F.S. §165.022 (2005), the legislature has declared that the procedures set out in Ch. 165 are the uniform method for incorporating municipalities. The statute reads, in pertinent part: “The provisions of the act shall be the exclusive procedure pursuant to general law for forming or dissolving municipalities in this state,” with the lone exception being formation of municipalities in those charter counties established under Florida’s 1885 Constitution. In contrast to the creation of counties, which has been done through general law and purely on a territorial basis, F.S. §165.041(1)(a) mandates that incorporation be accomplished through a special act of the legislature upon compliance with criteria in F.S. §165.041(2)(b). The criteria require a feasibility study and include standards that the feasibility study must show that the proposed municipality satisfies.
The feasibility study must be submitted to the legislature no later than 90 days prior to the first day of the regular legislative session in which the proposed municipal charter would be adopted. The elements that must be addressed in the feasibility study are:
1. The general location of territory subject to boundary change and a map of the area which identifies the proposed change.
2. The major reasons for proposing the boundary change.
3. The following characteristics of the area:
a. A list of the current land use designations applied to the subject area in the county comprehensive plan.
b. A list of the current county zoning designations applied to the subject area.
c. A general statement of present land use characteristics of the area.
d. A description of development being proposed for the territory, if any, and a statement of when actual development is expected to begin, if known.
4. A list of all public agencies, such as local governments, school districts, and special districts, whose current boundary falls within the boundary of the territory proposed for the change or reorganization.
5. A list of current services being provided within the proposed incorporation area, including, but not limited to, water, sewer, solid waste, transportation, public works, law enforcement, fire and rescue, zoning, street lighting, parks and recreation, and library and cultural facilities, and the estimated costs for each current service.
6. A list of proposed services to be provided within the proposed incorporation area, and the estimated cost of such proposed services.
7. The names and addresses of three officers or persons submitting the proposal.
8. Evidence of fiscal capacity and an organizational plan as it relates to the area seeking incorporation that, at a minimum, includes:
a. Existing tax bases, including ad valorem taxable value, utility taxes, sales and use taxes, franchise taxes, license and permit fees, charges for services, fines and forfeitures, and other revenue sources, as appropriate.
b. A five-year operational plan that, at a minimum, includes proposed staffing, building acquisition and construction, debt issuance, and budgets.
9. Data and analysis to support the conclusions that incorporation is necessary and financially feasible, including population projections and population density calculations, and an explanation concerning methodologies used for such analysis.
10. Evaluation of the alternatives available to the area to address its policy concerns.
11. Evidence that the proposed municipality meets the requirements for incorporation pursuant to s. 165.061.13
In addition, for counties having municipal overlays adopted pursuant to F.S.§63.3217 information about the overlay must be included in the submission of the feasibility study.
The municipal charter must contain the elements set forth in F.S. §165.061 (2005). In addition, a municipal charter cannot prohibit “the legislative body of the municipality from exercising its powers to levy any tax authorized by the Constitution or general law.”14
• Municipal Powers
The constitutional grant of power to municipalities is subject to two limitations. First, the powers exercised must be exercised in furtherance of a municipal purpose; second, the powers may be exercised “except as otherwise provided by law.” This constitutional grant of power is more limited than the grant of power to charter counties. Charter counties are limited only by general law or by special law approved by the electors. Municipalities, in contrast, may be regulated even by local laws not approved by vote of the electors, in the same manner as noncharter counties.
To implement Art. VIII, §2(b), the legislature enacted F.S. §§166.021(3) and (4) (2006), as follows:
(3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution.
(4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed.
The definition of municipal purpose continues to evolve. Specifically, the Florida Supreme Court construes “municipal purpose” in Art. VIII, §2, Florida Constitution (municipal powers) more broadly than the court construes the term “municipal or public purposes” in Art. VII, §3(a), Florida Constitution (exemptions from ad valorem taxation).15
As Florida has grown over the last few decades, counties and municipalities have had to interact, and these interactions have not always been simple. Part Two will address some of the legal rules governing these interactions.
1 Fla. Const. art. VIII, §1(a).
2 Fla. Const. art. VIII, §1(c).
3 Fla. Const. art. VIII, §1(g).
4 Stork v. Bellsouth Corp., 847 So. 2d 1098, 1099 (Fla. 4th D.C.A. 2003).
5 Fla. Const. art. VIII, §1(g).
6 Fla. Const. art. VIII, §1(f).
7 Santa Rosa County v. Gulf Power Corp., 635 So. 2d 96 (Fla. 1st D.C.A. 1994).
9 Fla. Const. art. VIII, §1(e).
10 See Fla. Const. art. VIII, §1(d).
11 Fla. Const. art. VIII, §2(a).
12 Fla. Const. art. VIII, §2(b).
13 See Fla. Stat. §165.041(1)(b)1-11, (2005).
14 Fla. Stat. §165.061(1)(e)(2); 1998 Op. Atty Gen. Fla. 75.
15 See Dept. of Revenue v. Gainesville, 918 So. 2d 250 (Fla. 2005).
David G. Tucker is an attorney in the Tallahassee office of Nabors, Giblin & Nickerson, P.A., a firm that primarily represents local governments. He served as the county attorney for Escambia County and is a past president of the Florida Association of County Attorneys.
This column is submitted on behalf of the City, County, Local Government Law Section, Mary Helen Campbell, chair, and Jewel W. Cole, editor.