by David G. Tucker
A previous discussion in the March issue of the Bar Journal considered the nature of counties and municipalities and the sources of their powers to govern and regulate. Because counties and municipalities occupy overlapping territories and constituencies, the possibility exists that issues might arise under which a county has a different regulatory scheme than does a municipality. This might occur where a municipality pursues different policy objectives than the county. What happens when these issues arise? This discussion describes the framework under Florida law for addressing these issues.
There are times when county ordinances and municipal ordinances conflict. In a noncharter county, the municipal ordinance prevails over the county ordinance within the municipality to the extent of a conflict.1 However, a municipality is not free to adopt an “opt out” ordinance merely to avoid being subject to a county ordinance that imposed impact fees even on development within the incorporated municipal limits.2 Although Volusia was a charter county, a similar rule was applied to noncharter counties in Seminole County v. Casselberry, 541 So. 2d 666 (Fla. 5th DCA 1989). The court in Seminole County noted that Seminole was not a charter county, as was Volusia County, but that the Volusia charter included the same provision for resolving county/municipal ordinance conflict as the constitutional provision governing noncharter counties.3 A municipal ordinance attempting to opt out of a county regulatory plan must serve a valid municipal purpose beyond removing the municipality from beneath county regulation.4
The constitution requires that a county charter specify whether a county ordinance controls over a municipal ordinance in the event of a conflict.5 Frequently, charter provisions will echo the constitutional provisions as to noncharter counties, namely that municipal ordinances prevail in the event of conflict within the municipality. Even in such charter counties, however, the conflicting municipal ordinance must serve a valid municipal purpose.6 In addition, in some charter counties, the charter itself may provide that county ordinances prevail in certain contexts and that the county has the power to preempt municipal ordinances in other contexts.7 In that case, however, the Florida Supreme Court distinguished between county preemption of regulatory authority and the undertaking by a county to provide services previously provided by the municipality.8 The court determined that where a charter county sought to preempt municipal regulatory authority, Fla. Const. art. VIII, §1(g) governed; but where the issue is county provision of services as opposed to municipal provision of services, the court found that the transfer of powers provisions set out in Fla. Const. art. VIII, §4 governed. More recently, the Fifth District Court of Appeal has held land use authority is regulatory in nature and, thus, may be preempted to a charter county through a proper charter amendment.9
The legislature may authorize even noncharter counties to preempt municipal ordinances. For example, in spelling out the powers of municipalities to adopt emergency management plans, the legislature expressly requires that, “[e]ach municipal emergency management plan must be consistent with and subject to the applicable county emergency management plan.”10 As a practical matter, the legislature does not often authorize noncharter counties to preempt municipalities.
Litigation in Which County and Municipality are Adverse Parties
On rare occasions, a county may sue a municipality or a municipality may sue a county. To try to create an alternative dispute resolution process to resolve the difference between governmental entities without litigation, the legislature has enacted F.S. Ch. 164, the Florida Governmental Conflict Resolution Act. The FCGA does not apply to governmental entities that have already entered into alternative dispute resolution agreements among and between themselves, or to those entities that have reached impasse during such processes.11 The FCGA applies, at a minimum, to substantive disputes regarding the following:
(1) Any issue relating to local comprehensive plans or plan amendments prepared pursuant to part II of chapter 163, including, but not limited to, conflicts involving levels of service for public facilities and natural resource protection.
(2) Municipal annexation.
(3) Service provision areas.
(4) Allocation of resources, including water, land, or other natural resources.
(5) Siting of hazardous waste facilities, land fills, garbage collection facilities, silt disposal sites, or any other locally unwanted land uses.
(6) Governmental entity permitting processes.
(7) Siting of elementary and secondary schools.12
For those entities to which the FCGA applies, immediately upon filing suit against another governmental entity, the court “shall” enter an order abating the proceedings until the procedural requirements of the FCGA have been met. To commence the procedure, the initiating governmental entity must provide notice as provided in the statute to the entity with which it has the conflict. Upon compliance with the notice provisions, the entities move into the “conflict assessment phase.”13 This phase requires a meeting between the appropriate staff of the conflicting entities to try to reach a solution. This meeting must be advertised at least 10 days prior to the meeting itself in not just a newspaper of general circulation but the newspaper of “widest” circulation in the jurisdictions having the conflict.14
In the event that the staffs of the conflicting entities are still unable to reach a solution, the governing bodies of the joint conflicting entities must hold a joint public meeting to try to resolve the conflict.15 If the entities are unable to reach a solution at that meeting, the entities must participate in mediation.16 In the event mediation fails, only then are the entities permitted to go forward with the litigation.17
The FCGA imposes a duty to negotiate in good faith upon the conflicting entities. Where one governmental entity refuses to negotiate in good faith having received notice of the initiation of the Ch. 164 procedure, and the governmental entity that initiates the Ch. 164 process is the “prevailing party” in the litigation, the prevailing party must recover attorneys’ fees from the governmental entity that did not negotiate in good faith.18
Transfer of Powers
Fla. Const. art. VIII, §4 provides a generalized procedure under which powers may be transferred among and between local governments, including counties, municipalities, and special districts. That section provides:
Section 4. Transfer of powers. By law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law.
The Florida Supreme Court has construed this provision to apply equally to charter and to noncharter counties.19 In Broward County v. City of Fort Lauderdale, 480 So. 2d 631 (Fla. 1985), the court distinguished between an effort under the county charter for a county to take over provision of municipal services from an effort to preempt regulatory authority through a county charter.20 In comparing the ability of a charter county to preempt municipal regulations with the dual referenda required under art.VIII, §4, the court reasoned:
Thus, on the one hand the constitution has a provision intended to expand the power of charter counties, while on the other hand it includes a provision to expand the shared power of governmental units to transfer powers and functions. Both were intended to reduce the need for special laws and constitutional amendments. The conflict arises when the expansive power of a charter county collides with the requirements of section 4. But section 4 did not contemplate giving municipalities veto power over a charter county’s preemptive power. Rather, section 4 contemplated situations where a law authorizes dual referenda or where the city and county mutually desire to shift a function or power of the type which required special law or constitutional amendment under the 1885 constitution.
A line must be drawn between these overlapping provisions. We hold that section 1(g) permits regulatory preemption by counties, while section 4 requires dual referenda to transfer functions or powers relating to services. A charter county may preempt a municipal regulatory power in such areas as handgun sales when county-wide uniformity will best further the ends of government. §25.86(7), Fla. Stat. (1983). Dual referenda are necessary when the preemption goes beyond regulation and intrudes upon a municipality’s provision of services.21
The legislature retains plenary power under art. VIII, §4 to provide “by law” another means to transfer powers without requiring dual referenda. “By law” could describe a general law or a special law, although if the legislature attempted a transfer of powers by special law in a charter county, the specific requirement of voter approval would still require that a special law be approved by the voters of the county.
The preceding discussion has concerned itself with how disputes might arise and be resolved between cities and counties. It is, therefore, useful to briefly consider the mechanism under which they might cooperate.
The state has recognized that public policy is best served when governmental entities cooperate. To further this objective, the legislature has enacted the Florida Interlocal Cooperation Act, codified in Part I of F.S. Ch. 163 (FICA). The premise of FICA is to “permit local governmental units to make the most efficient use of their powers by enabling them to cooperate with other localities”22 and expressly authorizes a public agency of Florida to exercise jointly with any other public agency of Florida, another state, or of the United States, any “power, privilege, or authority which such agencies share in common and which each might exercise separately.”23
The FICA provides that the vehicle for such cooperation is an interlocal agreement, and sets out the required elements of such an interlocal agreement.24 Such interlocal agreements are considered contracts binding the parties.25 FICA also authorizes the creation of a separate entity to administer or execute the provisions of the agreements between the signatory governmental parties.26
Interlocal agreements between counties and municipalities have been used to set forth vehicles for joint municipal/county financing of capital projects.27 Such agreements can be validated as part of bond validation proceedings.28 Interlocal agreements among and between various political subdivisions have been used to create regional entities to allow the local governments to take advantage of economies of scale in providing certain services.29
An interlocal agreement, however, cannot be used to expand the powers of the parties beyond the powers they already enjoy.30 For example, an interlocal agreement under FICA could not authorize the governing body of one municipality to meet outside the territorial limits of that municipality.31
Dual Taxation and Annexation
Both the subjects of dual taxation and municipal annexation are material for lengthy articles unto themselves. This discussion will briefly identify sources of governing law.
Art. VIII, §1(h) provides “property situate within municipalities shall not be subject to taxation for services rendered by the county exclusively for the benefit of the property or the residents in unincorporated areas.” This section only limits the power of counties to expend ad valorem taxes, not other non-ad valorem county revenues.32 The legislature has prohibited the use of countywide funds raised within a municipality from being used to fund “any service or project provided by the county when no real and substantial benefit accrues to the property or residents within a municipality or municipalities.33 County revenues derived from or on behalf of the unincorporated area are excluded from this statutory limit. Similarly, F.S. §218.64(1) deems a portion of the county portion of the local government sales tax to be “derived on behalf of the unincorporated area.”
The statutory language echoes the decision of the Florida Supreme Court in City of St. Petersburg v. Briley, Wild & Associates, 239 So. 2d 817 (Fla. 1970), which found the constitution did not prohibit the use of county taxes raised in municipalities from being used for county programs that provided a “real and substantial benefit” to the municipality.34 The benefit required for municipal area residents is not a “direct benefit” occurring within municipal areas, but may consist of “indirect benefits.”35 Whether the requisite benefit is provided is a factual question requiring an analysis of how a service is provided and performed.36 No constitutional provision prohibits the taxation of unincorporated parts of the county for the benefit of areas in a municipality.37
The power to annex an unincorporated area to a municipality is reposed in the legislature.38 The Florida Constitution provides that municipal annexation of unincorporated territory, merger of municipalities, and exercise of extra-territorial powers by municipalities shall be as provided by general or special law.39 The legislature, while retaining the plenary power to act through a special law, has authorized municipalities to share the annexation power through F.S. Ch. 171.40 Ch. 171 specifies the uniform method for municipalities to follow in annexing territory when the annexation is not accomplished through a special law of the legislature. 41
As Florida continues to grow, the counties and municipalities will necessarily find themselves jointly addressing issues created by the growth. Counties and municipalities will be forced to deal with everyday issues affecting their citizens. In this environment, a basic understanding of the roles, powers, and law governing counties and municipalities and their relationships will be helpful.
1 Fla. Const. art. VIII, §1(f).
2 Ormond Beach v. County of Volusia, 535 So. 2d 302 (Fla. 5th D.C.A. 1988).
3 Seminole County v. Casselberry, 541 So. 2d 666 (Fla. 5th D.C.A. 1989).
4 Ormond Beach, 535 So. 2d at 304-305.
5 Fla. Const. art. VIII, §1(g).
6 Ormond Beach, 535 So. 2d at 304.
7 Broward County v. Fort Lauderdale, 480 So. 2d 631 (Fla. 1985).
9 Seminole County v. Winter Springs, 935 So. 2d 521 (Fla. 5th D.C.A. 2006).
10 Fla. Stat. §252.38(2) (2006).
11 Fla. Stat. §164.1041(1) (2006).
12 Fla. Stat. §164.1051 (2006).
13 Fla. Stat. §164.1053 (2006).
14 Fla. Stat. §164.1031(7) (2006).
15 Fla. Stat. §164.1055(1) (2006).
16 Fla. Stat. §164.1055(2) (2006).
17 Fla. Stat. §164.1056 (2006).
18 Fla. Stat. §164.1058 (2006).
19 Sarasota County v. Town of Longboat Key, 355 So. 2d 1197, 1201 (Fla. 1978).
20 Broward County v. City of Fort Lauderdale, 480 So. 2d 631 (Fla. 1985).
21 Id. at 634-635 (emphasis in original).
22 Fla. Stat. §163.01(2) (2006).
23 Fla. Stat. §163.01(4) (2006).
24 Fla. Stat. §163.01(5) (2006).
26 Fla. Stat. §163.01(7) (2006).
27 See, e.g., Roper v. City of Clearwater, 796 So. 2d 1159 (Fla. 2001).
28 State v. Daytona Beach, 431 So. 2d 981 (Fla. 1983).
29 Aucilla Area Solid Waste Administration v. Madison County, 890 So. 2d 415 (Fla. 1st D.C.A. 2004).
30 Op. Atty. Gen. Fla. 2003-03.
32 Manatee County v. Town of Longboat Key, 365 So. 2d 143, 148 (Fla. 1978).
33 Fla. Stat. §125.01(7) (2006).
34 City of St. Petersburg v. Briley, Wild & Associates, 239 So. 2d 817 (Fla. 1970).
35 See Town of Palm Beach v. Palm Beach County, 460 So. 2d 879 (Fla. 1984).
36 See, e.g., Alsdorf v. Broward County, 373 So. 2d 695 (Fla. 4th D.C.A. 1979).
37 McLeod v. Orange County, 645 So. 2d 411 (Fla. 1994).
38 Fla. Const. art. VIII, §2(c).
40 Northridge General Hospital, Inc. v. City of Oakland Park, 374 So. 2d 461 (Fla. 1979).
41Id. at 464.