Home Rule: a Primer
| Publication year | 2005 |
| Pages | 26-40 |
74 J. Kan. Bar Assn. 1, 26-40 (2005). Home Rule: A Primer
74 J. Kan. Bar Assn. 1, 26-40 (2005)
Introduction
The Kansas Supreme Court recently reaffirmed that cities have broad home rule powers granted directly by the people of the state of Kansas and that the constitutional home rule powers of cities shall be liberally construed to give cities the largest measure of self government.(fn1) The opinion, State ex rel. Kline v. Unified Government of Wyandotte County/Kansas City, Kansas,(fn2) upheld the ability of cities to authorize the Sunday sale of alcoholic liquor despite a state law prohibiting such sales.
The clarity of the rules for interpreting home rule powers of cities (and counties) reaffirmed in Kline in March 2004 were, unfortunately, muddled in the decision of City of Topeka v. Board of Shawnee County Commissioners,(fn3) decided two months later. City of Topeka concerned the propriety of a county charter resolution opting out of the admittedly nonuniform planning and zoning laws for one brief moment, i.e., long enough to approve one specific plat decision. The Shawnee County charter resolution approved a subdivision plat in the three mile ring around the city of Topeka, which the latter had earlier rejected. While the rejection by the Court of the county's ad hoc approach to subdivision plat approval is easy to understand, the case reaffirmed certain contradictory rules regarding home rule power enunciated in earlier cases and rejected in others.
Initially, what was at stake in Kline was whether cities under home rule could exempt themselves from a state statutory prohibition against the Sunday sale of packaged liquor. However, in a broader sense, was the issue of whether the Kansas Supreme Court would further narrow the constitutional home rule powers of cities by court decision - a path the Court had taken in several earlier cases and appeared to have started down in earnest in 2001 with its decision in Bigs v. City of Wichita,(fn4) which involved a city's ability to charge a higher liquor license fee than state law permitted. The Kline court, however, upheld the Kansas City charter ordinance allowing Sunday sales of liquor and, in the process, overruled some of the faulty reasoning of the Bigs case.
What this article explores is whether the Kline and City of Topeka decisions reflect the possibility that the Kansas Supreme Court has developed two lines of cases - one line that broadly interprets home rule powers of cities and counties and a second line of cases narrowly interpreting these same powers. The battleground in these cases is focused on two basic interrelated questions: (1) what constitutes a uniform state enactment, and (2) when does state legislation pre-empt home rule action?
For the most part, Kansas appellate courts have looked favorably on the constitutional home rule powers of cities and the statutory home rule powers of counties - but not always. Problems have arisen, generally, as a result of the Court not limiting its holding to the facts of the particular case. Often, in these cases, the Kansas Supreme Court has expounded rules for interpreting home rule cases that narrow home rule powers and, sometimes, contradict other cases where more expansive rules of interpretation have been adopted. As a result, certain decisions of the Kansas Supreme Court are difficult, if not impossible, to reconcile. The following are examples of cases in several subject areas that may help to illustrate apparent conflicting rulings.
In the liquor control area, the appellate courts have upheld the following actions taken by cities under home rule: the authorization of Sunday sales of alcoholic liquor,(fn5) the imposition of earlier closing hours for private clubs than state law requires,(fn6) a local ban on open containers of cereal malt beverage,(fn7) and a ban of nude dancing in drinking establishments.(fn8) On the other hand, the Kansas Supreme Court has concluded that a city may not charge a higher liquor license fee than that which is provided in the Club and Drinking Establishment Act.(fn9)
In the area of taxation, the appellate courts have ruled that cities may enact an occupation tax,(fn10) including an occupation tax covering the renting of property with a tax rate based on the square foot of living area to be rented;(fn11) may enact a local sales tax without a referendum;(fn12) and may impose a platting tax as a condition of filing a plat.(fn13) However, the Kansas Supreme Court has opined that a city may not impose an amusement admission tax by ordinary home rule ordinance.(fn14)
In the area of planning and zoning, the appellate courts have held that a city may enact a plat tax as a condition for plat approval(fn15) and may add nine conditions as a part of a special use permit issued to a water district.(fn16) On the other hand, the Kansas Supreme Court has said that a city may not use home rule to impose a building permit requirement and exact a fee on a state construction project,(fn17) may not require city governing body approval of public right of way dedications in plats,(fn18) may not change the zoning classification of a specific parcel of property through an annexation agreement,(fn19) may not approve a plat for a specific development project by charter resolution,(fn20) and may not impose more stringent county environmental controls on confined animal feeding facilities.(fn21)
As a final example, in the area of economic development and related issues, the Kansas Supreme Court has ruled that a city or county may condemn private property for economic development purposes to be used by another private business(fn22) or for a race track,(fn23) and may loan or grant public moneys to private businesses.(fn24) On the other hand, the same Court has announced that a county may not use an ordinary home rule resolution to issue general obligation bonds to build a highway bypass in an attempt to avoid the provisions of a nonuniform permissive state law that allowed for a protest petition and an election prior to the issuance of the bonds.(fn25)
Another phenomena is that cities are much more likely to have their home rule actions upheld by the Kansas appellate courts than are the home rule-related actions of counties.(fn26) Of 37 appellate cases involving the interpretation, at least to some extent of home rule powers, about two-thirds of the cases have been decided favorably for cities.(fn27)
This is in contrast to 11 appellate cases interpreting county home rule powers of which only five have been decided favorably for counties.(fn28) This phenomena can be explained, in part, due to the basic difference in city and county home rule authority. City home rule is granted directly by the people,(fn29) whereas county home rule is granted by statute.(fn30)
Unfortunately, the Kansas Supreme Court has developed a tendency, when finding a county's home rule action improper, to establish restrictive rules regarding the interpretation for both city and county home rule powers.(fn31) These cases, which are discussed later, seem to ignore the constitutional mandate that city home rule power must be liberally construed to give cities the largest measure of self-government.(fn32)
Home rule in a nutshell means that a city or county no longer needs to look to state law for authorization to act. In general, if no state law exists, a city or county may act using home rule power and enact local legislation. Further, if a state law does exist on a subject but does not apply uniformly to all cities or to all counties, a city or county may exempt itself from the nonuniform state law by charter ordinance (city) or by charter resolution (county) and provide substitute or additional local provisions.
In order to understand the significance of the cases and the observations made above, it is necessary to have a basic understanding of local government home rule power, how this power is exercised, and specific features of the Kansas versions of home rule power.
Home Rule and Local Governments
Local governments in relation to state government
All local units of government must look to the state constitution or state statutes for the source of their powers, including the power of home rule. Courts, for the most part, have rejected the theory that local governments enjoy any inherent right to local self-government. Under our system of federalism, states are sovereign - not their local governments.(fn33)
Local governments are considered creatures of the state as well as subdivisions of the state and as such are dependent upon the state for their existence, structure, and scope of powers.(fn34) State legislatures have plenary power over the local units of government they create, limited only by such restrictions they have imposed upon themselves by state law and by provisions of their state constitutions, most notably home rule provisions.
Dillon's Rule: Dillon's Rule, although formulated by the courts for cities, is a reflection of the general dependency of all local governments upon state legislatures absent a home rule grant of authority. Dillon's Rule states:
It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation - not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied ... These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations ...(fn35)
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