A primer on counties and municipalities.

• Author: Tucker, David G.
• Position: Part 2

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.

Conflicting Ordinances

* Noncharter County Ordinance Conflict with Municipal Ordinance

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)

* Charter County Ordinance Conflict with Municipal Ordinance

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, [section] 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, [section] 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)

* State-authorized County Preemption

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...