RECENT DEVELOPMENTS

The news this month is on two fronts. First, the National Civic League Board approved unanimously the eighth edition of the Model City Charter in mid-November 2002. In addition, we have two cases from Florida. Local government won both of them in the Florida intermediate appellate court.

The Model City Charter movement dates back to the Progressive Era. The National Civic League, a 108-year old nonprofit, nonpartisan organization dedicated to strengthening citizen democracy, decided to publish a new edition in view of the substantial changes that have taken place in local governments over the last decade. The result was the eighth Model City Charter.

The Charter is a lengthy document. I was privileged to participate as the American Bar Association’s representative to the Charter Advisory Committee. It was an eye-opening experience concerning the theory and practice of local government. It also had immediate relevance. Just after attending a borough council meeting as the municipal attorney, where I was asked to adjudicate a dispute between the mayor and the council and further asked who I was really representing in such a dispute, I received a call from Civic League staff. Do you think the Model Charter should provide for separate counsel for the governing body and the administration in case of conflict between the two? The answer, as reflected in
§ 4.03 of the Model Charter was—one attorney is enough.

The eighth edition, like its predecessors, emphasizes nonpartisan administration. Elections are to be without party designation. § 601(c). Administration of the city is through a city manager who is appointed on the basis of professional qualifications. § 3.01. The full powers of referendum and recall, consistent with state law, are reserved to the people of the city. § 6.04. Such powers would include land-use referenda, which are generally permitted by state law in the west and not allowed in the east. City council members, once elected, are forbidden to interfere with employees by giving them orders or direction. § 401(b) and § 205(c). Like the manager, selection of all city employees is to be on a merit basis. § 402(b). Thus, the role of political parties in organizing and administering local government is disfavored by the charter.

These established principles have been in the versions of the Model City Charter essentially since 1915.

During deliberations the question was asked who makes most use of the Model City Charter. Most likely, it will be newly incorporating areas, particularly in the south and west where population is growing. Thus, the ideal of nonpartisan administration will be implanted in these newer centers in our country.

With this in mind, the innovations in the eighth charter are interesting. There is much more explicit reference to the city’s place in the region. The provision on intergovernmental relations has been broadened to facilitate cooperation between cities and different levels of government. Even if the city lacks power to undertake a given activity, it may contract with another city or a county that has such power, or the state, for the undertaking of that activity. § 103.

Further, the provisions for campaign finance reform have been much enhanced. So have the provisions regarding conflicts of interest. See generally Article 7. Not all that long ago courts debated whether cities even had the authority to enact campaign disclosure laws. Now they are part of the Model City Charter, as are contribution and spending limitations.

Finally, although it provides a variety of methods for electing city council members—at large or by district—and mayoral selection by the council or the voters, and a variety of election procedures, the Charter retains the option of election by proportional representation. This is interesting in light of Professor Robert Dahl’s recent critique of the American electoral system as neither equitable like a true proportional representation system, nor fully accountable like the British parliamentary system. Robert A. Dahl, How Democratic Is the American Constitution? (Yale U. Press 2001). Specifically, the Model Charter recommends consideration of proportional representation by preference voting. The system, now in use in Cambridge, Massachusetts, allows voters to designate second, third, etc., choices when a number of candidates are running for multiple seats at-large. There is an interesting tie between this proposal and the Bush v. Gore flap because one cannot imagine trying to integrate hanging chads with a complex system of preference voting.

This fascinating document should be consulted by all municipal attorneys, even in communities with established charters or in states, like New Jersey, where charter alternatives are provided by legislation rather than by constitutional home rule provisions. The charter should be available in January on the Civic League’s website at www.ncl.org.

The first Florida case was submitted by Vivien Monaco, an assistant county attorney in Orange County (Orlando), Florida. The landowner challenged denial of a change in zoning from agricultural to residential use. The request had been denied in substance because of school overcrowding. The county’s policy plan provided that new development had to be timed to “coordinate with adequate school capacity.” Even though Orange County had not taken advantage of Florida’s authorization for formal school concurrency, i.e., an explicit process of coordinating development approvals with school construction, the Florida Court of Appeal for the Fifth District upheld the denial of rezoning as inconsistent with the county policy plan. Further, it noted that the policy plan had the force of an ordinance. Mann v. Board of County Commissioners, Case No. 5D01-1741, 2002 Fla. App. LEXIS 14285 (Fla. Dist. Ct. App. Oct. 4, 2002).

The other Florida case, provided by Susan Trevarthen, demonstrates once again the incredible all or nothing character of federal land-use damage claims. Plaintiff developer, alleging due process violations, had won a state trial court judgment of $19,203,491 against Pompano Beach, Florida. The facts involved a tangled web of zoning approvals, followed by building permits granted and then withheld, developer financial difficulties, and efforts to recast a once approved development in another form. All this occurred over a quarter century measured from the time when permits were first sought until the recent decision. The court found that the various actions of the city did not violate procedural due process of law because the landowner had an opportunity to challenge them in court. As to substantive due process, the court found that later revoked building permits had conferred no constitutional property rights on the developer. They were mere executive acts that created rights of state law that did not rise to the level of fundamental property interests protected by the doctrine of substantive due process. Accordingly, the court remanded with instruction to enter judgment in favor of the city. This was done even though the court assumed, for the purposes of the decision, that the alleged arbitrary acts of the city administration, including stalling tactics, improper revocation of permits, etc., had indeed occurred. The court concluded that only legislatively authorized policy decisions could be actionable. City of Pompano Beach v. Yardarm Restaurant, Inc., Nos. 4D99-977, 4D00-591, 4D00-2499, 2002 WL 31255439 (Fla. Dist. Ct. App. Oct. 9, 2002).

Under Florida’s law, these decisions are not technically binding on the other four Florida District Courts of Appeal. They are of great significance because Florida is an important land-use state. Thanks to Ms. Monaco and Ms. Trevarthen for providing them.

Finally, I quote the following from the November 6, 2002 Land Use Law Reporter re: potential candidates for land-use animals of the year:

ANOTHER ANIMAL STORY: Faithful reader Peter Buchsbaum of New Jersey reports the state’s intermediate appellate court has ruled, in a regrettably unreported decision, that the sale of hermit crabs and iguanas constitutes the sale of “pets,” thus subjecting the seller to zoning regulations covering pet shops. “You could not make this one up,” Buchsbaum remarks.