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Legal Corner
By: William Bock, League General Counsel
Several items in the news recently have raised the issue of the authority of cities and towns to act in certain circumstances.
The first item involved the Goldwater Institute's claim that the Town of Gilbert did not have the authority to create a park like the
Freestone Recreation Center. Freestone is a very nice park facility that has many features such as a swimming pool, exercise equipment,
climbing walls, and places for many sports activities. One of the claims by Goldwater was that Gilbert, and all non-charter cities and
towns, lack the authority to create a recreational facility like Freestone. They demanded that Gilbert immediately stop the operation
of the park. They claimed that many other cities and towns may be engaging in the same type of government "abuse of power". After
correspondence between the parties, Goldwater has now backed off its demands, and will not pursue Gilbert on this issue.
The other news item was the Bisbee ordinance that dealt with issues relating to civil unions. The Arizona Attorney General initially
claimed that the ordinance passed by Bisbee exceeded its statutory and charter authority, because it allegedly attempted to regulate
areas that have been preempted by the state as a matter of statewide concern. Since the original claims, the AG and Bisbee have come
to an agreement as to how the ordinance can be written so as not to exceed the authority of a city or town.
Both of these cases involve the issue of the authority and power of cities and towns. What is the limit of the authority of cities and
towns? This question has been raised many times at some of our training sessions. Another question that is often asked at the same
time is "What is the difference between a city and a town? And how do those entities differ from a charter city?"
I will try to briefly summarize the state statutes and case law that answers these questions.
CREATION OF TOWNS AND CITIES BY THE PETITION AND ELECTION OR COUNTY BOARD
In order to determine what power and authority a city or town has, or the difference between a city and a town, we must first look
briefly at how a town or city is created. The first place to start is the Arizona Constitution. Article 13, §1 states that:
". . . the legislature . . . shall provide for the incorporation and organization of cities and towns, and for the classification
of such cities and towns in proportion to population. . ."
In carrying out the authority granted to it by the Constitution, the Arizona Legislature enacted Arizona Revised Statutes §9-101.
There the Legislature has provided for how a city or town may be incorporated.
Basically, an incorporation starts with a petition from people in a community, which is defined in the statute as an area in which
people live in proximity to each other and have common interests in things like public health, public protection, fire protection and
"where the people are acquainted and mingle in business, social, educational and recreational activities." The people, after getting
a specific number of signatures on a petition, can either have the county board of supervisors declare the incorporation as a city or
town, or the petition can trigger an election in the area sought to be incorporated, and if the people vote for incorporation, then
the city or town is created. It should be noted this is a voluntary process, and only happens if the people that live in the area want
to be incorporated as a city or town.
CHANGING FROM A TOWN TO A CITY
If the area has been incorporated as a town as described above, there is a process approved for that town to become a city. Arizona
Revised Statute § 9-271 A. states that "When a town has acquired a population of three thousand or over . . . the town may
by majority vote of the qualified electors . . . assume a city organization having and exercising all rights, powers, authority, duties and
privileges of a city . . ." Once again, going from a town to a city is a voluntary matter, and only occurs if the people living in the
town vote to become a city.
CITIES CAN BECOME A CHARTER CITY
One area of difference between a city and a town is that in order to go through a process to become a charter city, the incorporated entity
must be a city. So, for example, if the people petitioned the county board to be a town, and that petition was approved, the town cannot go
through the process to become a charter city unless they are first a city, by following the process described in ARS §9-271.
The Arizona Constitution Article 13 §2, and ARS §9-281 provides that any city that has a population of more than 3,500 inhabitants, may frame
a charter for its own government consistent with the Constitution and the laws of the state. The process for becoming a charter city is
somewhat complicated. First, a board of freeholders, which consists of 14 qualified electors of the city, must be elected at large within
the city. Once this board has been elected, they must prepare and propose a charter for the city. Then after the proposed charter is
published in a paper, an election is held, and if a majority of electors in the city approve the charter, it is then sent to the governor,
who approves the charter if it is not in conflict with the Constitution or the laws of the state.
Once a charter has been approved through this process, the charter becomes the governing law of that city. But, the caveat is that the charter
has to be consistent, and not in conflict with, the Arizona Constitution or the laws of the state. We will see later when we talk about power
and authority, how the powers established in a charter can be limited by the Constitution or the laws of the state.
I. POWER AND AUTHORITY OF CITIES AND TOWNS
So what does all of the above have to do with the power of cities and towns? Everything. The power that a municipality has depends on whether
it is a town, a city, or a charter city. It is well settled law in Arizona that the
". . . powers of a municipal corporation are those that are given it by the state. The general rule is that such a corporation, as a legislative
creation, possesses and exercises only powers granted, those necessarily or fairly implied by or incident to powers expressly granted. . ." Maricopa
County v. Maricopa County Municipal Water Conservation District No. 1 (App. Div. 1 1991) 171 Ariz. 325, 830 P.2d. 846.
After the legislature established the process by which towns and cities could be created, they went about the business of setting forth the powers
that those municipal corporations have. Most of the expressly granted powers are found in Title 9, Arizona Revised Statutes. When the courts, as
stated above, say that a city or town only has those powers that have been expressly granted, they mean those powers found primarily in Title 9.
ARS § 9-240 sets forth the general powers of a town. That section lists at least 29 separate powers. It includes such things as the power to erect,
purchase or lease buildings; to appropriate money and pay debts; to open and lay out streets; and many other specific powers. The last power listed
is kind of a catch-all, which states that the common council can:
"adopt ordinances for the government of the corporation . . . needful for the good government and order of the municipalities, and to provide the
manner of prosecution and define the punishment for the violation of such ordinance."
This general power provides the basis for many ordinances that have been adopted by cities and towns that provide for health and welfare of the people
in the municipality.
The way section §9-240 is worded, it is possible that the Legislature might have meant that the powers listed were only available to towns (not cities).
To correct that possible oversight, the Legislature passed ARS §9-499.01, which states that:
"Charter cities, and general law cities, shall be vested with all of the powers of incorporated towns, in addition to all of the powers vested in them
pursuant to their respective charters, or other laws relating to cities and towns."
ARS §9-276 lists additional powers given to cities. The list provides at least 24 powers. Most of them duplicate the powers given to towns in § 9-240.
Title 9 has several hundred sections that set forth the powers of both towns and cities. In most of the sections, the grant of power is preceded by the words,
"A city or town may . . ."
While most of the sections in Title 9 apply to both cities and towns, there are some sections that only apply to cities. When reading any section in Title 9,
it is very important to notice if the regulation applies to both cities and towns, or just cities or just towns. Because of this difference, whether an
incorporated entity is a town or a city is important in determining what power and authority they have been given.
Even though most of the authority and power of towns and cities is found in Title 9 that does not mean that there are no other statutes that govern cities and
towns. For example, Title 38, "Public Officers and Employees" contains the regulations for open meeting laws, and ethics and conflicts of interest for public
employees. Title 39 "Public Records, Printing and Notices" regulates records of public agencies like cities and towns, and the rights of the public to view
those public records. Title 42 "Taxation" deals in part with local sales taxes and the city and town budget process.
POWER OF CHARTER CITIES
The final source of power for a city occurs when, and if, a city chooses to become a charter city. In establishing the charter, the framers can establish
powers and authority, in addition to the powers that are granted elsewhere in Title 9. The only limitation on the powers that can be granted by a charter
is that they cannot be in conflict with either the state Constitution, or state laws adopted by the legislature. The charter laws should be limited to
those items of local concern that have not been addressed by the Legislature, or which are not matters of statewide concern. Most charters specify that
they have all of the powers granted by Title 9 of the statutes, and the additional powers listed in the charter. It has been said that the purpose of
allowing cities to become charter cities is:
". . . to render cities independent of state legislation as to all subjects of strictly municipal concern." City of Tucson v. Walker, (1943) 60 Ariz. 232,
985 P.2d 1025.
Charter cities may exercise all powers authorized by its charter, except for such exercises inconsistent with the state Constitution or general laws. In
Luhrs v. City of Phoenix (1938) 52 Ariz. 438, 83 P.2d 283, it was stated that a charter adopted by a city under the Constitution gives the city freedom
from interference by the legislature in matters of local concern.
Most of the powers exercised by a charter city are the same as those found in Title 9, but there is the ability to enact other regulations not expressly
granted in Title 9 so long as those regulations are strictly of a local concern, and have not been preempted by state statutes.
THE GILBERT FREESTONE RECREATION CENTER CASE
The one power that was relevant in the Gilbert park issue is found in ARS § 9-494. It states:
"A city or town may establish and maintain public parks, and acquire, hold and improve real property for that purpose."
Clearly a town, like Gilbert, has the expressly granted power to establish and maintain a park, and the power to improve the property for park purposes. The
Goldwater Institute, however, claimed that Gilbert had no authority to establish recreational facilities as part of the park, apparently arguing that a park
does not include recreational facilities. One could certainly argue that the legislature has expressly given towns the power to establish and improve property
for a park, and it is fairly implied that those improvements can include recreational facilities like the Freestone Recreation Center. That idea is further
bolstered however, by another section in Title 9. In ARS § 9-463.05 the legislature authorized municipalities, including towns, to assess a development or
impact fee for, among other things, recreational facilities. Surely if a town can assess a development fee for a recreational facility, it has the power to
create one. This is clear evidence, expressly provided in Title 9, that a town like Gilbert has the power to establish a park like the Freestone Recreation
Center.
THE BISBEE CIVIL UNION ORDINANCE
In the Bisbee case, Bisbee, a charter city, adopted a Civil Union Ordinance. The Attorney General complained, saying that the powers granted to Bisbee did
not include the power to change or modify state statutes. As an example, he claimed that the Bisbee ordinance arguably attempted to give community property
rights people engaged in a civil union in Bisbee. He asserted that state law governs issues related to community property and that the community property
statute regulating community property rights was a matter of state-wide concern. As a result, it was his opinion that Bisbee's charter power could not be
exercised to change or modify a state law. As we discussed above, that is one of the limitations on the powers that can be granted by a charter. Ultimately
everyone agreed that Bisbee could not go that far. In fact, Bisbee stated that that had not been their intent and Bisbee's ordinance is being modified to
make sure that it is not infringing on any state laws governing matters of statewide concern as opposed to those matters that are purely a local matter.
However, everyone also agreed that the part of the ordinance, such as the sections that provided for the registration of persons in a civil union was purely
a matter of local concern, not regulated by the state, and something that Bisbee had the authority to do as a charter city.
CONCLUSION
In order to determine what power or authority a town or city has, you must look primarily at Arizona Revised Statute Title 9 to see if you can find a power
that has been expressly granted. If you are a charter city, you must also look at your charter.
Sometimes the power granted is clear, and other times it is vague. Sometimes whether an ordinance topic is something of strictly local concern is very clear.
Other times, it is not clear whether something is a matter of statewide concern, or whether or not a charter city can assume power in a particular area. Because
the statutes and charters are sometimes not written as clearly as we would like, it becomes necessary to resort to the courts to answer the questions about what
a city or town can or cannot do. Hopefully, those situations are kept to a minimum.
In our next issue, we will be discussing the need for drafting regulations and ordinances with clarity so that what is meant is clear to any reader.
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League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007
Phone: 602-258-5786
Fax: 602-253-3874
http://www.azleague.org
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