The assault on local home rule
(Editor’s note: After this commentary was submitted for publication Gov. Ron DeSantis vetoed HB 771, the bill that would have placed a moratorium on local regulation of plastic straws until 2024. The veto message read in part “These measures have not, as far as I can tell, frustrated any state policy or harmed the state’s interests.”)
Thomas Jefferson said, “The government closest to the people serves the people best.” That simple observation underpins the concept of “home rule” – the right of cities to establish their own forms of government through charters, and to enact laws and regulations providing for the well-being of their citizens.
Florida is one of many states recognizing local home rule. Article VIII, Section 2(b) of the Florida Constitution provides, “Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise power for municipal purposes except as otherwise provided by law.”
HOME RULE FOR SANIBEL
Prior to the first causeway’s construction, in 1963, Sanibel was sparsely populated and part of unincorporated Lee County. With the completion of the causeway, investors identified the island as ripe for development. Without local governmental powers, Sanibel was defenseless against these developers grandiose plans that were likewise embraced by the Lee County Board of County Commissioners.
Sanibel’s founders realized that Sanibel could survive as a sanctuary island only through home rule, which required incorporation. After a hard-fought campaign and some effective lobbying in Tallahassee, Sanibel became a city, in 1974. Section 1.01 of the Sanibel Charter reads in part: “The city known as ‘Sanibel’ shall have all powers possible for a city to have under the Constitution and laws of the state as though they were specifically enumerated in this Charter and unless prohibited by or contrary to the provisions of this Charter.”
Despite its tumultuous relationship with the BOCC prior to incorporation, and some acrimonious disagreements thereafter over the construction of the new causeway, Sanibel’s relationship with the BOCC thereafter has been a good one.
STATE PREEMPTION TRUMPS HOME RULE
Interference with home rule has come from the state legislature. The Florida League of Cities – the home-rule lobbying arm of Florida city governments – identified and opposed at least nine bills during the most recent legislative session, because they would undermine home rule. Challenges to laws that undermine home rule are fought on an uneven playing field. The constitutional provision establishing home rule in Florida, by granting cities broad powers, ends with, “… except as otherwise provided by law,” a phrase that paves the way for preemptive state legislation, thus the fox is in the hen house of home rule.
Legislators acting in good faith would invoke preemption only for a clearly overriding state interest. This interest too often plays out in practice as nothing more than a concession to business interests that prefer uniformity rather than having to confront a multitude of local laws. In a state as large and geographically diverse as Florida, “one size fits all” doesn’t work.
A case in point. When the Sanibel City Council determined several years ago that excessive use of fertilizer on the island was causing harmful algae blooms, it devised a plan to restrict fertilizer use. One of the largest commercial fertilizer manufacturers sent lobbyists to Sanibel to argue against the ordinance. They were obviously concerned that Sanibel’s action would start a trend among other cities plagued by algae. City council stuck to its guns, and the ordinance passed unanimously.
The manufacturer then sought a sponsor in Tallahassee to propose uniform state legislation that would protect its business – and without regard for the resulting algal-fouling of Sanibel’s surface waters. That preemptive legislation failed, because Sanibel fought back with its own effective lobbying. It argued that Florida is a big, diverse state with different soil and water conditions. Fertilizer working well for Lakeland or Ocala may trigger unwanted algae blooms in coastal cities. Although fertilizer preemption bills recur periodically, they haven’t passed, because Sanibel – and now other cities – resist. Sanibel’s ordinance has since become a model for other cities plagued with algae.
Stopping efforts to preempt Sanibel’s fertilizer regulations has been a notable success story. Too often though the reverse is true. Recently Sanibel’s City Council, along with several other Florida cities, banned plastic straws, a non-essential contributor to the glut of single use plastic convenience items fouling our beaches and waters. Although preemptive state law already bars local governments from banning plastic bags and certain containers, that state law didn’t extend to straws. Almost before the ink had dried on Sanibel’s ordinance, Tallahassee passed legislation imposing a five-year moratorium that prevents local governments from passing or enforcing laws prohibiting plastic straws, purported so the issue could be studied. Do we really need to study the effects of plastic straws for five years, to learn that they pollute our beaches and waters?
Another assault on home rule that recurs each year – which passed the Florida House this year, but not the Senate – is a law that would entirely preempt short-term rental regulation. In 2011, Florida passed a law that bars local governments from regulating the duration or frequency of “short-term rentals.” That 2011 law grandfathered (exempted) about 75 cities, including Sanibel, with such laws already in place. Dissatisfied with this outcome, lobbyists for the big rental websites supported legislation once again this year that would have nullified that exemption.
Although restrictions on duration and frequency of rentals is a perfectly reasonable means to protect the essential character of residential neighborhoods, supporters of preemption claim a superior right of owners to rent their properties without limitation. Adoption of such an expansive view of property rights could cast doubt on the legitimacy of virtually any zoning action. Where does one draw the line?
Had the short term rental bill passed in the Senate as well as the House, it would have prevented Sanibel from enforcing its requirement for a minimum 28-day occupancy for home rentals beyond the Resort Housing District – thereby opening all residential neighborhoods to resort occupancy, with all the attendant noise and disruption. For reasons that are unclear, the Senate bill, SB 824, died in committee but the companion House bill HB 987 passed. With strong support from companies like AirBnB and HomeAway, those bills will surely be reintroduced next year and have a good chance of passage unless a sea change occurs in Tallahassee – which seems unlikely.
CANDIDATES SHOULD EMBRACE HOME RULE
As voters, we can curtail the assault on home rule. We can make respect for home rule a key qualification for anyone seeking election to the state legislature. Those who represent us in Tallahassee must enthusiastically embrace Jefferson’s observation that “the government closest to the people serves the people best.”
Larry Schopp is chair of the Committee of the Islands’ Land Use Planning Committee. COTI invites the community’s input on this and other issues affecting Sanibel at firstname.lastname@example.org. To read past commentaries on island issues, visit www.coti.org or www.facebook.com/committeeoftheislands.