Alachua County Charter
Review Commission
21 East University Avenue
Gainesville, Florida 32601
Ladies and Gentlemen:
This letter will address the issues raised in your April 4 discussion of a proposed charter amendment providing that county ordinances establishing minimum standards for the protection of air and water would prevail over conflicting municipal ordinances.
For reference purposes, the sample language provided in our March 23 letter, which was adapted from the Orange County Charter is as follows:
No county ordinance shall be effective within a municipality if the municipality maintains an ordinance covering the same subject matter, activity or conduct as the county ordinance, provided, however, that county ordinances shall be effective within municipalities and shall prevail over municipal ordinances only when such ordinances establish minimum standards for protecting the environment by prohibiting or regulating air or water pollution, and only to the extent that such minimum standards are stricter than the applicable municipal standards.
The language proposed by Ms. Wright at your April 4 meeting, which was adapted from the Broward County Charter is as follows:
Notwithstanding any other provision of this Charter, any County ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict regardless of whether such municipal ordinance was adopted or enacted before or after the County ordinance, provided that the County ordinance shall prevail over municipal ordinances whenever the County shall set minimum standards protecting the environment by prohibiting or regulating air or water pollution. In the event a County ordinance and a municipal ordinance shall cover the same subject matter without conflict, both the municipal ordinance and the County ordinance shall be effective, each being deemed supplemental, one to the other.
As discussed at your April 4 meeting, the Broward County Charter language is less easily understood than the Orange County Charter language. However, the Broward County Charter language was addressed in City of Coconut Creek v. Broward County Board of County Commissioners, 430 So.2d 959 (Fla. 4th DCA 1983), which was discussed in our letter of February 22. Although this case specifically addressed Broward County's authority to impose procedural and substantive requirements for final plat approval (as authorized in Section 6.12 of the Broward County Charter) rather than its authority to establish set minimum standards protecting the environment by prohibiting or regulating air or water pollution (as authorized in Section 8.04 of the Broward County Charter), the court's analysis of ordinances covering the same subject matter may be of some precedential value.
As you are aware, the specific charter amendment language will not appear verbatim on the ballot. Although we have not addressed any issues related to ballot presentation, a referendum question limited to this issue may be a simple as the following example:
The Alachua County Charter shall be amended to provide that county ordinances establishing minimum standards for protecting the environment by prohibiting or regulating air or water pollution shall prevail over municipal ordinances to the extent that such minimum standards are stricter than the applicable municipal standards.
We can certainly endorse the language adapted by Ms. Wright from the Broward County Charter, which appears to satisfy each of the "6 points" discussed at your April 4 meeting with the exception of Mr. Martin's suggestion to add the phrase "for the purpose of." The following draft amendment includes Mr. Martin's addition and would replace Section 1.04 in its entirety.
Notwithstanding any other provision of this Charter, any County ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict regardless of whether such municipal ordinance was adopted or enacted before or after the County ordinance, provided that the County ordinance shall prevail over municipal ordinances whenever the County shall set minimum standards for the purpose of protecting the environment by prohibiting or regulating air or water pollution. In the event a County ordinance and a municipal ordinance shall cover the same subject matter without conflict, both the municipal ordinance and the County ordinance shall be effective, each being deemed supplemental, one to the other.
I will be present at your April 11 meeting and available to answer any additional questions that may arise. Unfortunately, I have a public hearing in Stuart at 1:30 p.m. and may be arriving a few minutes late.
Very truly yours,
George H. Nickerson, Jr.
GHN/kd