| Date: | April 4, 2000 |
| To: | Alachua County Charter Review Commission |
| From: | Susan Wright, Charter Review Commissioner |
I submit the following proposed ballot item on the issue of prevailing ordinances relating to minimum environmental standards and pollution.
This proposal is essentially the Broward County charter section 8.04 (included below) with all references to handgun control and land use planning having been removed. This is very similar in intent to the initial draft language on this issue provided by Mr. Nickerson; the primary difference being the inclusion of the last sentence which appears in the Broward charter but did not appear in Mr. Nickerson's draft. The inclusion of this last sentence is essential, I believe, to close a loophole in which a municipality can effectively opt itself out of a county environmental ordinance by adopting its own stricter ordinance and then, for whatever reason(s), fails to enforce its own ordinance.
Background
Broward County charter section 8.04 has been tested in court and has withstood challenge. Therefore, case law exists which can be cited should our charter be challenged. Although I personally find Mr. Nickerson's initial draft language to be clearer to the average citizen and easier to understand, use of existing tested language provides benefits that also need to be weighed in.
Mr. Chris Bird of the Alachua County Environmental Protection Office has reviewed Broward section 8.04 and endorses it as a solid and feasible provision that would enable county-wide environmental protection by his office according to adopted minimum standards and that would not impair nor impede their existing ability to regulate air and water pollution.
This proposal does not prohibit exceptions. At first suggestion, this seemed to be a good idea that would serve to strengthen county environmental ordinances. However after hearing information and viewpoints from Mr. Bird and others on this idea, I now understand how such language would actually weaken the county's ability to set minimum standards for environmental protection.
This proposal does not specify intent for interpretation by the courts. It is my understanding that the county has a long standing practice of including a clause in their environmental ordinances that states the intent of loose interpretation. Including language in our charter to specify an intent of strict interpretation would weaken the existing county environmental ordinances, place existing ordinances in conflict with the charter, and impair the county's ability to set minimum environmental standards.
This proposal does not restrict county-wide environmental ordinances to addressing only "point source" pollution. Existing county environmental ordinances are not limited to point source pollution. Mr. Bird can demonstrate how the protection of air and water quality necessitates the ability to regulate pollution on a broader scale than "point source" would allow. Charter language that limits prevailing ordinances to addressing point source pollution would severely impede the county's ability to set minimum environmental standards.
From the Broward County Charter:
Section 8.04 CONFLICT OF COUNTY ORDINANCES WITH MUNICIPAL ORDINANCES
(*21)
Notwithstanding any other provisions 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, or the destruction of the resources of the County belonging to the general public. As set forth in this Charter, a County ordinance shall also prevail over a municipal ordinance in the area of land use planning. A County ordinance shall also prevail over a municipal ordinance in matters relating to Handgun Management within the parameters set forth in Section 8.19 of this Charter. 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.