Home Rule
Home Rule in the ‘90s: Is it Alive or
Dead?
By John E. Trafford
Former Executive Director of the League
All of us who are involved in local government
are living with home rule everyday. Yet, we rarely pause to reflect
on its dimensions — its roots, its comparative status today
versus 50 years ago, or where it is headed. That kind of introspection
is usually left to the political science professors and other
behavioral scientists. But it might be useful to reflect briefly
on the tradition to which all of us pay at least lip service,
and many of us, actual homage!
WHAT IS HOME RULE?
We all think we know what home rule is, or at
least we know it when we see it and we surely recognize any attempt
to encroach on it by the State. But let’s take a brief look
at what home rule actually is and what are the foundations on
which it rests.
It isn’t necessary here to go back in history
and explore the historical evolution of home rule. We can leave
a discussion of Dillon’s Law and the Cooley Doctrine to the
political science classrooms. But here’s a fairly concise
definition of home rule:
Power granted either by the Constitution or
Legislature or both to municipal governments to organize themselves
to carry out a range of governmental activities under their own
authority, and to preserve health, safety and general welfare.
HOME RULE FOUNDATIONS
We have reasonably strong Constitutional and
statutory foundations for home rule "on paper" here
in the Garden State. Article IV, Section VII (11) of our New Jersey
Constitution guarantees that:
"The provisions of this Constitution
and of any law concerning municipal corporations formed for local
government, or concerning counties, shall be liberally construed
in their favor. The powers of counties and such municipal corporations
shall include not only those granted in express terms but also
those of necessary or fair implication, or incident to the powers
expressly conferred, or essential thereto, and not inconsistent
with or prohibited by this Constitution or by law."
And the Home Rule Act of 1917 N.J.S.A. 40:42
et. seq. offers the following protection:
"In construing the provisions of
this subtitle, all courts shall construe the same most favorably
to municipalities, it being the intention to give all municipalities
to which this subtitle applies the fullest and most complete powers
possible over the internal affairs of such municipalities for
local self-government."
ERODING FACTORS
So, we have reasonably strong formal powers in
New Jersey. Notwithstanding this, however, both courts and Legislatures
have gradually whittled away at those foundations. The courts
have tended to limit municipal powers to those that are specifically
set forth in legislation.
Municipal and county governments are political
subdivisions, after all, and the Legislature has the authority
to pass laws mandating new service programs, imposing all sorts
of requirements relating to the broad range of municipal functions.
In point of fact, over the decades, since the
mid-1950s, there is a long list of new laws which have narrowed
or constrained municipal home rule policy prerogatives. Here are
just a few examples:
- The Uniform Construction Code has replaced all local
building and plumbing codes with a standard state code. State
construction standards apply across the State and all code officials
are licensed by the State.
- A cluster of laws require State certification for
assessors, municipal clerks, tax collectors and finance officers.
- The NJ Municipal Budget Act & Local Bond Law and Fiscal
Affairs Law passed in the 1960’s contain detailed requirements
and procedures relating to all aspects of municipal budgeting
and bonding procedures.
- The Public Meetings Act sets rules and requirements
for the conduct of municipal meetings — what can be discussed
in caucus — what can’t, etc..
- The Condominium Services Law requires municipalities
to provide garbage collection, snow removal, and lighting to
private condo associations. Yet, original approval was given
by the municipality on the grounds that associations would pay
for services themselves.
- The Fair Housing Act establishes affordable housing
quotas in every municipality in the State and sets forth detailed
procedural requirements for reaching these quotas.
- The Local Contracts Law sets forth detailed requirements
for bidding and purchasing procedures.
- The Binding Arbitration provisions in the PERC Law
require binding arbitration by an outside negotiator of police
salary contracts when local negotiations failed.
- The Local Expenditure Law puts spending caps on every
municipality.
There also have been substantial inroads in
planning and zoning prerogatives.
- The Hackensack Meadowlands District Commission Law
usurped all planning and zoning powers and put in place some
tax revenue sharing in 14 municipalities.
- The Pinelands Commission Law creates a regional planning
framework to which 52 municipalities must conform.
- Coastal Area Facilities Review Act requires over 200
communities to follow State guidelines and restrictions in their
development approval process. The Department of Environmental
Protection approves all applications for any facility.
We have also witnessed State assumption of major
responsibility and decision making for environmental protection.
The Water Supply Management Act, Water Quality Planning Act, Water
Pollution Control Act, and Flood Hazard Area Control Act, are
just a few examples.
I had a conversation not long ago with a municipal
manager which illustrates the extent of change. This manager had
begun his career here in New Jersey but left more than 20 years
ago to pursue his career in other states. He returned two decades
later and, like the awakened Rip Van Winkle, was amazed at the
changes that had taken place.
So, there is a clear, long-term trend whereby
traditional home rule policy making autonomy has been gradually
eroded. It’s not terribly noticeable from one year to the
next, but clear over the decades.
CONCERNS ABOUT HOME RULE VIABILITY
In addition to the kind of gradual, but incremental
erosion based on legislative encroachments, there also has been
growing questions raised in academic and certain public policy
forums as to whether traditional home rule is an adequate mechanism
to deal with the changing patterns of society. There have been
persistent calls for a regional approach to air pollution, water
and sewerage treatment and growth management. Implicit in these
regional proposals is the premise that municipalities cannot individually
address these area-wide problems.
Interestingly, concerns about the viability
of home rule were expressed within the League itself, as early
as 28 years ago. Mayor Louis Bay, II of Hawthorne, then League
President in his annual message in 1967 observed:
"My fellow officials, I don’t
think I am over-dramatizing when I say that the next quarter century
will be the time of decision for municipal government as an effective
institution in American society. Local government — the historical
foundation block which solidly supported the superstructure of
this great Nation — is cracking under the weight of social,
economic and technical stress unknown and unforeseen by governmental
architects of the past. By the turn of the century, this venerable
old foundation, which we love so well, will either have been remodeled
and strengthened, or condemned as unfit for human habitation,
torn down and relegated to the archives of history.
"In short, if local government, as we know
it, is not revitalized, reinforced and re-evaluated by the society
which it was created to serve, it will cease to be able to continue
to serve and will be discarded as no longer socially useful."
"I suggest, therefore, as a first step,
that we coin a new phrase — "Creative Home Rule";
— a "Creative Home Rule" which will be synonymous
with the late 20th Century and, indeed, the 21st
Century. Combining the best of yesterday with the realities of
today, "Creative Home Rule" can ride the crest of tomorrow."
That identification of "Creative Home Rule"
really marked the beginning of a new trend that gradually and
subtly has influenced municipal thinking about home rule over
the past two decades. There is growing realization that traditional,
narrow home rule independence must become more flexible and more
responsive. Municipalities must coordinate and interact in certain
areas.
A NEW ERA
There is agreement that it is necessary to strike
a balance between what is good and lasting in the idea that decisions
on policies and programs which effect a given community should
be made by local officials elected by the townspeople with realities
of the needs of the times.
There is a growing willingness among municipal
officials to join with their neighbors in a wide range of inter-local
service agreements. There is a growing recognition, similarly,
of the need to approach planning, particularly in the infrastructure
area, on a regional basis. General municipal support for the principles
behind the State Development and Redevelopment Plan is further
evidence of the recognition that municipalities have a role to
play in a broader context.
Where are we on balance? One school of thought,
of course is that, as a result of all the intrusions on local
policy making which we have mentioned, home rule is obviously
diminished.
But the other school of thought is that ironically
the increased interaction with other levels of government actually
adds to the responsibilities of municipal officials — in
terms of coordinating and carrying out the requirements. Local
government is enhanced and not diminished. Local governing bodies
and boards have far more business on their agendas now than 30
years ago. Local government has become more complex for various
reasons. Not less complex. More decisions are being made today
in the cause of home rule than ever before.
In conclusion, to answer the question "Is
home rule alive or dead in the 90s?" I would submit —
traditional parochial narrow home rule, as we knew it 50 years
ago, is, indeed, alive and viable and will serve us well in the
next century.
More decisions are being made today in the cause
of home rule than ever before. We are in a new era — one
in which intergovernmental relationships between the municipality
and the county, and other regional organizations and the State,
play a greater role which redefines but doesn’t diminish
home rule. Home town local government is alive and we.
Editor’s Note
This insightful piece was written early in
1995. In November of that year, the voters approved an Amendment
to the State’s Constitution that has served as a check on
the erosion of Home Rule. That Amendment prohibited the imposition
of most future unfunded mandates. It is impossible to overestimate
the impact of the "State Pay for State Mandates" Amendment
on State-Local Relations. And the spirit that give rise to the
Amendment has produced a series of bills designed to eliminate
or ease selected pre-existing mandates.
Despite those developments, however, we have
recently seen support grow for an epidemic of initiatives designed
to weaken local democracy. These include bills promoting home-based
businesses, airports, quarries and mines. Legislation has been
introduced which would strip local elected officials in certain
towns of the ability to make government decisions, and another
bill would permit non-residents to vote in local elections.
Therefore, the public policy pendulum may
be swinging away from "Creative Home Rule" and toward
"Destructive Constraints" on local self-government.
We are aware of the trend and we are fighting it.
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