407 West State Street, Trenton, NJ 08618  (609)695-3481
 NJLM logo 

William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

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.

 

NJLM - Home Rule

407 West State Street, Trenton, NJ 08618  (609)695-3481
 NJLM logo 

William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

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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