In Legal Terms
- Volume 51, Number 1 - 2007
Supreme Court issues important ruling on county's governmental authority.
In May of 2006, Dallas County began construction of a communications tower on the premises of the Dallas County courthouse to better serve the needs of the Dallas County Emergency Management Department.
Almost immediately, the city of Selma filed an action in the Dallas County Circuit Court seeking to enjoin the construction of this tower on the grounds that it violated two city ordinances, one relating to historic properties or districts and one relating to siting of wireless communications facilities. 1
The Dallas County Commission challenged this lawsuit on several important grounds, most notably that the zoning ordinances of the city did not apply to the operation of government functions by a governing body, and that there was no violation of Section 220 because the installation of the communications tower was not the construction or operation of a public utility or private enterprise.
The Circuit Court agreed with the county, and ruled that the ordinances were not enforceable against the county. The city of Selma appealed to the Supreme Court of Alabama, and on March 9, 2007, the Supreme Court affirmed the ruling of the Circuit Court and the position of the county. See, City of Selma v. Dallas County, [2007 Ala. LEXIS 42, March 9, 2007]. This ruling is a strong victory for all counties in Alabama and reaffirms the long-standing principle of law in this state providing that a governmental entity is not subject to the ordinances of another (or the same) entity when performing or providing for the performance of governmental functions. Dallas County should be applauded for its efforts in this case and its determination to protect and uphold this important rule of law.
In its decision in this case, the Supreme Court cited and discussed a long line of cases in which the appellate courts of this state (and the federal courts) have held that municipal ordinances do not apply to the operation of a governmental function by a governing body.
Interestingly, most of the cases cited in this opinion dealt with cases where it was determined that some branch of municipal government was not subject to its own municipal ordinances. The city of Selma (with the Alabama League of Municipalities appearing as amicus curiae) argued that this principle had been somewhat abolished in a case dealing with governmental immunity in a tort action. As such, a different ruling by the Supreme Court would arguably have adversely affected municipal governments in the same manner as it would have harmed counties.
It is important to understand that the immunity from municipal zoning ordinances granted to a governmental body applies only with regard to the operation of a governmental function. Proprietary functions or activities of a governmental entity or any of its agencies or subdivisions are not exempt from compliances with such regulation. It is, therefore, important to understand the distinction between a governmental and proprietary function.
In Lane v. Zoning Bd. Of Talladega, 669 So.2d 958, 959-960 (Ala.Civ.App. 1995), a frequently cited case on this issue, the Alabama Court of Civil Appeals explained that a “function is a governmental function if it is the means by which the governing entity exercises the sovereign power for the benefit of all citizens.”
Governmental functions are those done by authority of law, rather than for profit – they are functions under the entity’s police power to promote the health and well-being of the people. Clearly, a viable and efficient communications tower for the county’s emergency management operations falls within this category.
Proprietary functions are generally commercial transactions involving the purchase or sale of goods and services and other activities for the commercial benefit of a particular government agency. In other words, when a governmental entity is engaged in a “business activity”, such as the operation of a sewage-disposal plant or supplying of water service, it is performing a proprietary function and must comply with municipal ordinances.
However, when the entity is performing functions essential to its governmental duties, those functions are governmental and the body is not subject to zoning ordinances adopted by a municipality.
Some examples of governmental functions found exempt from zoning ordinances by the state and federal courts are: the location of a new school building; the activities of a fire department; the operation of a sanitary landfill; and the construction or operation of a county jail.
Now, in this case, the Supreme Court has made clear that communicating with emergency service providers by governmental bodies is a governmental function, and the construction of a new communications tower on existing county-owned property for this purpose is exempt from municipal zoning ordinances which would interfere with the functions of the county governing body by prohibiting or restricting such construction. 2
It is important that counties strive to work cooperatively with other branches of government to best serve the needs of all citizens of this state. However, it is also important that counties not be thwarted in their efforts to serve the citizens of the county in the way determined best by the county commission and its agencies.
It is unfortunate that the construction of the communication tower on the grounds of the Dallas County Courthouse led to this litigation initiated by the city of Selma.
However, this opinion of the Supreme Court strongly reaffirms this important long-standing principle of law, and will hopefully limit the need for further litigation between governing bodies on issues related to the interference of performing governmental functions.
The city of Selma also alleged that the construction of the tower violated Section 220 of Alabama’s Constitution, which provides that no person or corporation may construct or operate a public utility or private enterprise without consent of the proper authorities of the city; however, it was easily determined by the Court that this case did not involve a public utility and had no application.
In reaching its decision, the Court included a detailed discussion of the importance of providing proper and effective emergency services under both state and federal law related to homeland security, and found that this only furthered the importance of the county having ability to construct proper communications equipment without interference.
1 The city of Selma also alleged that the construction of the tower violated Section 220 of Alabama’s Constitution, which provides that no person or corporation may construct or operate a public utility or private enterprise without consent of the proper authorities of the city; however, it was easily determined by the Court that this case did not involve a public utility and had no application.
2 In reaching its decision, the Court included a detailed discussion of the importance of providing proper and effective emergency services under both state and federal law related to homeland security, and found that this only furthered the importance of the county having ability to construct proper communications equipment without interference.
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