Home Rule - "I don't think that means what you think it means."

Zion IL, City Hall. Author's Photo

The Magic Number - 25,000

After attending a number of City Council meetings, doing my research on how local government functions, and speaking with a number of people, I began to notice a couple of recurring themes.

First, an almost reflexive negative response on the part of Council members to any kind of regulatory change or ordinance amendment that might result in a very minor cost to homeowners or businesses.  Being good stewards of the public's funds is admirable, but in comparison to the millions of dollars that were doled out to patch the city budget, or to pay for the Fielder's fiasco, the adage "penny wise and pound foolish"  is totally appropriate when looking at the performance of past city councils (see my previous blog post "One Time Dollars" ).  In my opinion, this almost overt aversion to raising fees or taxes, for any reason, has placed the City government into a trap of it's own creation. Even after a number of measures taken to cut costs and services, operational costs have continued to rise, and by not raising the tax levy for a number of years, and expending all of the cash reserves to cover the gaps, the city is now behind the curve and facing a deficit of $1.6 million dollars in the next fiscal year. In their unwillingness to face the ire of taxpayers over what would be a minor increase a few years ago, they kicked the can down the road until it grew into the problem we face today. Balanced budgets require a realistic view of revenues and expenses, ignoring one in favor of the other will result in disaster.  The current impasse in Springfield is exhibit A of this truth, and Zion has placed itself in a similar bind.

Second, is what I refer to as the "our hands are tied" response when confronted by citizens upset over these changes, when there is a cost involved, or just as often when no action is taken over an issue of concern.  Nuisance ordinances, and rental property licensing were two topics that often received the "we really can't do anything, our hands are tied" response for years. Immediately followed by "If we had Home Rule, then maybe we could do something about it, but we haven't hit that 25,000 population mark, so we really can't do much." An answer which ignored the fact that home rule can be obtained by referendum, and that there are alternative avenues available to governments to deal with those issues without home rule powers.

Invoking the magic effect of Home Rule is a bit of a dodge, it's another way of deflecting criticism and justifying continued inaction on the part of government. In and of itself, Home Rule does offer another set of tools for municipalities and counties, but it is not a free pass for those governing bodies to do whatever they want in every case.

Under the Illinois Constitution, Article VII, Section 6 (a) " A County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. Other municipalities may elect by referendum to become home rule units. Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

Now, the interpretation of home rule powers is fairly liberal, except in any area where the State has already determined a legislative interest, or where there is a broader interest involved.  That is why in cases of Home Rule, the actions almost always are related to local taxes. Primarily alternate revenue taxes; Municipal Retailers and Service Occupation Taxes, Hotel/Motel Tax (home rule lifts the tourism promotion restriction and allows other uses for the funds), Gasoline Tax, Use Tax, Cigarette Taxes, and the ability to raise Property Taxes beyond the State imposed 5% cap, or to impose limits on the governing body to raise those taxes.

Another area where home rule is often used is in rental property regulation, and this takes us back to the "our hands are tied" theme that was often invoked.  When I was researching for my first campaign, one of the things I learned was that a Rental Property inspection and certification program was a recommendation in the city development plan that was passed in 1992. By state law an inspection program was restricted for non-home rule communities, in that the fees could not exceed the administrative costs, otherwise it would be considered a revenue generating tax, which is not allowed for under non-home rule.  In bringing up this proposal during the campaign, I would often get the "don't we need home rule to do that?" in response.

In the intervening decades the unwillingness of City government to deal with the issue of residential rental properties, unless we happened to hit that magic number of 25,000, set the stage for our current housing crises. Today, in the wake of the 2008 economic disaster, and the collapse of the housing market, Zion now has a rental to ownership ratio of 60% to 40%, which is not a healthy situation for any community.  Circumstances have finally brought the City Council around to acting on the problem by implementing a certification program starting this year.  Unfortunately, the legacy of decades of avoidance have come back to haunt them, because now the costs of implementing and administering the program is much greater than it would have been if it had been adopted when first recommended.  So, instead of an inspection program that is just part of the duties of the regular Building and Zoning department, with a moderate fee, what is being proposed is a high fee per unit ($100) that is necessary to pay for the additional staff to carry out the program now.

This is the price of avoidance, in the short term I don't doubt that doing so helped some people get re-elected a number of times, but the long term damage to the City may not be known for years.

Water Sense - a broader interest

 The incident that prompted my writing this article occurred at a recent City Council meeting during a discussion of amendments to the municipal code regarding water use conservation.  These amendments were required under the directive of the Illinois Department of Natural Resources, the agency that holds the responsibility of administrating the allocation of Lake Michigan Water to Illinois communities.  The legal basis of which is:

The a U.S. Supreme Court Decree [Wisconsin v. Illinois, 49 U.S. 48 (1980) that limits Illinois' diversion of Lake Michigan water also contains language directing Illinois to implement a water conservation program. The Level of Lake Michigan Act [615 ILCS 50] incorporates the Decree language which states that:

"all feasible means reasonably available to the State and municipalities, political subdivisions, agencies and instrumentalities shall be employed to conserve and manage the water resources of the region and the use of water therin in accordance with the best modern scientific knowledge and engineering practice." [615 ILCS 50/5]  

This is the operative judicial and statutory language that directs the Illinois Department of Natural Resources (Department) to develop and implement a water management and conservation program covering all  permittees of Lake Michigan water.

- Water Conservation and Efficiency Program Review Illinois' Fifth Report to the Compact Council and Regional Body, December 8, 2014

Water conservation of the Lake Michigan watershed isn't a small matter, water service over the long term to a growing population is a matter of the broadest interest.

In its mandate to carry out conservation measures as noted above the IDNR had set out new requirements regarding unaccounted water losses, lawn watering, and the use of Water Sense approved fixtures in new and replacement plumbing.

Water Sense fixtures are certified to save consumers up to 20% of their water costs over the lifetime of the equipment. It's similar to an EnergyStar rating on electronics. In the long term their use will be a benefit to the consumer, and to the environment.  Saving money and water are generally good things, I think most people would agree with that.

At that meeting, when the requirement for Water Sense fixtures was brought up, the specter of avoidance and the invocation of Home Rule raised their heads in a single exchange.

Commissioner McDowell (Public Safety) queried Director Ianson, of the Building and Zoning Department on how much the use of Water Sense fixtures will add to the cost of new construction, or repairs. (avoiding possible short-term pain in lieu of long-term benefits)

Director Ianson, replied that he did not know.

Commissioner McDowell then asked if Zion had Home Rule, would they be able to get out of following these directives?

I knew the answer before it left Ianson's lips. No. In this case Home Rule cannot trump State regulations, and I have to say, I was somewhat surprised that the Commissioner would even suggest using Home Rule in such a manner.

Home Rule has it's uses, if it implemented properly by a government that understands it's limitations.  Whether home rule is achieved by population or by referendum, lets hope that the City of Zion will exercise the wisdom and judgement necessary to use it successfully.

I highly recommend the work of James A. Banovetz on Home Rule issues in Illinois. In particular: Illinois Home Rule: A Case Study in Fiscal Responsibility, JRAP 32:31 (2002).