Are localities exempt from their own regulations?

[DJohn3]

For a long time I have operated under the belief that a local government is not bound by its own regulations. Ideally, projects of the local government would comply with adopted zoning regs, however, they were not required to comply. When I mentioned this to some of my colleagues they looked at me as if I had 3 heads, whereas, 2 other colleagues agreed with me. Following up, I posed the question to one of the assistant county attorneys who told me she'd never heard of such a provision; however, of course the state and federal agencies were not bound by local laws, but the county uses were.

Am I nuts? Has anyone else heard of this concept? Any thoughts would be appreciated!

 

[Linden Smith]

Soverign immunity (sometimes called a soverign's impunity) is a tennant of the law that says that the lawmakers are not bound by their own laws. Basically it operates so that the government is not put in the position of trying to regulate itself.

That means that the government does not go through a zone change to locate the local jail. However it does not extend to contractors of the government, so that the jail does get building permits and inspections, as your insurance company would want. I once had a case in which the state located a boys reformatory out in the country. The county was not happy, but could not stop it, we could however regulate it for setbacks and screening, since this was a special provision of our state planning enabling legislation.

Most places still observe the regs though, since they usually make good sense, they just don't go through the same process.

This applies to all levels of government, federal, state, and local. Some regs, outside of zoning laws are different, such as environmental regulations.

 

[mike gurnee]

I agree with Linden...but then I moved to Kansas. In KY the P&Z statutes clearly state the sovereign immunity at KRS 100.363 (did I remember the cite, Linden?) In KS we have some wierd wording. No local gov't can impose building codes, permits, or fees on the state. However, there is a last sentence:

"State...projects shall be exempt from the payment of fees relating to local zoning ordinances, but the state shall reimburse a political subdivision for any related publication expenses incurred by the political subdivision."

I have not found any case law that interprets this. The prevailing thought is that the state shall comply with zoning regulations. And out here cities and counties comply with their own codes, perhaps out of custom rather than law.

 

[Linden Smith]

KRS 100.361, close enough for government work. It is a pretty confusing section of the law, and there will be many contradicting sections in any state.

 

[Lee Nellis]

Sovereign immunity, like so many other venerable legal concepts, fails to reflect the reality of a democratic society where everyone is, appropriately so I might add, open to scrutiny. So even if it is lawful to evade your own rules, it is an excellent way to tank whatever credibility your local process might have.

 

[Otis]

I can't help myself. Sovereign immunity is a doctrine of law that precludes bringing suit against the government without its consent. Usually it is interpreted to relate to torts -- negligence, civil rights violations, etc. Most states have laws waiving sovereign immunity at both the state and local levels. That said, in some instances the government has exempted itself from compliance with its own laws. Congress and equal employment opportunity, for example. Usually there is a specific statutory provision to this effect. I always (OK, except on signs, but our ordinance exempts municipal signs) make the government comply with our zoning laws because if we don't, how can we ask the citizens to do it? It caused a problem when the architect for the new high school ignored our height limits, but we sent them back to the drawing board anyway. It's just fundamental fairness. After all, its a government of the people...

 

[Sheryl Stolzenberg]

I can't see any valid reason for a local government exempting itself from its own rules. I've worked for many that have tried, but ultimately, they go through a variance procedure in a public hearing if they can't meet the parking requirements, for example. It is impossible to require the private sector to abide by rules that the public sector itself flouts. If there is a concern that a "lulu" will be denied a rezoning in a controversial public hearing, the zoning code should be revised to allow public purpose uses in multiple zones as permitted or conditional uses.

 

[mike gurnee]

A city developed a recreation facility outside the corporate limits. Annexation was considered, but the costs due to zoning (paving and landscaping) were too much. What message does this give the private development community? Are the regulations perhaps really overly restrictive? This example is similar to a government that tries to exempt itself from its own regs.