COUNTIES BARKING FOR BITE OF POWER FROM CAPITOL

COUNTIES BARKING FOR BITE OF POWER FROM CAPITOL
THOMAS SPENCER News staff writer
Publication Date: July 8, 2001  Page: 01-A

The incessant barking of his neighbor's hounds sent John S. Norman of Westover on an odyssey into the heart of the Alabama Constitution of 1901.
After pleading with his neighbor, after suffering the barking morning, noon and night, Norman turned to his county commissioner for help. But he found that the county lacked authority to pass an animal-control ordinance.
He got the answer many Alabamians get when seeking solutions from county officials for problems, petty or profound: The county can't do any thing about it. You'll have to go the Legislature.
The journey to Montgomery is a familiar one for frustrated Alabamians and the local officials who serve them. The Alabama Constitution concentrates power in Montgomery, leaving the Legislature to decide many local is sues.
That applies particularly to county governments, which can't pass ordinances, zone property or set local tax rates, except in rare cases when the Legislature has permitted it. County Home rule, Page 10A 1A commissioners often find themselves unable to help constituents with the simplest of problems.
"When we have a problem, we can't react," said Shelby County Commissioner Ted Crockett, the man who wasn't able to help Norman with the barking dog problem. Plea to Montgomery This year alone, local folks came to Montgomery for permission to regulate junkyards in Henry County, control an explosion of billboards in Baldwin County and stop a quarry from going in across the street from a subdivision in Lee County.
Walker County officials had to get Montgomery's permission to give retiring deputy sheriffs a souvenir gun and badge. Shelby County asked permission to change the amount it pays poll workers, Clay County to create an expense account for the county coroner, and Randolph County to put gravel on turnarounds for school buses.
To deal with the dog next door, John Norman couldn't go to his commissioners in Columbiana. Instead, he needed the unanimous support of the Shelby County legislative delegation, composed of two representatives and one senator who live in Shelby County, plus three representatives and one senator who live in Jefferson County, one representative from Chilton County and a senator from Walker County.
Norman tried without success to get a bill passed. Three years after he started trying, the dogs have departed to parts unknown. Norman's life is more peaceful now, but he is left with the question, "Why do we have commissioners when we can't go to them to get something done?"
Among those who want a new constitution for Alabama, the issue of "home rule" is central. Constitutional reformers want power shifted away from Montgomery, giving communities more responsibility for their own affairs.
"Alabama's cities and counties must be granted home rule," says Rep. Todd Greeson, R-Ider. "Each year, the Alabama Legislature considers a number of bills which are entirely local in nature. Without question, the 1901 Constitution created this problem by attempting to micromanage the local affairs of the state." Tax, zoning fears T hose who oppose a new constitution focus on two aspects of local control they don't want to see shifted to the county level: the power to zone property and the power to tax.
Gary Palmer, president of the Alabama Policy Institute, said the power to zone denies property owners the right to use their property as they wish. And setting tax rates through the Legislature slows the process and gives the public a better chance to consider the issues, he said.
"The constitution is implemented to protect the interests of the people," he said.
Counties were set up as local arms of state government, charged with collecting taxes, conducting elections, and maintaining roads and county jails. But over time, counties have been called upon to act more like cities. They now collect garbage and run landfills, operate water and sewer systems, provide public health facilities and fire protection, and manage industrial parks and airports.
Shelby County, like many of Alabama's 67 counties, is experiencing explosive growth in unincorporated areas where county government has primary responsibility. Some of the new residents may be moving from cities to escape rules and restrictions, but many are looking for larger and more affordable homes in a country setting. The latter bring with them expectations of citylike services.
Bit by bit, counties have been given the authority to serve these needs. That process began the same year the constitution was enacted, when the Legislature empowered Jefferson County to operate a sewer system. Officials stumped O ne hundred years later, the Shelby County Commission is discussing construction of a $47 million water treatment plant and distribution system. But, at the same meeting, the commissioners were stumped when resident Kenneth Dennis asked why the county wasn't doing more to control litter and illegal dumping.
The Legislature has granted the county only limited power to control litter, and an offender can't be prosecuted unless caught in the act. Even if a bag of trash is filled with material identifying the owner, the cleanup can't be charged back to the owner.
When the county opened a public park, commissioners discovered they didn't have the authority to post an employee there. It took them more than two years to persuade the local legislative delegation to pass a bill allowing them to regulate junkyards and roadside eyesores.
"We spend day-in and day-out on these issues," said commission Chairman Lindsey Allison. "We have the knowledge to take on them on."
In an election this fall, voters in Shelby County will decide whether to give their commissioners additional home rule power. A proposed amendment to the constitution would allow the commission to function like a city, able to pass its own or dinances. However, the Shelby County amendment does not include any authority to raise taxes, something that the author of the bill, Rep. Mike Hill, R-Columbiana, regrets.
Hill understands why the County Commission, wishing to avoid the opposition it would inspire, did not request taxing authority. But if the commission itself could call a referendum on a proposed tax increase it might avert a problem like it encountered earlier this year.
A temporary countywide 1 percent sales tax was scheduled to expire, and community leaders and several county commissioners wanted to give voters the option of keeping the tax in place to pay for expansion of the rapidly growing school system, for capital expenditures on roads and bridges and the water system, and to aid rural fire and EMS service. But they had to get the Legislature to agree and pass a bill scheduling an election. Cities enact tax M eanwhile, cities in Shelby County, which have the power to set sales tax rates, enacted their own penny sales tax, effective the day after the county tax expired. The $13 million a year the county was collecting now flows into municipal coffers.
The problem with giving counties the power to tax, even if voters have the final say, is that counties don't have the processes in place to guarantee notice to the public, critics say.
Palmer, of the Alabama Policy Institute, points out that bills in the Legislature are reviewed by committees, and the public and the press are given ample opportunity to publicize and debate them. Resolutions by county commissions aren't subjected to the same scrutiny, Palmer said.
In zoning, the other home rule flash point, Shelby County presents an interesting case, a compromise position other counties might emulate. Or avoid.
Shelby is one of a handful of counties the Legislature has granted general zoning power. However, Shelby's zoning authority is limited to districts where residents have authorized it.
The effect of zoning is obvious to motorists driving east on U.S. 280 across the line into Shelby County.
"You do not have to have a sign marking it," said Jeff Pruitt, the Shelby County's director of planning.
Residents on the right side of the road voted in zoning before development began. Businesses are set back from the road, and entrances to and exits from the highway are limited. Signs are limited in size.
Residents on the other side of the highway didn't opt for zoning until after development took place. That area is a jumble of fast-food restaurants and businesses with large signs and a multitude of traffic entrances and exits.
Pruitt said the right of property owners to develop their land has to be balanced against residents' right to shape their community. The density of development on that U.S. 280 strip has created a traffic bottleneck.
"You don't use it to stop development. It's one of the tools you use to shape it," Pruitt said. Shelby's scheme of allowing zoning only where residents request it makes the idea of zoning more palatable in counties with large rural areas, but it doesn't always lead to effective community planning.
"Nobody likes regulation, and they are not going to vote on it until it is too late," he said. Resistant federation R ural residents are traditionally resistant to zoning, and in the Legislature their interests are guarded by one of the most powerful lobbies, the Alabama Farmers Federation. Federation Executive Director Mike Kilgore said zoning in some states is being used to protect farmland from rapidly encroaching development. But the federation doesn't think that would work in Alabama.
Zoning requirements can interfere with the operation of a farm. And zoning designed to preserve agriculture can cut off a family's options if they want to give up farming and sell their property to a developer.
"For New York, that is probably the right approach. For Alabama, it is not," he said.
As Alabama wrestles with the issue of shifting power to local governments, one scholar of home rule said a sense of fear surrounds home rule, a fear he thinks is misplaced.
"Home rule means only what the constitution and the laws want it to mean," said Melvin Hill, the Robert Stephens Jr. Fellow in Law and Government at the University of Georgia and one of the authors of Home Rule in America: A Fifty-State Handbook. "It is up to the states what they want do."
No state gives cities or counties sovereign control of their own affairs, Hill said. The state legislature always retains some form of oversight. And whatever system is set up, it can always be changed.
"Nothing is locked in forever," he said.
The residents of the state and their legislature can grant as much or as little power to counties and cities as they wish.
"Local government is generally in a better position to decide on local issues. It is a vital part of our democracy," Hill said.