As discussed in the article “Florida Police Powers,” the State of Florida has the power to make laws to protect and promote the public interests. There are, however, limitations on the use of the power. The following is a very general overview of the issue (whole books are written on this). There are many, many shades of gray on each point listed, so understand this is just a “tip of the iceberg” overview.
Inherent limitations on the police power. There are basic limitations on the power itself. Regulations enacted and enforced under a local government’s police powers:
- Must advance a public interest. The laws must protect or promote the public interests, rather than protecting or promoting just the interests of individuals or groups.
- Must actually protect or promote. The provisions of the ordinance must be reasonably related to the public purpose it is supposed to be implementing. In other words, if the regulation is said to be to protect the public purpose of X, the actual provisions of the regulations must reasonably implement the protection of public interest X.
- Must be balanced. The public purpose advanced by the regulations must be of great enough public purpose to justify encroaching on private property or individual rights and the encroachment must not be unreasonably restrictive.
Constitutional limits on police power. The U.S. and Florida constitutions place significant limitations on the local governments’ exercise of police powers. The major provisions related to land development regulations include:
- Prohibition of taking private property without just compensation;
- Protection of equal rights;
- Protection of due process rights; and
- Protection of freedom of speech.
Constitutional limitations less often thought about as a limitation on local government police powers include the separation of powers clause (most often seen in issues of unlawful delegation of legislative powers) and, occasionally, the federal commerce clause.
Federal Statutory Restrictions. There are laws adopted by the U.S. Congress that specifically or effectively limit local government’s regulatory powers. Included in these are laws that put the right to regulate certain issues exclusively in the hands of the federal government (federal pre-emption) and those that place restrictions on what or how local governments can regulate issues that have federal implications.
State Statutory Restrictions. The State of Florida also can adopt laws that keep powers exclusively in the state’s hands and ones that restrict what or how the local government can regulate. The most immediately applicable example of the restriction on power is the state growth management laws, which not only require local governments to undertake comprehensive planning and land development regulation, but also dictate the specific ways this must be done. The legislature can also adopt what are known as special laws, which do not apply uniformly across the state, that may relieve or add to restrictions on the local government police power.
Common Law Restrictions. The decisions of state and federal courts also can restrict local government police powers. Not all cases are binding throughout the state and the cases often are limited to specific issues or fact patterns, but they are controlling, or certainly limiting, enough to be very important considerations in the drafting and use of land development regulations.
Local Restrictions. The local governments’ police powers are also limited by the restrictions the local governments place on themselves, through their legislative bodies or by public vote. Limitations placed in a local charter are one example. Limitations through the provisions of the adopted comprehensive plan, which are controlling, are also, extremely relevant, examples. The requirements that are in the land development regulations are, once adopted, also restrictions on the local governments’ ability to act; the provisions of the adopted code are what must be followed, with no discretion to go outside of the provisions to address issues in a different way without formal amendment.
It should be understood that all these restrictions are very fact specific in their application and local governments are generally given fairly wide latitude in determining what and how they want to regulate. Which raises a final type of restriction – self-restraint. As has been expressed in other articles, having the power to do something does not mean you should. Even if it would be legally possible to take an action, before taking that action, local governments, like everyone else, should ask if it is the best thing to do – if it works in the best way for the community, with the smallest amount of harm to the regulated individuals’ rights.