Drafting of City Ordinances and Resolutions In Kansas

Transcription

1 KANSAS/IIMC CITY CLERKS AND MUNICIPAL FINANCE OFFICERS ASSOCIATION OF KANSAS MUNICIPAL CLERKS CERTIFICATION INSTITUTE November 15, 2017 Drafting of City Ordinances and Resolutions In Kansas presented by Bob Myers Newton City Manager and Senior Legal Counsel 201 East 6 th, PO Box 426 Newton KS (316) bmyers@newtonkansas.com - 1 -

2 Types of Ordinances in Kansas Charter ordinances o Art. 12, 5(c), Kansas Constitution Ordinances ( ordinary ordinances or simple ordinances ) o KSA , et seq. Revenue ordinances o KSA , et seq. Franchise ordinances o KSA The Source of Power for Cities to Take Action; Dillon s Rule vs. Constitutional Home Rule Authority Dillon s Rule [Paraphrased from Dillon, Municipal Corporations, Sec. 237 (5 th ed. 1911).] It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those powers granted in express words by the State Legislature; Second, those powers necessarily or fairly implied in or incident to the powers expressly granted by the State Legislature; and Third, those powers essential to the accomplishment of the declared objects and purposes of the municipal corporation not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the municipal corporation, and the power is denied. These principles are of transcendent importance, and lie at the foundation of the law of municipal corporations. State legislation which serves to authorize a municipality to exercise certain powers is referred to as enabling legislation. Constitutional Home Rule Dillons Rule is a rule of dependency upon State legislative authorization before a municipal corporation has any power to act. However, on July 1, 1961, the Kansas Constitution was amended by the adoption of the so-called Home Rule Amendment which appears at Article 12, 5, of the Kansas Constitution. Under this - 2 -

3 amendment, cities in Kansas are granted certain home rule powers to legislate on matters of local concern without being dependent upon enabling legislation from the State. Caveats: Many states have granted home rule powers to local governments. However, how this works can be different from state to state. In Kansas, counties also have home rule, but it can operate a bit differently than city home rule. In Kansas, the Home Rule Amendment provides that cities have the following powers: To enact local laws on subjects not addressed by state law. To enact local laws on subjects of a state law which does not apply uniformly to all cities. o See below as to the rules by which the question of whether or not uniformity exists is determined. To enact local laws on subjects of a state law which is uniformly applicable to all cities but which is not preemptory, although: o Such local laws must be consistent with and not in conflict with the state law. o Such local laws may include supplemental provisions, and may in some instances be more stringent that state laws. o A uniformly applicable state law is preemptory if it contains a clear statement of preemption (prohibiting local laws on the subject). State law may be partially preemptory (e.g., preventing local laws in certain areas, or preventing local laws from being more stringent) or may be completely preemptory (prohibiting any local laws on the subject). Examples: No preemption: state liquor laws. Partial preemption: state TNC (Uber) regulations. Total preemption: state cable television franchising. o Uniform applicability usually means a state law is uniformly applicable to every city in the state

4 However, any state law limiting or prohibiting the levying by a city of any tax, excise, fee, charge or other exaction need only be uniformly applicable as to cities of the same class. o Other exceptions where home rule power does not apply: State law regarding the incorporation of cities. State law regarding methods by which city boundaries may be altered. State law regarding the merger, consolidation or dissolution of cities. State law prescribing the limits of city indebtedness. With the exception of those areas of state law to which home rule specifically does not apply (above), the issue as to whether home rule permits local action in other areas can be addressed through the following questions: 1. Is there a state law which governs the subject? If no: Then home rule applies and the city can legislate. Local legislation would be through an ordinary ordinance. If yes, then go to the next question. 2. If there is a state law which governs the subject, is it uniformly applicable? If no: Then home rule applies and the city can legislate. Local legislation would be through a charter ordinance. Note: there is some authority suggesting it is not necessary for a city to charter out from under (or to exempt itself from) a state law which is merely permissive of a city taking certain action but which cannot be read as providing a sole means of acting on a particular subject. o Uncertain whether such action requires a charter ordinance or may be done by an ordinary ordinance. Caution would dictate use of a charter ordinance. If yes, then go to the next question. 3. Does the uniformly applicable state law contain preemptory language? If no: Then home rule applies and the city can legislate, although: - 4 -

5 o Local law may duplicate and supplement state law, but may not conflict with state law. o May it be more strict than state law? Possibly. Local legislation would be through an ordinary ordinance (unless the state law in question dictates some other procedure). If yes, then go to the next question. 4. Does the preemptory language preempt only certain aspects of local legislation or does it prohibit all local legislation on the topic? If the preemptory language preempts only certain aspects of local legislation: Then home rule applies and the city can legislation in the areas not prohibited, although: o Local law may duplicate and supplement state law, but may not conflict with state law. o May it be more strict than state law? Possibly. Local legislation would be through an ordinary ordinance (unless the state law in question dictates some other procedure). If the preemptory language preempts all local legislation on the topic: Then home rule does not apply and the city cannot legislate on the subject. What does uniformly applicable mean? An enactment is an entire bill passed by the legislature, and the division of a bill into chapters, articles or sections does not make each part a separate enactment. A set of statutes which address a common subject, although portions have been enacted at separate times, must be read together in order to determine uniform applicability. Examples: Kansas liquor control act, K.S.A , et seq. Kansas code of procedure for municipal courts, K.S.A , et seq. If an enactment is by its terms uniformly applicable, but if it serves to amend a portion of a larger existing enactment which is not uniformly applicable in its entirety, then the amending enactment is not regarded as uniformly applicable for home rule analysis purposes. A statement in an enactment that it is uniformly applicable is not controlling unless by its terms it is actually uniformly applicable

6 How do you determine if a state law is preemptive of local legislation? Because the Home Rule Amendment is to be liberally construed in favor of local autonomy, the preemption question comes into play only where there is a state law which is uniformly applicable, and the question is then whether a city can adopt identical or supplemental provisions which are not in conflict with that uniform state law, or whether cities are forbidden from legislating in this area at all. Thus the courts have held that a uniform state law is preemptive only if there is clear language in the state law so providing. Courts are sometimes urged to determine preemption by finding some legislative intent that the law be preemptive through evidence other than the specific language in the state law itself, such as by the nature of the legislation itself or some other evidence. Thus far the courts have for the most part (although not with 100% consistency) rejected this idea that legislative intent to preempt can be found outside of the specific language of the state law. Examples of clear legislative preemption: K.S.A prohibits any city, county or other political subdivision from enacting or enforcing any law, ordinance, rule or regulation in conflict with, in addition to, or supplemental to the Kansas pesticide law, and expressly invalidates any such law. K.S.A states that any person licensed as an operator or chauffeur under the drivers license act is not required to obtain any other licenses to exercise the privilege of driving upon the streets and highways from any local authority. However, cities can require licenses of taxi or bus drivers to establish character standards of operators. K.S.A provides that no city shall have power to levy and collect taxes on income from whatever source derived. K.S.A provides that no city shall impose a retailer s tax, excise tax, or tax in the nature of an excise upon sale of cigarettes or cereal malt beverages and malt extract other than a retailer s sales tax. K.S.A provides that the powers of cities to impose license or occupation taxes upon peddlers and vendors shall not be construed so as to apply to, or create the power to impose license taxes or occupation taxes upon producers and growers, or their agents or employees engaged in the sale of agriculture, farm or garden products grown within the state

7 K.S.A ,124 prohibits cities and counties from adopting any ordinance or regulation governing the purchase, transfer, ownership, storage or transportation of firearms or ammunition. o Likewise K.S.A ,134 prohibiting ordinances or regulations governing the transportation, possession, carrying, sale, transfer, purchase, licensing or use of any knife or knife making component. K.S.A ,130, et seq., prohibits cities, counties and other local governments from enacting any local laws requiring private employers to provide wages and certain other benefits at a higher level than required by state or federal law. K.S.A vests in the state the exclusive control of regulating the distribution, sale, possession, transportation and traffic in intoxicating liquor, and the manufacture of beer, but permits any city to prohibit by ordinance what is prohibited by state law as long as the minimum and maximum penalties for violation are consistent with state law. o Despite this language, a charter ordinance adopted by the City of Kansas City allowing Sunday sale of liquor (not then allowed under state law) was upheld by the Kansas Supreme Court in 2004 because there were three portions of the Kansas Liquor Control Act which were not uniformly applicable. Since it was not uniformly applicable, the state legislature did not have the power to make that Act preemptive. o However, after that decision was issued, and in 2005, the Kansas Legislature amended the Kansas Liquor Control Act to eliminate the non-uniformity. Thus, today the Kansas Liquor Control Act is deemed to be uniformly applicable and the restriction on local laws in this regard is valid. K.S.A. 75-7c17 voids any city, county or other political subdivision law or regulation on the subject of the carrying of a concealed weapon as authorized by the Personal and Family Protection Act. K.S.A vests exclusive power in the state to regulate, license or tax bingo games. How do you determine if a local law conflicts with a uniform state law? The question of whether a conflict exists is usually answered in the following way: Does the local law permit what the state law prohibits? If so, then there is a conflict

8 Does the local law prohibit that which the state law authorizes? If so, then there is a conflict What if the state law and the local law are both prohibitory, but the local law goes further than the state law in its prohibitions? There is no conflict if the local prohibition is not directly counter to provisions of the state law in that regard. Example: When the Kansas Liquor Control Act was non-uniform, the City of Atchison passed a local law that all private clubs had to close by 1:30 a.m. The state law at the time required all private clubs to be closed by 3:00 a.m. The Kansas Supreme Court held there was no conflict. By its terms the state law did not serve to authorize private clubs to stay open until 3:00 a.m., but merely said they had to be closed by 3:00 p.m. Thus the City of Atchison was free to set a stricter standard, and that did not create a conflict. Example: A City of Wichita ordinance expanded on the provisions of state DUI law by making it an offense to operate a bicycle while intoxicated. This ordinance was found not to conflict with state law. Another summary of the conflict issue states: 1. If the local law is parallel or identical to the state law, there is no conflict. 2. If the local law supplements or adds to the state law, there is no conflict. 3. If the local law provides for standards of performance that are higher than those set by state law, there is no conflict. Other restrictions on city home rule authority: A city may not prohibit an act which is subject to state or federal constitutional protection. Thus a Junction City ordinance was struck down in 1979 which prohibited any person from carrying a firearm on his person. This was regarded as a violation of federal constitutional rights under the Tenth Amendment. A city may not regulate activities as to which there is federal preemption. Thus the Attorney General in 2000 issued an opinion that city or county imposed speed restrictions on trains, or restrictions on the length of time a train may obstruct traffic, would violate the federal Railway Safety Authorization Act of 1994 by which the federal government preempted any state or local authority over the railways

9 Charter Ordinance Requirements Charter ordinances must comply with each of the following requirements: It must be titled as a Charter Ordinance. It must specifically designate the state law which it is making inapplicable to the city. o However, a charter ordinance amending a prior charter ordinance need not identify the state law which the original charter ordinance made inapplicable. It must be adopted by the affirmative votes of not less than two-thirds of the memberselect of the governing body. o For purposes of determining the number of votes needed, a directly elected Mayor is counted as a member of the governing body and does vote on charter ordinances. [Note: directly elected mayors ordinarily aren t counted for majority vote matters and don t vote unless to break ties or provide that additional vote needed for passage of a matter.] It must be published once a week for two consecutive weeks in the official city newspaper. It does not become effective until 60 days after the first publication and does not become effective even then if a protest petition is filed by the end of the 60-day period, signed by not less than 10% of the electors who voted at the last regular election. The charter ordinance becomes effective only if a majority of the voters approve its adoption in a special election on the matter. o An Attorney General s opinion (Op. Atty Gen. 103, 1994) holds that a protest petition does not require that the governing body put the ordinance to a special election, but it is void if they do not. The governing body may submit any charter ordinance to the voters for approval without a protest petition, as opposed to adopting it on their own authority and then waiting to see if a protest petition is filed. A charter ordinance may be amended or repealed only by another charter ordinance. o A charter ordinance may also be effectively repealed by the subsequent enactment of a uniform state law which conflicts with the charter ordinance is or preemptory

10 A charter ordinance may set forth substitute or additional provisions to those of the exempted state law, or it may provide that substitute or additional provisions may be adopted at a later date through an ordinary ordinance. o In the latter instance, the substitute or additional provisions adopted through an ordinary ordinance may be amended by another ordinary ordinance. Example of a charter ordinance: CHARTER ORDINANCE NO. 46 A CHARTER ORDINANCE EXEMPTING THE CITY OF NEWTON, KANSAS, FROM THE PROVISIONS OF THE KANSAS CODE OF PROCEDURE FOR MUNICIPAL COURTS, K.S.A , ET SEQ., AND PROVIDING FOR THE ADOPTION OF SUBSTITUTE PROVISIONS THEREFOR. BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF NEWTON, KANSAS: SECTION 1. By the power vested in the City of Newton, Kansas, by Article 12, Section 5, of the Constitution of the State of Kansas, said City hereby elects to exempt itself from and make inapplicable to it the provisions established under the Kansas Code of Procedure for Municipal Courts, K.S.A , et seq., such provisions being a part of enactments applicable to the City of Newton, but not applicable uniformly to all cities. The governing body may by ordinance adopt substitute and additional provisions thereto. SECTION 2. This Charter Ordinance shall be published once each week for two consecutive weeks in THE NEWTON KANSAN, the official newspaper of said City, and shall take effect and be in force from and after 60 days following its second said publication in THE NEWTON KANSAN, unless a sufficient petition for a referendum is filed and a referendum held on the ordinance as provided in Article 12, Section 5, Subsection (c)(3), of the Constitution of the State of Kansas, in which case the ordinance shall become effective if approved by the majority of the electors voting thereon. PASSED AND ADOPTED this 17th day of December, 2002, by not less than two-thirds of the members-elect voting in favor thereof. ATTEST: Mayor City Clerk

11 Ordinary Ordinance Requirements General requirements regarding passage of ordinances: Ordinances can only be considered as part of a public meeting. Ordinances may be passed at the same meeting when introduced, except where a statute provides for a different procedure. o A different procedure applies to commission cities of the first class (e.g., Wichita), where ordinances (subject to the exceptions noted below) may not be passed on the day they are introduced but, instead, they must be held over for final passage at a subsequent meeting. The consideration at a subsequent meeting is sometimes referred to as the second reading of the ordinance. Exceptions to this rule are: Appropriation ordinances; and Ordinances declared by the mayor as being an emergency ordinance (although no franchise ordinance or other ordinance conferring a special privilege may be deemed to be an emergency ordinance) An affirmative vote by a majority of all members-elect of the governing body is required to pass the ordinance. o In mayor-council cities, you do not count the mayor as one of the members-elect. o Vacancies on the council are not counted. o In mayor-council cities, if the number of votes cast by the members-elect is one short of the number needed for passage, the mayor can then vote and provide the additional needed affirmative vote. o In commission cities, all commissioners are counted, including the commissioner serving as mayor who also has the right to vote (but has no veto power). o Abstentions do not count as an affirmative vote. The mayor of a council city has the power to veto an ordinance: o Except, the mayor cannot veto: An ordinance as to which the mayor has cast the deciding vote in favor of the ordinance; or An appropriation ordinance. o If the mayor of a council city is absent from the meeting where an ordinance is approved by the members-elect, the president of the council or chairperson presiding does not have the power to sign the ordinance. Instead, the mayor has until the next regular meeting to either sign the ordinance or return the ordinance with the mayor s veto and objections. Until then, the ordinance is not deemed to have passed and cannot be published. o The simple failure of the mayor to sign an ordinance does not constitute a veto

12 o A mayor s veto can be overridden by a three-fourths majority vote of the memberselect. If the mayor of a commission city is absent from the meeting where an ordinance is approved by the members-elect, the ordinance may be signed by the vice-mayor or chairperson presiding at the meeting, or by the commissioner of finance and revenue, or by a commissioner designated by the commission to sign. If by the next regular meeting of the governing body a non-vetoed ordinance remains unsigned by the mayor (or by someone legally authorized to sign in the mayor s stead), then the ordinance is deemed to have passed without the mayor s signature. o The city clerk shall endorse on the ordinance the fact that it has taken effect without the signature of the mayor, and also endorse this fact at the end of the ordinance as it is entered in the ordinance book. The formal parts of an ordinary ordinance are: 1. The title or caption; 2. The preamble or reason for passage (the whereas clauses); [Not a required part.] 3. The ordaining clause; 4. The body of the ordinance (what is commanded to be done or not to be done); 5. The statement of the effective date; and [Not technically required.] 6. The statement of passage. As to those elements, the rules and requirements are as follows: As to the title or caption: o The subject of an ordinance must be clearly expressed in the title (K.S.A ). o This is restricted by the one subject rule that no ordinance can contain more than one subject. This requirement is not a stringent one. This same rule as applied to a similar rule for state statutes has been said to apply only when the various matters addressed in an enactment are so dissimilar and

13 address subjects that are so discordant that by no fair intendment can they be considered as having any legitimate connection with or relation to each other. Thus, for example, courts have held that an ordinance containing several different types of traffic offenses dealt with the single subject of traffic. The identification of the subject in the caption does not have to include all of the details of the ordinance provisions, but is sufficient if it is broad enough to indicate in general terms what the ordinance addresses. As to the preamble or rationale: o A recitation of the reasons, authority or necessity of the ordinance is not a required element. However: It can be useful to include a statement of the general purpose of the ordinance, or the matters which make this action necessary or advisable, or the findings which the governing body has made which support this action being taken. This can be especially helpful where the legislative history behind an ordinance can be important in defending a challenge to the ordinance. Example: with ordinances establishing regulations for sexually oriented businesses, and thus subject to First Amendment challenges, the courts will expect to see that before adopting those regulations the governing body first conducted research and studied the matter so as to make the regulations narrowly tailored to be no more restrictive than necessary to balance the general public interests with individual First Amendment rights. The matters included in the preamble typically are not included when an ordinance is codified. As to the ordaining clause: o The presence of an ordaining clause is not only required, but it is also required that these exact words are used: be it ordained by the governing body of the city of These are magic words which must be found or the ordinance is defective. As to the body of the ordinance: o The body of the ordinance is to be divided into sections. The generally accepted practice is to number each section sequentially. Any future ordinance amending of a section or sections of a prior ordinance must contain the entire section or sections as they are to read with the amendment. Even if you are amending only one subsection of a section of an ordinance, you still must reproduce the entire section and all un-amended subsections. o Generally, penalty sections, the statement of the effective date, and repealing clauses are placed in separately numbered sections of an ordinance. o Penalty provisions are necessary if the ordinance is intended to be penal in character (i.e., there are to be consequences for violating the ordinance provision) However, this may not be necessary if the ordinance is amending a portion of a chapter or article of the City Code which already contains a penalty provision applicable to that entire chapter or article

14 Also, many City Codes contain a general penalty provision which is applicable to any violation of the City Code which does not have another specifically applicable penalty provision. Is the existing penalty provision adequate, or are different penalties desired as to the specific subject of the ordinance? As to the statement of the effective date: o Ordinances are not technically required to include a statement of their effective date, but doing so is regarded as the preferred practice. o Ordinances take effect on the date of publication unless a different, later date is stated in the ordinance (cannot be earlier than the date of publication) Exception: appropriation ordinances are effective immediately upon passage. As to the statement of passage: o After the last numbered section of the ordinance, there must be a statement of passage, as follows: Passed by the (council)(commission) this day of, 20.: o This is to be followed by an approval/signature line for the Mayor, by the city clerk s attestation of the signature, and by the affixed seal of the city. Sample ordinance format: [next page]

15 ORDINANCE NO AN ORDINANCE DESIGNATING A CERTAIN STREET WITHIN THE CITY OF NEWTON, KANSAS, AS A MAIN TRAFFICWAY CONNECTION. WHEREAS, K.S.A et seq. (the "Act") provides that the governing body of any city is authorized and empowered to designate and establish, by ordinance, as a main trafficway connection, any existing or proposed street, boulevard, avenue or part thereof, within such city, the primary function of which is, or shall be, to provide adequate connections with or between any main trafficways within the city; and such designation by the governing body shall be final and conclusive; and WHEREAS, the governing body of the City of Newton, Kansas (the "City"), hereby finds and determines that a certain street within the City should be designated and established as a main trafficway connection as provided by and under the authority of the Act; THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF NEWTON, KANSAS: SECTION 1. Designation. It is hereby authorized, ordered and directed, under the authority of the Act, that the street hereinafter set forth located within the limits of the City is hereby designated or re-designated and established as a main trafficway connection: (a) East Third Street from Main Street to High Street. SECTION 2. Effective Date. This Ordinance shall take effect and be of force from and after its passage by the governing body of the City and publication in the official City newspaper. PASSED by the governing body of the City on this 9 th day of June, (SEAL) ATTEST: Mayor City Clerk

16 Incorporation by reference; using an ordinance to adopt through incorporation by reference a standard or model code or other published sets of laws or regulations: K.S.A permits a city to adopt by reference any standard or model code or ordinance, regulation having the effect of law of a state officer, board or other agency, or statute, or portions thereof on any subject on which a city may legislate, which... is available in book or pamphlet form. For an ordinance to adopt or incorporate any such published code, etc., the ordinance mush clearly: Identify the publication by name or title; The name or title of the agency, organization, group, state officer, state board or state agency which prepared it; The year or edition of the work, or other sufficiently identifying description; Any incorporated statutes must include the appropriate reference to the Session Laws, Kansas Statutes Annotated and acts supplementary or amendatory thereto; The ordinance may identify portions of the standard code, etc., which are not incorporated (i.e., are deleted and not included), and may set forth substitute, amended language as to any such portions. At least one copy of any such document must be marked or stamped official copy as incorporated by Ordinance No., and to which shall be attached a copy of the incorporating ordinance. The document so marked must be filed with the city clerk and be open to inspection and available to the public at all reasonable business hours. The police department, police judge and all administrative departments of the city charged with the enforcement of such shall be provided such number of similarly marked copies of the document, at the cost of the city, as may be deemed expedient. Future amendments to such published codes, etc., do not serve to amend the version which has been incorporated by reference, and the edition or version as originally incorporated by reference will continue into effect unless and until the city adopts by reference a newer version of the published code, etc. (and repeals the prior incorporating ordinance). Publication of ordinances: All ordinary ordinances, except appropriation ordinances are to be published once in the official city newspaper unless a statute which applies specifically to that ordinance provides for additional publications. o Appropriation ordinances are effective immediately without publication

17 The publisher is to print a line preceding the ordinance in parentheses as follows: (Published, 20 ), giving the month, day and year of publication. As to ordinary ordinances, the city has the option, rather than publishing the full text of the ordinance, to instead publish a summary of the ordinance, provided: o The publication is identified as a summary; o The publication contains notice that the complete text of the ordinance may be obtained or viewed free of charge at the office of the city clerk; o The city attorney certifies the summary is legally accurate and sufficient; and o The publication contains the city s official website where a reproduction of the ordinance is available for not less than one week following the publication of the summary in the official city newspaper. Sample ordinance summary for publication: [next page] (PUBLISHED IN THE NEWTON KANSAN ON JANUARY 31, 2015) SUMMARY OF ORDINANCE NO On January 26, 2016, the governing body of the City of Newton, Kansas, passed an ordinance entitled: AN ORDINANCE AMENDING CHAPTER 20 OF THE CODE OF THE CITY OF NEWTON, KANSAS, TO ADOPT AND INCLUDE A NEW ARTICLE 1A THERETO PERTAINING TO DOWNTOWN SIDEWALK USE REGULATIONS. By this Ordinance the City governing body amended Chapter 20 of the Newton City Code to add and include a new Article 1A thereto providing for regulations whereby certain commercial uses may be made of public sidewalks in the Central Business District of the City; requiring a permit therefor; establishing permit application procedures and fees; establishing regulations and standards by which such uses may be permitted; and establishing procedures and penalties as to any violation of these provisions. The complete text of the Ordinance may be obtained or viewed free of charge at the office of the City Clerk, City Hall, 201 E. 6th, P.O. Box 426, Newton, Kansas A reproduction of the Ordinance is available for not less than 7 days following the publication date of this Summary at This Summary is hereby certified to be legally accurate and sufficient pursuant to the laws of the State of Kansas. DATED: January 28, Robert D. Myers Newton City Attorney

18 Revenue Ordinance Requirements General requirements regarding passage of revenue ordinances (K.S.A ): This applies when a city proposes to levy for revenue purposes any tax, excise, fee, charge or other exaction other than permit fees or license fees for regulatory purposes. The Courts have held that this does not apply when the city is proceeding under authority of an enabling state law, or is proceeding under its own authority after having exempted itself by charter ordinance from a state law authorizing the same kind of tax, excise, fee, charge of other exaction as is being contemplated. A revenue ordinance to which K.S.A applies must meet the following requirements: o It must be approved by a two-thirds majority vote of the members-elect of the governing body; o It must be published once each week for two consecutive weeks in the official city newspaper; o It does not become effective until 60 days after the final publication and does not become effective even then if a protest petition is filed by the end of the 60-day period, signed by not less than 10% of the electors who voted at the last regular election. The revenue ordinance becomes effective only if a majority of the voters approve its adoption in a special election on the matter. Note: this 60-day period runs from the date of final publication, whereas the 60- day period as to charter ordinances runs from the date of first publication. o The governing body may submit any revenue ordinance to the voters for approval without a protest petition, as opposed to adopting it on their own authority and then waiting to see if a protest petition is filed

19 Franchise Ordinance Requirements These are sometimes referred to as contract franchise ordinances, because the other party has to accept and agree to the terms before the rights granted are conferred. The rules as to franchise ordinance are complex and beyond the scope of this presentation. The rules are contained in K.S.A , et seq., and deal with such issues as: For what purposes a franchise may and may not be granted. Details as to various types of franchises. What rights can and cannot be granted. Restrictions on compensation which can be required for such a franchise, and whether and under what circumstances that compensation can be changed. Restrictions on the term of a franchise. Various other provisions (such as competitive neutrality between franchisees)

20 Resolutions Distinguishing characteristics of a resolution: While ordinances typically deal with creating law of a semi-permanent nature, and constitute the law of the land while in effect, resolutions tend to address more ministerial and administrative matters. It is sometimes said that resolutions deal with matters of a special or temporary character, whereas an ordinance prescribes some permanent rule of conduct or government which is intended to remain in effect until the ordinance is amended or repealed. Resolutions may serve as a mere expression of the current opinion or mind of the governing body (e.g., a resolution voicing support or opposition to some state legislative proposals). Resolutions are often used to set policy or to define a set of procedures by which matters may be considered by the governing body. o Typically, however, the governing body is free to deviate from such policy in any particular instance if it deems such a deviation to be appropriate. Some state or federal statutes, and some state or federal grant programs or agreements, may prescribe that certain action be taken by resolution, and may also prescribe such matters as the form or content of the resolution, whether or not its adoption must be preceded by a prescribed public hearing process, timing and voting rules, and whether or not the resolution is to be published. Examples of statutes which require action by resolution (although, typically, without prescribing any particular form for such a resolution): o K.S.A (a) requires passage of a resolution when a city is considering the annexation of land. o K.S.A. 12-6a06 requires passage of a resolution for the approval of special assessments which are to finance public improvements. o K.S.A requires passage of a resolution considering the adoption of a tax increment financing (TIF) district. There is no prescribed form for a resolution (other than as may be specified in a particular statute). Most generally follow the format of an ordinance, with a title, caption, preamble (optional), body divided into sections, resolving clause (e.g., be it hereby resolved by the governing body of the city of : ), statement of effective date, statement of passage, mayor signature line and city clerk attestation. Some also affix the city seal

21 Ordinance Drafting Tips Purposes for including Whereas clauses: o To document compliance with procedural requirements. It doesn t substitute for actual compliance, but: It serves as a checklist; and It serves as a reminder to the governing body of those prior proceedings. o (Might we get sued?) To demonstrate that the action taken under the ordinance was a product of prior proceedings by which such actions were studied, options considered, etc. Example: Sexually oriented business regulations where First Amendment issues are present. o To reference the authority under which the action is being taken and the purpose for taking that action. Example: Designating main trafficways and main trafficway connectors, which is a necessary preliminary for using certain bonding authority for financing improvements to such roadways. Use the organization of an ordinance into sections as a means of organizing the various provisions. o Definitions o Breaking down regulations into separate topics or sub-topics. Use shorthand references: o The City of Newton, Kansas (the City )... o The construction of improvements to North Main Street from First Street to Tenth Street, including re-paving and the construction of curbs, storm sewers and other appurtenances (the Project )... o The plans and specifications for the renovation and upgrading of the City s wastewater treatment plant (the Plans and Specifications )... o K.S.A. 12-6a01, et seq. (the Act )... o Then similarly capitalize all such shorthand references in the balance of the text to make it clear you are referring back to that longer description. Avoid the use of overly formal, legalistic words and phrases:

22 o Don t say said Plans and Specifications. Just say the Plans and Specifications. o Don t say as contained in Section 3 heretofore set forth herein., Just say as contained in Section 3 herein or simply as contained in Section 3. Drafting definitions sections: o Are each of the terms actually elsewhere in the text? o If the term appears elsewhere in the text only once, might it be easier and more understandable to define the term at that location instead of in the definitions section? o Is this a term which actually requires a definition? o Consider capitalizing defined terms wherever they appear in the text as a means communicating to the reader that this is a defined term and they may need to refer back to the definitions section. Read (and write) a draft ordinance keeping in mind who is likely to be reading this ordinance and needing to understand it. o A stormwater treatment ordinance is going to be read primarily by engineers and others who are likely already familiar with the terminology, whereas an ordinance defining what is an inoperable vehicle which you are not being allowed to keep out in your yard needs to be understandable by an average citizen. Are you relying on enabling legislation to permit the city to do something which it cannot do under its own power? o Example: K.S.A e and 1617f regarding the abatement of nuisances and weeds includes an authorization to levy a special assessment against the subject real estate for the uncollected abatement costs Cities do not otherwise have the power to compel the county treasurer to add a special assessment onto that property s tax rolls. o Do the procedures in the ordinance comply with the procedures called for under those enabling statutes? Use section headings as a good device to assist in organizing the material for clarity and ease of use. o Example: when in Newton we adopted regulations as to group residential facilities, we divided the ordinance in these various sections: SECTION 1. Purpose. The purpose of this Ordinance is to set forth standards for the location and operation of Group Residences, as defined herein

23 SECTION 2. Definitions.... SECTION 3. Exemptions. The following shall be exempt from the regulations of this ordinance:... SECTION 4. Group Residences; Where Permitted. SECTION 5. Special Use Permit; Application. SECTION 6. Special Use Permit; Design Standards. SECTION 7. Application Review Presumptions and Factors to be Considered. SECTION 8. Administrative Approvals; Review or Consideration by Planning Commission and City Governing Body. SECTION 9. Permit Requirements; Violations; Enforcement; Revocation. Penalty provisions (fines and jail time) o Are there penalty provisions which are already applicable? Are these ordinance provisions to be part of an existing set of provisions to which there is an existing penalty section? Are these ordinance provisions to be part of your City Code, and does the City Code contain a penalty provision which, by its terms, is applicable to any violation of the City Code as to which there is not a specific penalty provision? Are the existing penalty provisions adequate? o Does the subject of the ordinance merit some more lenient or stringent penalties than those otherwise applicable? o In drafting penalty provisions, which is more appropriate? Is a fine alone adequate? Would a violation merit jail time? Really? Should there be one set penalty (a set dollar amount and/or a set term in jail)? Should you set a range of penalties and give the municipal judge some discretion to make that determination based upon the particular facts and circumstances on a case-by-case basis? Example: Conviction for a violation of this ordinance shall be punishable by a fine of up to $500, or by imprisonment of up to 30 days, or by both such a fine and imprisonment. Should you set a prescribed minimum? Example: Conviction for a violation of this ordinance shall be punishable by a fine of not less than $100 and not more than $500. Should you provide for an escalation of penalties applicable to subsequent offenses and, if so, over what period of time? Example:... provided, however, that upon a second conviction for a violation of this ordinance occurring within 5 years of a prior offense the fine shall not be less than $250 and not more than $750, and upon a third or subsequent conviction occurring within 5 years of a prior offense the fine shall be not less than $500 and not more than $1,000. As to violations where the continuation of a violating condition may cause public health or safety issues which would not be cured by the person being fined or jailed, consider making such continuation a separately prosecutable offense

24 Example: Each day that a violation of this ordinance occurs shall constitute a separate offense and shall be punishable hereunder as a separate violation. o Are civil remedies appropriate or needed? See, for example, the civil remedies for property nuisance conditions. o Is it appropriate to have both civil remedies and penalties? If both are included, consider language in the ordinance that those remedies are not mutually exclusive. Example: The remedies listed in this article are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the city manager, or the city governing body, or any authorized public officer to seek cumulative remedies. o Would the violating condition constitute a matter which may entitle the city to sue in district court for an injunction to prevent or eliminate the violation? If so, consider including language such as: Notwithstanding the other enforcement processes, procedures and penalties provided in this article, any condition caused or permitted to exist in violation of any of the provisions of this ordinance is hereby declared to be a threat to the public health, welfare and safety, and is hereby declared and deemed to be a public nuisance. Instead of or in addition to any other remedies or procedures hereunder, the city may commence a civil action to abate, enjoin or otherwise compel the cessation of any such public nuisance. o Consult with your city prosecutor on penalties being considered. Are they comparable to penalties for other comparable offenses? Does the city prosecutor see any enforcement issues with the ordinance provisions and proposed penalties? Prosecutors have prosecutorial discretion. If they deem that applicable penalties to be too onerous, they may decline to prosecute. o Dangers in using model or sample codes or ordinances: One size does not fit all. Where did you get it? How reliable is the source? Is it from another state? Have you actually read and understand the whole thing and, if so, you are still okay with it? Have you checked all of the internal cross-references? Do they make sense? Do they still fit after you have inserted your own section and subsection numbering? Are there cross references to some content outside of the model code or ordinance that may or may not be on your books or in the same place as referenced?

25 Have you checked any referenced statutes or other legal references? Do they still exist? Do they still say what they said when the model was drafted? What do you know about the success (or lack thereof), or complications encountered, by the cities who have followed that model? What demands would this model ordinance place on your existing staff, budget and other resources? Are there professional judgments required to be made in the execution of this model, and do you have sufficient expertise on staff or otherwise available to exercise that judgment in a legally defensible way. o Other tips which occurred to Bob after preparing this outline or which came up in discussion: