Legal Aspects Flashcards
The state cannot ordinarily be sued for which it may be guilty.
Sovereign Immunity
A corporation established by state legislature for the good of the inhabitants who live in that area. It’s invested with subordinate powers of legislation to assist in the civil government of that community.
Municipalities
- Created by charter, adopted in public referendum.
- Municipal gov’t cannot act beyond the scope off that authority.
- Doesn’t have full protection of sovereign immunity (like counties).
- Kind of like private corporation or business.
- Cities, towns, townships, villages, boroughs are all different forms of municipalities.
Municipalities
An “arm” of the state and is entitled to many state privileges (like doctrine of sovereign immunity.)
Counties
Different classes have different powers/authorities under state law and are different state to state.
Class Differentiation
A municipal corporation only has those powers which are:
•Expressly granted to it by charter or other state legislature.
•Implied or necessarily incident to the express powers
•Essential/indispensable to the declared objects/purposes of the corporation.
*Almost every power must be traceable, directly or indirectly, to some state authorizing (enabling) legislation. If it doesn’t exist, the local government probably lacks the authority to undertake the operation.
Dillon’s Rule
Under Dillion’s Rule, power that has been “set forth and declared exactly” (state law says local can enact it basically).
Expressed Power
Exercise of an expressed power. (A written law passed by a legislative body.)
Statute
Comes from powers expressly granted or essential to the operation of the powers that are expressly granted. (Implied by powers that are expressly stated.)
Implied Power
Seen as essential to the declared objects/purpose of the corporation and a subset of implied powers or inherent power of municipalities.
•Difficult to tell if it’s essential/indispensable if it’s not an express authority.
Essential and Indispensable Powers
*Building code adoption appears to be an inherent municipal power because courts ruled it is a fundamental importance to the health/welfare of a community. Doesn’t need special/express legislation permitting local to regulate construction in the area.
However, local government should first attempt to gain approval from the state before proceeding without the adoption of the local building code.
The local governmental entity has acted beyond the scope of its powers.
“The modern legal designation, in the law of corporations, of acts beyond the scope of the powers of the corporation, as defined by its charter or acts of incorporation.”
Ultra Vires Legislation
Charter is constitutionally derived from an authorization in a state’s constitution. This allows the people of the city to establish own charter
Home Rule Municipalities
Selection/development of the code is tasked to the building official but adoption is done with the municipal attorney.
Usually, state has authority over local (unless home rule)
Notice of Intent needs to be published in newspaper.
Code must be available for public reference @ Clerk’s Office.
Local Adoption of a Building Code
•Authorized to hear appeal of building official’s decision.
◦Can reverse decision if needed
•Modify provisions of the code
◦Must be careful - they can grant an appeal but can’t amend the code
•Can consider new/innovative building techniques and can permit/prohibit these techniques in its jurisdiction.
Administrative Board
Some states regulate construction rather then local governments.
State Building Codes
