Attorney General of Florida — Opinion
April 30, 2004
RE: MUNICIPALITIES — BOUNDARIES — ANNEXATION — CONTRACTION — REFERENDUM — authority of municipality to impose additional requirements for annexation of municipal boundaries; authority to call referendum on issue of contraction. ss. 171.044, 171.051, Ch. 171, Fla. Stat.
Annexation/contraction,, additional requirements
Charlie Crist Attorney General
Mr. Charles J. Cino Flagler Beach City Attorney Post Office Box 70 Flagler Beach, Florida 32136
Dear Mr. Cino:
On behalf of the Flagler Beach City Commission, you ask substantially the following questions:
1. May a municipality by city charter amend the procedures for annexing property prescribed by Chapter 171, Florida Statutes?
2. When may the city commission, on its own volition, call for a referendum on the question of contraction?
Question One
Article VIII, section 2(c), Florida Constitution, provides in pertinent part that “[m]unicipal annexation of unincorporated territory . . . and exercise of extra-territorial powers by municipalities shall be as provided by general or special law.” Thus any annexation must be effected either directly by the Legislature by special law or by a municipality in accordance with the authorization and procedures provided by a general law.[1] Section 166.021, Florida Statutes, reflects this mandate. The statute in subsection (3)(a) sets forth the home rule powers of municipalities and recognizes the authority of municipalities to enact legislation on any subject matter upon which the Legislature may act except “[t]he subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution.” (e.s.)
The provisions of general law governing municipal annexation are set forth in Chapter 171, Florida Statutes, the Municipal Annexation or Contraction Act, which was enacted “to set forth procedures for adjusting the boundaries of municipalities through annexations or contractions of corporate limits and to set forth criteria for determining when annexations or contractions may take place so as to . . . [e]stablish uniform legislative standards throughout the state for the adjustment of municipal boundaries.”[2] To accomplish this purpose, the act provides general law standards and procedures for adjusting the boundaries of Florida municipalities and acts as a preemption to the state regarding legislation in this area.[3]
The courts and this office have stated that the power to extend municipal boundaries must be exercised in strict accordance with the statutes conferring such authority. For example, in SCA Services of Florida, Inc. v. City of Tallahassee[4] the court construed sections 171.021 and 171.022, Florida Statutes, in concluding that “it is apparent that the legislature intended to provide a clearly defined and exclusive method by which an annexation could be accomplished.” (e.s.) In Attorney General Opinion 77-133 this office stated that a municipality is precluded, absent express general or special law authorization, from enacting any annexation procedures contrary to Chapter 171, Florida Statutes, regardless of whether such procedures would be less stringent or more stringent than those provided in Chapter 171. Subsequently in Attorney General 81-22 this office concluded that the municipality could annex unincorporated property only in accordance with the procedures provided in Chapter 171. Thus, this office stated that a city charter could not require an ordinance providing for the voluntary annexation of property to be submitted to a referendum on such annexation when section 171.044, Florida Statutes, providing for voluntary annexations, does not require such an approving referendum.[5]
In light of the above, I am of the opinion that a municipality may not by city charter amend the procedures for annexing property prescribed by Chapter 171, Florida Statutes. Thus, a municipality may not require an ordinance providing for a voluntary annexation to be submitted for referendum when the statute providing for voluntary annexation does not provide for such a referendum.[6]
Question Two
As discussed in Question One, Chapter 171, Florida Statutes, was enacted “to set forth procedures for adjusting the boundaries of municipalities through annexations or contractions of corporate limits and to set forth criteria for determining when annexations or contractions may take place so as to: . . . [e]stablish uniform legislative standards throughout the state for the adjustment of municipal boundaries.”[7] The act provides general law standards and procedures for adjusting the boundaries of Florida municipalities and acts as a preemption to the state of such legislation. Pursuant to the act, only those areas that do not meet the criteria for annexation set forth in section 171.043, Florida Statutes, may be proposed for exclusion by municipal governing bodies.[8]
The procedures for contracting municipal boundaries are set forth in section 171.051, Florida Statutes. Pursuant to the statute, the governing body of a municipality may propose a contraction of the city’s boundaries by ordinance and provide an effective date for the contraction.[9] A method is also established for qualified voters in the area desiring to be excluded from the municipality to initiate a petition for contraction.[10] A contraction ordinance must be published after its introduction to provide notice to interested persons. The notice must describe the area to be excluded and must appear in a newspaper of general circulation in the municipality at least once per week for two consecutive weeks. The description included in the notice must include a statement of findings to show that the area to be excluded fails to meet the criteria of section 171.043, Florida Statutes. In addition, the notice must include the time and place of the meeting at which the contraction ordinance will be considered and advise all parties affected that they may be heard.[11]
Section 171.051(4), Florida Statutes, provides certain procedures to be utilized at a meeting held for the purpose of considering a contraction ordinance. Under that section, if a petition is filed and signed by at least 15 percent of the qualified voters residing in the area proposed for contraction requesting a referendum on the question, the governing body of the city shall, upon verification of the sufficiency of the petition, and before passing such an ordinance, submit the question of contraction to a vote of the qualified voters of the area proposed for contraction. Subsection (5) of the statute provides that the governing body “may also call for a referendum on the question of contraction on its own volition and in the absence of a petition requesting a referendum.”
Section 171.051, Florida Statutes, therefore, prescribes the procedures to be utilized in contracting a municipality’s boundaries. It provides for the governing body of the municipality to directly propose an ordinance providing for contraction or to do so in response to a petition filed by 15 percent of the voters in the area desiring to be excluded. After notice of the proposed ordinance is published, the statute requires that a hearing on the proposed ordinance be held, at which time a petition may be filed by voters within the area to be contracted requesting a referendum on the issue. In the absence of such a petition being filed, the governing body of the municipality may, on its own volition, decide to call a referendum on the issue.
Thus, the statute contemplates that the governing body, after a proposed ordinance has been noticed and a hearing conducted without the affected voters petitioning for a referendum, may on its own volition hold a referendum on the issue of contraction.
Sincerely,
Charlie Crist Attorney General
CC/tjw