Why can’t commissioners ban fireworks? The difference between county and city government

Fireworks

One of the most common requests constituents ask of commissioners is if they will consider enacting various ordinances addressing issues throughout the county.

A frequent example tends to pop up this time of year, when commissioners start fielding requests to implement an ordinance banning residents from lighting fireworks on private property in the county, like the city does.

While commissioners themselves may support the idea behind suggested ordinances, here’s the catch: Unlike municipalities, such as the City of Missoula, county government is a general powers government. This means commissioners cannot enact specific ordinances or laws unless the state has explicitly granted them the power to do so.

On the other hand, a municipality with a self-governing charter, like Missoula and most other cities in Montana, can enact ordinances as long as doing so is “not expressly prohibited by the Montana constitution, state law or its charter.”

For Missoula County to ban fireworks, the Montana Legislature would need to pass, and the governor would need to sign, a bill granting counties the authority to ban fireworks. But since it has a charter providing for self-governing powers, the City of Missoula can ban fireworks all it wants, unless the Legislature passes a bill barring municipalities from prohibiting fireworks. Of course, there are exceptions to every rule, and the county can prohibit lighting fireworks on private property when the risk of forest fires warrants it. The county also can prohibit lighting off fireworks on county property, including county parks and recreation areas.

Counties in Montana were originally established as an extension of state government, when distance and geography significantly hindered the state’s ability to conduct business effectively. Today, counties still administer many roles on behalf of the state (think vehicle titling and registration, elections, criminal prosecution, etc.). For their role in this, commissioners essentially serve as the executive branch of the state, enforcing state laws and providing the system of check and balances enshrined in our bedrock governing documents.

What can county commissioners do, then?

Per MCA 7-3-401, “all legislative, executive and administrative powers and duties of the local government not specifically reserved by law or ordinance to other elected officials reside in the commission.”

In Missoula County, this means commissioners can:

  • Approve county contracts, employee agreements and grants
  • Review, adjust and approve all department budgets to fund county priorities. The approved budget is a major factor in determining the amount of tax revenue the county will need to fund operations.
  • Vote to put citizen-driven initiatives on the ballot
  • Pass resolutions that set county priorities and direct staff efforts, such as the resolution to attain carbon neutrality in county operations by 2035. Resolutions can also address imminent threats to public safety or health, such as those declaring a state of emergency amid flooding, wildfires or other natural disasters.
  • Direct staff to develop and implement county guidance documents, such as the Jail Diversion Master Plan and the Community Wildfire Protection Plan. Commissioners also must vote to adopt these plans before they can be implemented.
  • Create and enforce zoning regulations dictating what sort of development can occur in an area
  • Create separate taxing districts to encourage development or fund public infrastructure and services in a specific area of the county. These most often occur in the form of Tax Increment Finance Districts (TIFs), Targeted Economic Development Districts (TEDDs) and Rural Special Improvement Districts (RSIDs).
  • Advise the City-County Health Board on creating and enforcing health codes that protect public health and the natural environment
  • Create and enforce subdivision regulations
  • Appoint community members to serve on advisory and governing boards

What is a constituent to do then if they see a need for a law or ordinance outside city limits? Your best bet is to take it up with your state representative and senator. They can pursue legislation in Helena granting counties the power to create and enforce a specific ordinance.

Or, you can vote in favor of a conducting a local government study, which could include consideration of a charter granting the county self-governing powers. This constitutionally mandated resolution appears on the ballot every 10 years to provide flexibility and accountability for local government in Montana. (You can read more about the last time Missoula County conducted a local government study, in the mid-2000s, in the Missoulian archives.)

If you want to go that route though, you’ll have to be patient – residents voted down the measure in 2014, and it won’t appear on the ballot again until 2024.

What other questions do you have about county government? Comment here, and we’ll answer them in future posts.

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