By ANN HINCH
Assistant Editor

DETROIT, Mich. — Many tend to believe because a county is a larger political entity than a city, its government is more powerful – after all, federal law usually trumps state law.

That is, points out John Mogk, unless it’s a power not expressly stated as federal in the U.S. Constitution or reserved to states by the same document. Mogk is an attorney and professor in property and urban development at Wayne State University Law School in Detroit.

“One of the major powers reserved to the states is the police power,” he said – meaning, the power to make laws “protecting public health, safety, morals and general welfare.”

A state legislature has authority over non-federal powers, and the U.S. Constitution does not recognize a local unit of government – such as a city or county. These local entities derive their power from what their states grant them, Mogk said.

This means there must be an express act – a law – at the state level giving a local government the power to exercise police powers beyond its own limits. In the case of cities such as Columbus, Ind., (see related article) that are able to make zoning decisions two miles beyond their incorporated borders, it is because the state legislature has decided the city’s authority trumps the county’s in which it is located, for that land – on that matter.

“It’s not something everybody out there knows,” said Mogk, adding it’s not covered in most people’s civics classes.

This kind of municipal zoning jurisdiction is not unique to Indiana, and two miles is not a universal limit, according to Mogk. But it’s what the Indiana Code allows, and it’s something at least one state legislator would like to change.
State Rep. Milo Smith (R-District 59) serves part of Bartholomew and Johnson counties south of Indianapolis. He said 12 years ago the state Code was changed and as it stands, if a city wants to designate a two-mile zoning reach beyond its city limits it has to provide city services to that area.

Next year, he plans to introduce a bill to amend the law, that such a city either has to provide services within a certain period of time or relinquish its two-mile jurisdiction – or allow those county residents to vote in city elections.
“You might as well just go ahead and annex,” Smith said.

Upon hearing Mogk’s explanation about why a city’s jurisdiction can override a county’s in some cases, Smith said, “I don’t like that. Every county has a government. Property rights are one of our fundamental rights.”

A big reason many residents in this two-mile area don’t want to be annexed, he said, is they perceive city property taxes would be higher than the county’s. But, he noted, being annexed should be of less concern now because of real property tax caps voters approved last November.

“I’d like to get rid of the two-mile jurisdiction,” he said. “I’m ready to stir this up and ask (the General Assembly) to give it one more look.”

He doesn’t know how much support he’ll have from other legislators; he’s not even straw-polled them at this point.