Validity of Ordinances

Question 1

What is an ordinance?

Answer 1

Legislative acts of local governments that have the force and effect similar to that of state statutes

Question 2

What are the requirements for a valid ordinance?

Answer 2

Three requirements:
1. Must be prior published notice worded to alert residents who will be affected
2. A majority vote of the governing body at the public meeting (also requires a quorum before voting)
3. Ordinance is reasonably certain in application (not vague)

Question 3

If a party challenges an ordinance:

Answer 3

The validity of an ordinance is presumed and the burden, at all stages of court proceedings, rests on a party challenging the ordinance

Question 4

How may an ordinance be challenged?

Answer 4

1. Positively–preemptively via a declaratory judgment
2. Negaitvely–defense when ordinance is enforced against you (can argue you didn’t violate ordinance or that it was adopted improperly)

Question 5

How may an ordinance be attacked?

Answer 5

1. Wasn’t properly adopted
2. Unconstitutionally vague
3. Arbitrary or discriminatory (no just connection to valid public purpose)
4. Beyond powers of local government
5. Preempted by federal or state law

Question 6

What grounds exist for preemption in Virginia?

Answer 6

(1) Express prohibition–General Assembly expressly states that local regulation is prohibited
(2) Inconsistent with state law

Question 7

How may a local ordinance be inconsistent with state law?

Answer 7

(1) State prohibition on activity
(2) State authorization of an activity
(3) State law is silent
(4) There is some state regulation

Question 8

What happens if a state law expressly prohibits a practice?

Answer 8

Local authorization of it would be barred (e.g., legalizing prostitution)

Question 9

What if the state law expressly authorizes an activity?

Answer 9

Local ordinances forbidding the process are preempted (i.e., void and unenforcable)
* Think state legalizing weed

Question 10

What happens if a state law is silent?

Answer 10

An ordinance may regulate and even prohibit matter upon which state law is silent if it is within the authorized powers of the locality

Question 11

What if there is existing state regulation?

Answer 11

Where state law regulates a topic, even in extensive fashion, local ordinances may also regulate the topic
* But, local law cannot be inconsistent with state law
* Example–state regulates salad bars in restaurants and says you must have “plastic sneeze bar” over salad bar, and local government says “you must clean the bar every 10 mins”–just supplemental, so OK (unless impossible to do both)