validity of ordinances

Question 1

what is an ordinance

Answer 1

legislative act of the locality

Question 2

violation of ordinance is usually what

Answer 2

misdemeanor

Question 3

three requirements for valid ordinance

Answer 3

(1) prior published notice worded to alert the residents who will be affected

(2) majority vote of the governing body at public meeting

(3) reasonably certain in application (not vague)

*ordinances are presumptively valid = burden is on challenger

Question 4

how to challenge the validity of an ordinance

methods

standing

grounds

Answer 4

METHODS
– as a defense to a violation charge
– complaint for a declaratory jdugment

STANDING
– P has a real interest [directly affected]
– dispute is ripe

GROUNDS FOR INVALIDATING
An ordinance will be invalidated if:
(1) not adopted properly
(2) unconstitutionally vague
(3) arbitrary or discriminatory
(4) beyond powers of locality
(5) preempted by federal or state law

Question 5

grounds for preemption
[which means state statute precludes operation of local law]

Answer 5

(1) express preemption
GA expressly states that local regulation is prohibited

(2) implied preemption due to ordinance being inconsistent with state law

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2 basic inconsistency situations:

(a) state prohibition of the activity conflicts with local authorization

(b) state authorization of the activity conflicts with local prohibition

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NO PREEMPTION
(1) state law is silent
ordinance may regulate and even prohibit matter if it is within authorized power of the locality

(2) there is some state regulation
local ordinances may regulate a topic on which state law regulates so long as not inconsistent [i.e. must be possible to comply with both]