Validity of Ordinances

Question 1

What are the requirements for a valid ordinance?

Answer 1

1. Prior published notice to alert the residents who will be affected;
2. Majority vote of the governing body at public meeting; and
3. the ordinance is reasonably certain in application (not vague).

Question 2

Who bears the burden of proving the validity/invalidity of an ordinance?

Answer 2

The challenging party. Ordinances are presumed valid.

Question 3

What are the two means of challenging the validity of an ordinance?

Answer 3

1) In defense to a violation charge;

2) A complaint for a declaratory judgment action;

Question 4

What are the ground for invalidating an ordinance?

Answer 4

(a) it was not adopted properly; OR
(b) it is unconstitutionally vague; OR
(c) it is arbitrary or discriminatory; OR
(d) it is beyond the powers of the locality; OR (e) it is preempted by federal or state law.

Question 5

What are the grounds for state law preemption?

Answer 5

(1) if the General Assembly expressly states that local regulation is prohibited, it is.
(2) if there is no such express preemption statement, but the area is regulated by state statutes or regulations, local ordinances are invalid if they are inconsistent with state law.

NOTE: extensive state regulation is not by itself sufficient to preempt local action - there must be an inconsistency / incompatibility