Dillon Rule

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The State of Virginia uses the Dillon Rule (also referred to as “Dillon’s Rule”) when interpreting law any time there is a question whether a local government has a certain power. Dillon's Rule grants powers to localities very narrowly: if there is any legal question about a city/county's power or authority, the local government does not have the power in question.

States that do not follow the Dillon Rule are sometimes referred to as “home rule” states, in which localities are determined to have the inherent authority to exercise powers that promote the public health, safety or welfare, even if they are not expressly enabled. [1]

Introduction

A locality’s governing body has only those powers expressly granted [by statute or charter] by the General Assembly, powers necessarily or fairly implied from the express powers, and powers that are essential and indispensable.[2] The principle, known as the Dillon Rule (also referred to as “Dillon’s Rule”), is a rule of strict construction – if there is a reasonable doubt whether the legislative power exists, the doubt must be resolved against the local governing body. [3]

The Dillon Rule and Its Limitations on a Locality’s Land Use Powers is the title of Chapter 5 of Albemarle County's "The Land Use Law Handbook" [4] This article includes selective excerpts from that publication.

Who was Dillon and where did his rule come from?

John Forrest Dillon was the chief justice of the Iowa Supreme Court in the mid-1800’s. The rule itself is the result of Dillon’s distrust of city government. By the 1860s, cities had become not only inefficient, but corrupt. Graft, in the form of kickbacks, was rampant for many public works and public utility projects, including the railroads. It was the era of “Boss Tweed” and the Tammany Hall gang who reportedly swindled between $75 and $200 million from New York City between 1861 and 1875.[5]

Understandably, Dillon did not trust local government and wrote in his book, "Commentaries on the Law of Municipal Corporations," (1911)[6], the usefulness of our municipal corporation has been impaired by evils that are either inherent in them or that have generally accompanied their workings. Some of these may be briefly indicated:

  1. Men the best fitted by their intelligence, business experience, capacity, and moral character, for local governors or counselors are not always, it is feared, - it might be added are not generally, - chosen. This is especially true of populous cities.
  2. Those chosen are too apt to merge their individual conscience in their corporate capacity. Under the shield of their corporate character, men but too often do acts which they would never do as individuals. The public, as if to retaliate, acts towards corporations in the same spirit. The notion, though not avowed, is quite too much acted upon, that all that can be obtained from a public, or, indeed, from any corporation, is legitimate spoil. Against these, men, usually honest and fair in their dealings, do not scruple to make demands which they would never make against an individual.”
  3. As a result, the administration of the affairs of our municipal corporations is too often unwise and extravagant.

The Application of Dillon’s Rule in Virginia

  • Judge Dillon’s 19th Century treatise lives today in contemporary Virginia jurisprudence.
  • First followed in City of Winchester v. Redmond (1896) holding that no city authority existed for a city council to give rewards leading to the conviction of arsonists.
  • A court-­‐made rule of law in Virginia.
  • A non-­‐constitutional, non-­‐statutory rule for interpreting local government authority.
  • An attempt to reverse Dillon’s Rule for cities and certain counties by constitutional amendment failed in 1970. [7]

The Dillon Rule, which the Virginia Supreme Court adopted in 1896, is a legal principle that local governments have limited authority, and can pass ordinances only in areas where the Virginia [[[General Assembly]]] (which meets in the state capitol in Richmond) has granted clear authority.[8] The state legislature has defined in state law which authorities have been delegated from the state government to all jurisdictions of a particular category. For example, town and city councils have been granted the right to implement a meals tax, but elected supervisors in a county may implement the tax only if local residents vote for approval in a referendum on that issue.

In relation to managing sprawl, the study argued that the Dillon rule neither promoted nor hindered regulation of growth and that Dillon’s nemesis -- home rule -- could even thwart regional cooperation. [9][10].

Contemporary Application of Dillon’s Rule in Virginia

  • Strong affirmation of support for the doctrine in Virginia Supreme Court cases.
  • Commonwealth v. County of Arlington (1977) is key case setting forth strong adherence in Virginia law.
  • Many cases have since applied Dillon’s Rule in response to challenges to local government actions.

While Virginia is considered one of the stricter Dillon rule states, a recent study by the Brookings Institution found that 39 states actually use some form of the rule to define the power of local governments. Of those 39 states, 31 apply the rule to all municipalities and eight (such as California, Illinois, and Tennessee) appear to use the rule for only certain municipalities. Ten (10) states do not adhere to the Dillon Rule at all. And yet, Dillon’s Rule and home rule states are not polar opposites. No state reserves all power to itself, and none devolves all of its authority to localities. Virtually every local government possesses some degree of local autonomy and every state legislature retains some degree of control over local governments.[11]

Recent Dillon’s Rule Jurisprudence & Local Government Authority

  • Dillon’s Rule challenges to Local Government action are common and seven cases have reached the Virginia Supreme Court in the last five years.
  • Approximately half of recent [2013] Dillon’s Rule challenges have been successful in rejecting local government assertions of authority.

Virginia is one of a limited number of states that follow the Dillon Rule and the rule continues to stir debate. Some complain that the rule continues to bind the ability of Virginia’s localities to respond to the priority needs of their localities and regions. The Dillon Rule limits a local governing body’s ability to address local issues using local strategies exercised under its police power. As a result, a locality’s ability to address local issues is at the mercy of the General Assembly unless a means to address the issue has already been enabled. A locality’s governing body does not have broad general authority to adopt whatever ordinance it deems appropriate or desirable. [12] On the other hand, the Dillon Rule has the effect of assuring, at least to some extent, a certain amount of consistency for those who deal with Virginia’s localities. The Virginia Chamber of Commerce has stated that the Dillon Rule “represents a positive tradition of legislative oversight” and encourages economic growth through a consistency in laws throughout the state.”

Albemarle County Land Use Law Handbook

The "Land Use Law Handbook" [13] was created to be used by Albemarle County officials as a resource for dealing with land use issues and is published online as a convenience to citizens. As noted on the Counties website, the Handbook is for informational purposes only and does not constitute legal advice. The Handbook is maintained by the County Attorney's Office, and was originally issued in November 2001. The Handbook was last comprehensively revised in July 2015, and is periodically amended as referenced.


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References

  1. https://www.baconsrebellion.com/archive/issues/05/10-03/Curious.php | “Why Does Dillon Rule? Or Judge John’s Odd Legacy” Nice & Curious Questions by Edwin S. Clay III and Patricia Bangs
  2. Jennings v. Board of Supervisors of Northumberland County, 281 Va. 511, 516, 708 S.E.2d 841, 844(2011) (“a locality’s zoning powers are ‘fixed by statute and are limited to those conferred expressly or by necessary implication’”); Logan v. City Council of the City of Roanoke, 275Va. 483, 659 S.E.2d 296(2008); Norton v. City of Danville, 268 Va. 402, 602 S.E.2d 126(2004).
  3. Sinclair v. New Cingular Wireless, 283 Va. 198, 204, 720 S.E.2d 543, 546(2012).5-200
  4. http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/LUchapter05-dillonrule.pdf
  5. https://www.baconsrebellion.com/archive/issues/05/10-03/Curious.php | “Why Does Dillon Rule? Or Judge John’s Odd Legacy” Nice & Curious Questions by Edwin S. Clay III and Patricia Bangs
  6. https://books.google.com/books?id=qOE9AAAAIAAJ&pg=PA30&lpg=PA30&dq=Those+best+fitted+by+their+intelligence,+business+experience,+capacity+and+moral+character&source=bl&ots=jO-Lh5oxYP&sig=LLcqxTKwbIhkfiVC1JM4lbLweZI&hl=en&sa=X&ved=2ahUKEwjOrODG1vPeAhWPTN8KHYvrBdAQ6AEwA3oECAUQAQ#v=onepage&q=Those%20best%20fitted%20by%20their%20intelligence%2C%20business%20experience%2C%20capacity%20and%20moral%20character&f=false
  7. https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1007&context=vcpcconference
  8. http://www.virginiaplaces.org/government/dillon.html
  9. https://www.baconsrebellion.com/archive/issues/05/10-03/Curious.php
  10. https://www.brookings.edu/research/is-home-rule-the-answer-clarifying-the-influence-of-dillons-rule-on-growth-management/
  11. https://www.brookings.edu/research/is-home-rule-the-answer-clarifying-the-influence-of-dillons-rule-on-growth-management/
  12. Lawless v. County of Chesterfield, 21 Va. App. 495, 465 S.E.2d 153(1995)
  13. http://www.albemarle.org/upload/images/Forms_Center/Departments/County_Attorney/Forms/LULH_Consolidated.pdf

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