Introduction

Dillon's Rule, a guideline that Virginia judges use in interpreting Virginia law, is perhaps the most vilified judicial doctrine in the state. Under Dillon's Rule, which will be explained in more depth later in this article, local governments possess few, if any, powers except those granted by the state legislature. Local government officials complain bitterly that Dillon's Rule prevents them from employing the appropriate remedies to problems particular to their locality--among them, sprawl.

This article briefly describes the genesis and history of Dillon's Rule. Guidelines used by other states are compared to Dillon's Rule. Then, specific examples of the application of Dillon's Rule are detailed. Finally, the author discusses what connection, if any, Dillon's Rule has to sprawl in Virginia.

Background

The Tenth Amendment of the United States Constitution provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This provision at once greatly limits the powers of the federal government and places a great deal of power with the states. However, the United States Constitution makes no mention of the powers that should be given to local governments.

In Virginia, local governments--or "municipalities"--include towns, cities, and counties. Current law regards municipalities as "creatures of the state" and dictates that municipalities must look to the state constitution, the municipal charter, or state laws for authorization to exercise powers. Consequently, a municipality has no powers whatsoever unless the state decides to grant them.

A municipality may sue and be sued, like any person. In addition, municipalities may enter into contracts, buy and sell land, and pass ordinances. Finally, and most obviously, a municipality may raise, borrow, and spend money. These powers are similar to those possessed by most adults. However, a municipality may not, for example, buy land for any purpose that it chooses. In engaging in any of the listed activities, a municipality must be pursuing a purpose allowed to it by the state. Most purposes allowed to a municipality fall within the broad definition of the police power.

The term "police power" refers to the ability to legislate to further the public health, safety, and welfare of the jurisdiction. The United States Constitution delegated this power to the states in the Tenth Amendment. Therefore, even powers within the broad scope of the police power must be delegated to the municipality before it can exercise the power. To deal with this issue, states developed two major doctrines: Dillon's Rule and Home Rule.

Dillon's Rule

Early state constitutions gave local governments representation in state legislatures. This representation allowed local governments much autonomy. In the mid-1800s, debate over the degree of local government autonomy resulted from widespread corruption in municipal government. This corruption most often manifested itself in two forms: (1) patronage-based awarding of utility franchises and (2) deliberate creation and extinction of municipalities to avoid accumulated debt. These actions prompted litigation in various state courts over the appropriateness and rationale for local government economic activities.

At the time, Judge John Dillon of Iowa was the nation's premier authority on municipal law. His decision in Clark v. City of Des Moines 1865 first set forth the rule of judicial construction that would later be named for him:

It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied.

Judge Dillon later included this rule in his seminal treatise, Commentaries on the Law of Municipal Corporations, Vol. I, 2d ed. (Boston: Little, Brown and Company, 1873). Most state and federal courts quickly adopted the rule.

Home Rule

Diametrically opposite to Dillon's Rule is Home Rule. The Home Rule movement, beginning with Missouri in 1875, prompted several states to adopt state constitutional amendments expanding the scope of municipal independence. The Home Rule doctrine allows a municipality to exercise any function, so long as it is not prohibited by state legislation or in conflict with the state constitution or any state statute. Although the doctrine appears promising to those desirous of expanding local autonomy, the state legislature still controls the scope of power held by local governments. The state legislature may repeal the Home Rule doctrine or employ a laundry list to prohibit municipalities from exercising specific powers. In addition, the grants of Home Rule authority vary widely. Some grants are very broad, while others are restricted.

As one may infer from the discussion thus far, state courts and state legislatures--and, sometimes, state constitutions--determine whether a particular state follows Home Rule or Dillon's Rule. Unless the doctrine is set forth in a state constitution, as it is with some Home Rule jurisdictions, the state legislature may change the rule at any time. Data on the number of Home Rule and Dillon's Rule states are hard to come by, but the most reliable studies indicate that 45 states employ a form of Home Rule, while five states still adhere to Dillon's Rule. Virginia strictly follows Dillon's Rule.

A case study on Dillon's Rule

Dillon's Rule can create uncertainty in interpretation. For example, in Early Estates v. Housing Board of Review of Providence, 174 A.2d 117 (R. I. 1961), the Supreme Court of Rhode Island was asked to consider whether the city council of Providence had the authority to include two requirements in a minimum standards housing ordinance. The ordinance had been passed pursuant to a state statute authorizing the city to establish minimum standards for housing "essential to the protection of the public health, safety, morals, and general welfare" and to enact minimum standards deemed necessary to make dwellings "safe, sanitary, and fit for human habitation." One of the challenged provisions of the ordinance required multifamily dwellings to have lighting in public spaces; the other required the same dwellings to be connected to hot-water lines. The court held that the quoted language in the statute "clearly intended to vest the council with power to require hallway lights." The court interpreted the same statute, however, to contain no authority for a municipality to enact hot-water requirements. In each instance, the court reached its decision based on an application of Dillon's Rule. To many, this case makes no sense. No one--with the possible exception of the Rhode Island Supreme Court--understands the difference between hallway lights and connection to hot water in this context. The case illustrates how Dillon's Rule sometimes causes odd results, while possibly hampering localities in attempting to further the public good.

Dillon's Rule in Virginia

Virginia delegates powers to localities through the Virginia constitution, via municipal charters, and, most commonly, by statute. A charter can be viewed as the "birth certificate" or "articles of incorporation" of the municipality. And the General Assembly may amend municipal charters at any time. The General Assembly recognizes the existence of a municipality by granting it a charter, which sets out the boundaries of the municipality and delineates its powers and limitations. Municipality charters govern over Virginia statutes and may provide a rich source of powers for municipalities. Government officials and citizens alike should familiarize themselves with their local charter to determine whether it grants the municipality unique powers.

Statutes, or laws, on the other hand, generally apply to all municipalities. Some statutes apply more narrowly. Municipalities mainly look to statutes to "enable" them to carry out their functions. These statutes are called "enabling statutes." One Virginia statute in particular purports to grant broad powers to municipalities. The statute allows municipalities to exercise "all powers" to "secure and promote the general welfare" and promote "safety, health, peace, good order, comfort, convenience, morals, trade, commerce, and industry" (Virginia Code Ann. § 15.2-1102).

However, Virginia and other courts use Dillon's Rule to narrowly construe even this seemingly generous grant of power. For example, this apparently broad grant of power generally does not enable a locality to enact a zoning ordinance. A state where Dillon's Rule applies, therefore, must grant municipalities the power to zone. In Virginia a detailed "enabling statute" allows municipalities to zone and sets out how they may zone. If a municipality strays from the procedure delineated by the statute, Dillon's Rule may be used to prohibit the "creative" or "different" approach.

A recent Virginia Supreme Court case illustrates this latter point. In February 1997 the court considered the validity of a local zoning ordinance prohibiting the construction of additional buildings or structures to support a nonconforming use (City of Chesapeake v. Gardner Enterprises, Inc., 253 Va. 243, 482 S.E.2d 812 (1997)). A nonconforming use is a utilization of land in a fashion that was legal when started but, because of a change in laws, is no longer lawful. Nonconforming uses are generally "grandfathered" and allowed to continue. Nonconforming uses may not be expanded, however, and cannot be renewed if stopped for a certain length of time.

The plain language of Virginia Code Ann. § 15.1-492 applies to (1) nonconforming land uses, including buildings and structures supporting those uses, and (2) nonconforming buildings and structures. However, the law does not expressly address the construction of additional facilities to support a nonconforming use. Thus, under Dillon's Rule the court had to determine whether the power to prohibit such construction is necessarily or fairly implied from the powers expressly granted by the statute. The court found that the statute was sufficient to grant the power. That the City of Chesapeake and the landowner called upon the Supreme Court of Virginia to decide this issue--no doubt at great expense to each--shows, again, the inherent uncertainty arising from application of Dillon's Rule.

As recently as July 1998, the Virginia Court of Appeals reaffirmed Dillon's Rule in Virginia. In June 1995 the management of Loudoun House, a federally subsidized apartment complex, devised a strategy to curb criminal activity and trespassing. The property manager executed a power of attorney appointing as her agents all members of the Leesburg Police Department and basically granting them the power to issue and serve trespass notices and the like on Loudoun House property. The power of attorney designated "each and every sworn officer of the Leesburg Police Department as my true and lawful attorneys-in-fact."

The court had to determine whether the police could accept broad power to issue trespass notices. The plain language of the applicable statute granted police officers the power to prevent and detect crime, to arrest criminals, and to protect life and property (Virginia Code Ann. § 15.1-138). Because the law did not explicitly address police authority to issue trespass notices, the court employed a Dillon's Rule analysis to determine whether this power was "necessarily or fairly implied in or incident to" the powers expressly granted by the statute. The court found that the limited authority to issue trespass notices was a necessary and expedient means of crime prevention and was "fairly implied in or incident to the powers expressly granted" to police by the law.

Pros and cons of Dillon's Rule

These cases indicate both the specificity required in the law to grant powers to localities and the uncertainty involved in Dillon's Rule. Many commissions and writers have urged the repeal or modification of Dillon's Rule in Virginia. For example, in 1969 the Commission on Constitutional Revision urged the General Assembly to reverse the rule by allowing municipalities to exercise any powers not denied to them by the state constitution, their charters, or Virginia laws. The General Assembly rejected this request, as well as all prior and subsequent suggestions for changes in Dillon's Rule.

Municipalities generally dislike Dillon's Rule, which they feel prevents them from adopting creative solutions to local problems. Municipalities are often more aware of local problems and, given free reign, may be able to fashion unique solutions to fit their unique circumstances. The present system, where local government officials or their hired lobbyists must trek to Richmond each January to beg for legislation, appears, at least in some respects, wasteful and inefficient.

Also, and perhaps most importantly, municipalities bitterly complain of "unfunded mandates." Namely, the General Assembly often requires municipalities to carry out certain functions. If the state legislators fail to give municipalities the ability to raise revenues to pay the cost of this new requirement, then municipalities must do more with the same resources. In some cases--like the real property tax--municipality officials could raise the local tax rate for more revenue. Dillon's Rule forecloses the possibility of raising some taxes or creating a new, more palatable tax.

In other words, the General Assembly determines which taxes municipalities may impose, how they may impose them, and, in some cases, what the tax rate will be. Thus, real estate taxes and personal property taxes provide the greatest share of local revenue. However, the General Assembly recently voted to phase in elimination of the personal property tax. This loss of revenue was not offset by the power to impose new taxes. If municipalities want to offset this loss of revenue, they must raise an existing tax (perhaps politically unpopular), get additional revenues from the state, or cut services. Note, however, that some localities in Northern Virginia possess the power to impose a local income tax. None of these municipalities has exercised this right.

Legislators in Virginia feel that the present system works satisfactorily and do not want to disrupt the system. If courts strictly interpret rules, the General Assembly may reverse the court by enacting legislation. Legislators also prefer to give new powers only to a few municipalities at first, to "test" them. If the grant of power is successful, then the legislature gives the power to all municipalities. In some states that have Home Rule, legislatures have passed large numbers of laws prohibiting municipalities from engaging in a wide variety of practices. That approach hampers municipalities even more than Dillon's Rule. Some commentators feel that Virginia, despite being a Dillon's Rule state, has granted relatively broad powers to local governments.¹ Some view Dillon's Rule as a benefit to local government officials because it can be used as an excuse not to do things that the public wants (which may also raise taxes, which the public does not want). Finally, control at the state level ensures more uniformity, which encourages economic growth by assuring companies that requirements such as business licenses and methods of taxation will be consistent throughout the state.

Does Dillon's Rule prevent localities from managing growth?

Dillon's Rule has often been cited as a major reason that local governments fail to address sprawl. Obviously, Dillon's Rule limits the tools that local governments may employ to control growth. In short, local government officials claim that their hands are tied.

During the 2000 legislative session, local governments, including a coalition of 24 high-growth communities across the state, pleaded with state legislators for grants of power to control growth. Once again, the pleas were rejected. The reactions of legislators and local government officials indicate a deep schism between the state and local governments. "None of [the state lawmakers] have a clue how to get out of these situations," said Loudoun County supervisor James G. Burton. On the other side of the aisle, State Senator John Watkins opined that he was not "going to give the local governments a blank check to slam the door on development like this."

Many commentators, however, feel that Dillon's Rule is not to blame for sprawl in Virginia. Timothy Lindstrom, staff attorney with the Piedmont Environmental Council, identifies five major factors contributing to lack of effective local planning.² First, local officials lack the political will to use the authority that local governments presently hold. Second, Lindstrom asserts that legal defeats in the 1970s have made local governments unreasonably timid.³ Third, local governments fail to keep track of the cumulative effect of numerous piecemeal planning decisions. Fourth, many municipalities have zoning ordinances that allow far more development than they need or even can imagine. Finally, Lindstrom points to decisions by the Virginia Department of Transportation as a factor that "overpowers" even good local planning.

The Virginia chapter of the American Planning Association has identified approximately 20 growth management tools presently at the disposal of municipalities in Virginia. A list and description of these tools is available on the Internet at www.vaplanning.org/GrowthTools.htm. http://www.vaplanning.org/GrowthTools.htmSince growth management and sprawl are issues across the country, not just in the five Dillon's Rule states, anecdotal evidence suggests that Dillon's Rule should not bear the brunt of the blame for unmanaged growth. In fact, Joseph Maraziti, chair of the New Jersey State Planning Commission, has stated that in New Jersey the power of the localities under Home Rule receives much of the blame for problems of uncoordinated growth. Logically, it would appear that a coordinated effort at the state level is required to control growth. Fragmented local efforts tend to channel growth to counties that do not control growth.

Conclusion

Local government officials and many citizens criticize Dillon's Rule as an anachronism. Opponents of the rule claim that it hinders the efforts of modern local governments to address the pressure of explosive growth. Almost any discussion of sprawl in Virginia mentions Dillon's Rule. Clearly, the rule has significantly restricted the authority of local governments in land-use regulation.

However, at least with regard to the allocation of authority between the state and the local governments to address the issues of land use and growth management, it is not clear that the Dillon Rule must shoulder the blame for all the consequences. Home Rule states also experience fragmented and uncontrolled efforts at growth management and blame local autonomy for sprawl.

States viewed as successful--Oregon, Hawaii, and Florida, for example--in managing growth share some common attributes. First, the growth management effort was initiated at the state level. Second, the state plays a major role in coordinating growth management among local governments. State coordination takes various forms, including state review of local plans. Third, states usually provide funding incentives and technical assistance to local government units.

Therefore, if Virginia localities are to successfully battle sprawl within the state, the state legislature must take the lead. Dillon's Rule prevents local governments from creating and implementing their own creative solutions to sprawl. However, the rule allows for the necessary consistency among localities to successfully stop sprawl, as opposed to merely shifting the growth to the next county.

Local governments and growth management coalitions should focus their efforts on achieving state-level programs to manage growth. Dillon's Rule is here to stay. Energy expended on efforts to repeal the rule seems as wasteful as the efforts of local governments to lobby state legislators for political favors. The commonwealth and her residents would benefit from a collaborative effort by state and local officials to develop a unified program to manage growth in the state.

Endnotes
1 Leibschutz, S.F. and Zimmerman, J.F., "Fiscal Dependence and Revenue Enhancement Opportunities for Local Governments in the United States," in F. Horie and M. Nishio (eds.), Future Challenges of Local Autonomy in Japan, Korea, and the United States: Shared Responsibilities between National and Subnational Governments, (Tokyo, Japan: National Institute for Research Advancement, 1997).
2 See Land Use Planning in Virginia: The Truth about the Dillon Rule
3 The author respectfully disagrees with Mr. Lindstrom on this point. The Virginia Supreme Court remains committed to Dillon's Rule in its strictest sense.

Jesse J. Richardson Jr. is an attorney specializing, in part, in land-use and zoning issues and local government law. He is also an assistant professor of urban affairs and planning at Virginia Tech. He has taught economics and agricultural and environmental law, been a law clerk, and served as an associate attorney in the state attorney general's office. A member of several national, state, and local bar associations, he has written a number of articles and has made presentations throughout the country.