Local Ordinances

Overview

In Virginia, local governments, including city councils and county boards, have the legal authority to protect the health, safety, and welfare of their residents. At the same time, under Virginia's Dillon Rule, local governments can only act within the specific powers granted to them by the Virginia General Assembly. Virginia's Dillon Rule limits the ability of local governments to directly regulate things that are regulated by the state, for example, air quality.

One tool available to local governments are ordinances, which are municipal laws governing issues such as zoning, public nuisances, business licensing, and health and safety. Local governments can also hold public hearings and forums to formally document residents' concerns and build public records, advocate to the Virginia General Assembly and state agencies for oversight and enforcement of existing state and federal regulations, create and distribute funds through local fees, fines, and funds to provide dedicated resources for specific issues. Local governments can often leverage underused powers, work in partnership with nonprofit organizations, and even operate in legal gray areas where risk is minimal but potential impact is significant.

What can be achieved through local regulation involves a complex interplay between local authority and priorities, state preemption, and community pressure.

Local Ordinances

In Virginia, local governments like the Newport News City Council and Norfolk City Council hold statutory authority to enact local ordinances. Local governments can also adopt new ordinances related to air quality specifically with prior approval from the Virginia Department of Environmental Quality (VA DEQ). Such an ordinance must be at least as stringent as the existing state regulations, and localities are required to demonstrate they have sufficient resources to enforce the rules, including procedures for monitoring, compliance, and public complaints. The ordinance would city council to provide public notice and hold hearings before adoption, which would apply uniformly across the city's jurisdiction.

Zoning

The process of zoning consists of dividing a particular region of land into districts or zones, then specifying the types of land uses that are allowed or prohibited for each zone. Zoning rules vary greatly between localities, but their most general, shared purpose is to separate residential property use from commercial property use. Local governments can have highly specific zoning ordinances to influence the nature of a district or neighborhood. For example, by designating several neighboring sections of a city strictly for residential use, residents of that region will experience less traffic and noise pollution in their environment.

Most explicitly, municipalities can use zoning to ban or prohibit specific land uses that are deemed harmful to public health and the environment. Where pollution sources and residences are both allowed, zoning codes may include targeted mitigation efforts such as buffer zones.

Public and Private Nuisance Ordinances

Local governments are authorized regulate nuisances and even to require the nuisance source to "abate, raze, or remove" it. There are two types of nuisances, private nuisance and public nuisance.

Private Nuisance: As an example, coal dust on private property interferes with residents' use and enjoyment of their property. Many residents have reported avoiding enjoying time outside on their porches and keeping their windows closed to keep coal dust out of their homes.

Public Nuisance: The general public reasonably has a common right to not be constantly subjected to coal dust throughout their daily lives.

Community advocates (e.g. through the Coal Dust Kills) have specifically pushed for a local ordinance recognizing coal dust as a public nuisance, requiring mitigation measures such as domes or wind fences at terminals. An ordinance could require all uncovered coal storage piles within city limits to implement dust suppression technologies or enclosures, and make these standards legally enforceable. This has been a successful strategy in other places, such as Richmond, California and Dearborn, Michigan where the city used ordinances and permitting to restrict coal and fugitive coal dust from the local terminal.

Railroads

Local governments have very limited power to regulate railroads because of federal preemption. However, they can sometimes modify local impacts of railroads, for example, addressing the noise or zoning around rail infrastructure. Local governments cannot impede rail operations and must work within narrow exceptions, and often need state or federal approval to take action.

Limitations on Local Regulations

Local jurisdictions may not:  

• Regulate economic issues  
• Control station closures  
• Apply burdensome or discriminatory regulations  
• Unduly restrict the operations of interstate carriers  

Local jurisdictions may:  

• Conduct environmental monitoring  

• Apply building and zoning codes (but not pre-construction reviews)

Federal Preemption

The Interstate Commerce Commission Termination Act (ICCTA) preempts many state and local regulations. Additionally, the federal government holds primary authority over railroads through agencies like the Federal Railroad Administration (FRA) and the Surface Transportation Board (STB).

A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order-- (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce.

In other words, as long as the regulation does not effectively foreclose or restrict or unreasonably burden railroad operations, local bodies retain power to protect health and safety with regulations.

State and local government can use their “police powers” to protect public health and safety but state or local actions must not be discriminatory.

Dillon's Rule

Virginia operates under the Dillon Rule, which means local governments can only exercise the specific powers granted to them by the Virginia General Assembly. This often forces cities and counties to seek legislative approval from the Virginia General Assembly to address local issues.

The City Manager Alan Archer of Newport News has claimed that the City of Newport News can not address coal dust pollution through an ordinance because air quality is regulated by the state, and any ordinance would require approval from the Virginia State Air Pollution Control Board (APCB). In 2024, City Manager Archer passed a hardcopy of such a statement, without City of Newport News letterhead or the signature of the City Attorney, to a Repair Lab team member to dissuade their efforts to compel the Newport News City Council to explore an ordinance solution to the coal dust pollution.

Documents

• Council Gets Air Pollution Control Plan, December 18, 1956
• Federal Preemption of Railroad Law, February 10, 2016
• 'I Hear That Train a Comin': The Local Regulation of Interstate Railroads, April 30, 2021
• Reynolds, Local Government Law, Fifth Edition, Chapter 8, 2001
• Reynolds, Local Government Law. Fifth Edition, Chapter 18, 2001
• Reynolds, Local Government Law, Fifth Edition, Chapter 23, 2001
• Letter from Newport News City Manager Alan Archer to Repair Lab Team Member, August 2024