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.

Pathways

In Virginia, local governments like the Newport News City Council hold statutory authority under Virginia law to enact local ordinances, which are municipal laws governing issues such as zoning, public nuisances, business licensing, and health and safety. They may also may adopt ordinances related to air pollution, but only with prior approval from the Virginia Department of Environmental Quality (VA DEQ) (Va. Code § 10.1-1321). These ordinances must be at least as stringent as 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 (9VAC5-170-150).

The ordinances require the Council to provide public notice and hearing opportunities before adoption, and they apply uniformly within the city’s jurisdiction.

These ordinances offer limited but crucial tools for residents and officials trying to hold polluters accountable. However, enforcement is often inconsistent, and the burden of proof typically falls on affected communities.

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 by region, but their most general, shared purpose is to separate residential property use from commercial property use. Municipal governments can institute highly specific zoning ordinances to influence the nature of a district or neighborhood in its municipality. 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 band or prohibit specific land uses that are deemed harmful to the environment and public health. Additionally zoning codes may include targeted mitigation efforts, including implementing buffer zones, phasing out noxious land uses, and mitigating hazards through code enforcement.

Public and Private Nuisance Ordinances

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.

If a locality fails to enforce its ordinance or weakens it below state standards, VA DEQ may withdraw its approval and assume enforcement authority (9VAC5-170-150). While local ordinances can take precedence over state rules within the locality, this is only permitted if the VA DEQ has approved the ordinance and it meets or exceeds state requirements (9VAC5-170-150).

In exploring potential legal avenues for addressing the coal dust in Hampton Roads, nuisance law is a promising avenue because other approaches to addressing the coal dust issue are preempted by federal or state law.

Authority granted by Title 15.2, Subtitle II, Chapter 9, Article 1 (§ 15.2-900) and by Title 15.2, Subtitle II, Chapter 11, Article 1 (§ 15.2-1115) of the Code of Virginia, the City is authorized to act to regulate nuisances and to compel a responsible party to "abate, raze, or remove" a public nuisance.

By some accounts, the Hampton Roads coal dust situation could be characterized as both a private nuisance and a public nuisance. The presence of coal dust on private property unreasonably interferes with residents’ use and enjoyment of their property (private nuisance), and the general public reasonably has a common right to not be constantly subjected to coal dust throughout one’s daily life (public nuisance).

Newport News could deem the coal dust a public nuisance via powers expressly granted by the Code of Virginia § 15.2-1115, or for residents to establish a public nuisance through the procedure outlined in Code of Virginia § 48.

Railroads

Local governments have very limited power to regulate railroads because of federal preemption (discussed below). However, they can sometimes address local impacts of railroads, for example, the noise or zoning around rail infrastructure. That said, 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 Dillon’s Rule, which means local governments can only exercise powers that the state explicitly grants. This limitation often forces counties and cities to seek special legislative approval from the General Assembly to address local issues, including issues like public health and infrastructure. As a result, enforcement and innovation are frequently slowed.

This significantly limits the ability of Hampton Roads localities to create regulations that directly address 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
• § 10.1-1321. Local Ordinances, 1966
• 9VAC5-170-150. Local ordinances
• Reynolds, O. Local Government Law. Fifth Edition, Chapter 8. 2001
• Reynolds, O. Local Government Law. Fifth Edition, Chapter 18. 2001
• Reynolds, O. Local Government Law. Fifth Edition, Chapter 23. 2001