Planning — States and Municipalities
The Tenth Amendment of the United States
Constitution reserves this regulatory power
strictly for the states.
States delegate authority for land use planning
and regulation.
States have usually granted most of that power to
local governments.
These powers are the broadest and least
limitable source of authority that states grant to
municipal governments.
Moreover, since the delegation is granted with very
little specific guidance, American municipalities
arguably enjoy
"The most liberal property laws on earth."
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Planning — States and Municipalities
Local governments derive their authority to zone from state
legislatures, either from:
State constitutional home rule or
enabling legislation.
This delegated authority usually contains broad parameters allowing
localities to zone principally to protect property owners from "negative
externalities”.
Municipalities then use this police power for the public good to classify,
specify and identify land uses.
Usually, the enabling statute or home rule legislation grants localities the
appropriate means or tools to achieve zoning goals.
Generally, the terms and conditions are broad, offering the municipality
flexibility in exercising the delegated power because each situation
involves unique variables that a state legislature is unable to predict.
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Planning — States and Municipalities
Home Rule
Dillon’s Rule
Under home rule, counties are viewed as being
free to undertake activities unless expressly
prohibited by the state.
Under Dillon’s rule, counties are free to undertake
only those activities that are explicitly allowed
by the state.
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Planning — States and Municipalities
Home Rule 1
Home rule is the right of a town or city to enact
laws that are municipal in nature and:
• that do not frustrate or run counter to a state
law and/or
• that the state has not prohibited the town or
city from passing.
The concept of home rule is very important to local
government because without home rule
authority, cities and towns would depend on
specific acts of the State Legislature for their
governing authority.
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Planning — States and Municipalities
Home Rule 2
Home rule may be effected by an amendment to
the state constitution to delegate broad "home
rule" ordinance powers to cities and towns.
Such ordinances may include:
•
•
•
•
•
•
•
controlling the barking of dogs
regulation of adult businesses
regulation of signs
control of a town's growth
review of real estate development projects
banning of herbicide spraying
regulation of local timber harvesting.
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Planning — States and Municipalities
New England Town Meeting
The New England town meeting and school district
meeting are the only direct democracy
institutions in the United States involving
lawmaking by assembled voters.
A New England town meeting, except in Rhode
Island, is called by the Board of Selectmen—the
town's plural executive—which issues a warrant or
warning of the place date and time of the meeting.
The New England town meeting is a de facto
representative body because the majority of
eligible voters do not participate in the meeting
except in very small towns. Attendance ranges from
an average of nine percent in Connecticut towns, to
26 percent in Vermont towns.
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Planning — States and Municipalities
Dillon’s Rule 1
John Forrest Dillon, for whom the Dillon Rule is named, was the chief justice of the Iowa
Supreme Court approximately 100 years ago.
He was also one of the greatest authorities of his time on municipal law and a prolific
writer on local governments.
Judge Dillon was a man who greatly distrusted local governments and local
government officials.
He is quoted as saying that,
"those best fitted by their intelligence, business experience, capacity and moral
character' usually did not hold local office and that the conduct of municipal affairs was
generally "unwise and extravagant."
Perhaps largely because of such strong beliefs. Judge Dillon expounded his famous
rule, which was quickly adopted by state supreme courts around the nation.
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Planning — States and Municipalities
Dillon’s Rule 2
Dillon's Rule is a “strict construction” interpretation of local
government powers by courts.
Lawyers call it a rule of statutory construction: a process by which a
court seeks to interpret the meaning and scope of legislation.
Dillon's Rule construes grants of power to localities very narrowly.
Dillon’s Rule allows localities to possess only such powers as are
specifically delegated to them by state law.
If there is a question about a local government's power or authority,
then the local government does not receive the benefit of the
doubt. Under Dillon's rule, one must assume that the local
government does not have the power in question.
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Planning — States and Municipalities
Dillon’s Rule 3
Local governments have only three types of
powers,
1.
2.
3.
those granted in express words,
those necessarily or fairly implied in or
incident to the powers expressly granted
and
those essential to the declared objects and
purposes of the corporation, not simply
convenient, but indispensable.
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Planning — States and Municipalities
Dillon’s Rule 4
Does "Dillon's Rule," preclude robust local action to curb
sprawl?
Thirty-nine states employ Dillon's Rule to define the
power of local governments.
Dillon's Rule neither prohibits nor hinders growth
management.
Strong local autonomy can complicate regional
collaboration.
Localities — rather than blaming Dillon's Rule for the
shortcomings of growth management —need to reexamine their own regulations (which set the rules of the
development game) and urge states to take a
leadership role.
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