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Frequently Asked Questions

Drafting Legislation

Almost every government adopts laws that regulate activities within its jurisdiction. In most states, when adopted by local and municipal governments, these laws are commonly known as ordinances. However, there are states where specific procedures are different from other states. Some of these different procedures result in laws having different names, such as “by-law,” “local law” or  “article.” Although the names may vary, the idea is similar and many of the procedures find parallels under differing terminology. We will use the term “ordinance” to include all such formal local legislation.

Do not use the pages that follow to determine your exact procedure for enacting ordinances. Just as some states use differing terms, most states utilize very specific and slightly different processes for adopting ordinances.

Q:  WHAT IS AN ORDINANCE?

Broadly speaking, an ordinance is a formal enactment by a local government, adopted by the primary governing body of that government (for example, a City Council).

Q: WHAT IS MEANT BY A “FORMAL” ENACTMENT?

For our purposes, “formal” means that the procedures followed in an ordinance’s adoption are specified by a more powerful government (normally, the state). In most cases, these procedures include such steps as public notice of hearings prior to adoption, hearings, legal review, public notice of adoption, availability of the proposed text prior to hearings, recorded vote in open meeting and, after adoption, legally defined methods of recording in the municipality (sometimes in other places, too).

Q:   HOW DOES AN ORDINANCE DIFFER FROM OTHER ACTIONS, SUCH AS RESOLUTIONS?

Generally, ordinances have a greater regulatory capacity than resolutions. Although resolutions may be prepared according to a specific format and are usually shown on agendas before meetings of governing bodies, the procedures followed for resolutions tend to be less exacting.

The vast majority of resolutions are used to perform the day-to-day administrative tasks of the governing body: to appoint members to committees, to recognize merit, to state policy, to request action or to state that further action of a more substantial nature may lie in the future. Too, in many states there is a system by which resolutions may be used to establish specific traffic regulations (such as setting speed limits, stop signs or parking restrictions), with the idea being that the sign placed to mark the regulation serves as notice of its adoption. Finally, some governments use resolutions to record their votes on the adoption of ordinances (this can get confusing for the innocent bystander, but it can have advantages for someone indexing or reading minutes).

On the other hand, ordinances usually establish a more definite and general concept.

Although some governments use ordinances to make streets official, to eliminate streets from official maps, to adopt budgets or to allow bonds to be issued, the general idea of an ordinance is that it establishes a law that must be followed in that municipality.

Ordinances are usually adopted to solve problems both immediate and anticipated. They often identify penalties for violation of their contents.

Subjects covered by ordinances are infinite in nature, but some common subjects are: the specific form of the local government (creating secondary boards, administrative procedures and codes of ethics for example), annexation of neighboring properties; land use; traffic; animals; building construction; junkyards; peddlers and solicitors; noise; health and safety issues, and street excavations.

Q:  WHEN AN ORDINANCE IS “SUBJECT TO REFERENDUM” WHAT DOES THIS MEAN?

In some states, certain ordinances are subject to adoption not only by the governing board but also by vote of the electorate. This is called “referendum.”

The subjects requiring referendum tend to be significant to the form of the municipal government or of the uses and boundaries of the jurisdiction. So, in various states, it may be necessary to hold a referendum to annex land to the municipal boundaries, to adopt or amend zoning or to adopt or amend a Charter.

In some states, an alternate approach called the “permissive referendum” is used for certain types of legislation. This approach allows the governing board to adopt an ordinance and, unless the public requests a referendum within a specified number of days, the ordinance comes into effect. If such a request is made, normal referendum procedures usually apply.

A third version of a referendum is a non-binding vote. It is, essentially, a formal poll of the voters to identify their stance on proposed action.
State laws are usually quite specific about how and when referenda are held. Please be sure to have your municipal legal counsel advise you on this.

Q:  WHY SHOULD WE SPEND SO MUCH ON PUBLISHING NOTICES?

Most ordinances are regulatory in nature, which is to say that they are meant to indicate to people that there are certain things that they may or may not do. In order for this to have effect, the public needs notification or “notice” as to what the ordinance requires. Notice of hearings reinforces the people’s role in government, making them aware of the issues before their government and giving them an opportunity to contribute to the governing of their communities.

Notice requirements vary from state to state and are generally set forth in state law.

Notice may be required prior to and/or after the adoption of an ordinance, depending upon its scope and subject matter.

Q:  WHY DO WE HAVE TO KEEP COPIES OF ORDINANCES FOR SO LONG?  HOW SHOULD WE HANDLE THIS?

Ordinances serve a surprising number of functions. Obviously, they tell us what we may or may not do. In addition, they tell us about the past.

As a record of local history, ordinances can tell us quite a lot about concerns of the past. For example: a turn of the 19th - 20th century ordinance which restricts the blackness (sootiness) of smoke from mills and manufacturers may have been adopted at the request of housewives whose laundry, drying on the line, was blackening even before folding. An ordinance regulating “Bawdy Houses” may tell of a wild and wooly time in local history. Generally, when an ordinance is adopted, it is because of a current or pending condition. Thus, old ordinances become valuable documents of the local past.

As a legislatively historic document, an old ordinance may be needed in order to identify the legality of a past action which continues today. If a new zoning ordinance bans junkyards but an existing junkyard was operating before the ordinance was adopted, it would be necessary to return to older ordinances, no longer in force, to determine if the junkyard has a legal preexisting or nonconforming use status. If it does, this will probably have an effect on enforcement efforts.

It can be difficult to keep track of ordinances. In some states, there are laws identifying the exact filing procedures. One common approach is to require all ordinances to be numbered and that the signed and sealed ordinances be placed in a secured ordinance book.

In many cases, ordinances are left in minutes. This works well if there are very few ordinances adopted by the government. In other cases, ordinances are placed in files, along with relevant documentation. For duplicating purposes, this is often the easier storage method, as a locked ordinance or minute book may be difficult to manipulate on a photocopier. Please check with state laws regarding procedures to be followed in your state. In many states, there are associations of municipal officials. Such an association is usually the most practical place to go for specific advice on how to maintain your ordinances, as it is made up of people who are actively involved with local government and who are often well read in the current legal requirements of their state or province.

Q:  IT SEEMS AS THOUGH WE’RE ALWAYS ADOPTING ORDINANCES…

To a great extent, this is unavoidable at the local level. Many of your ordinances are enacted because of federal, state or county requirements. As examples: You often need to adopt ordinances to reflect changes in the Federal Emergency Management Act flood insurance requirements. Your state may require local adoption of building, fire prevention or electrical standards or local enforcement provisions in state standards.

Some other regulatory ordinances are adopted to resolve conflict.  In some cases, careful negotiation may enable you to solve a conflict before having to resort to legislation. If this can be accomplished, the government will have saved the expenses of writing, publishing, enacting and enforcing the ordinance.

Many other regulatory ordinances deal with the problems and issues important to your community. To a great extent, these problems and issues may be reasons for the very existence of a local government. Obviously, it is important to deal with problems and issues in an effective manner.

Q:  WHAT EFFECT DO STATE LAWS HAVE ON MY ORDINANCES?

Municipal governments, as a concept, exist in every state and province in the United States and Canada. Their structure, powers, role and geography varies to a remarkable degree.

Although there may be parallels between a town in one state and a town in another, when examined closely there are also many differences. For example, in some states local governments may legislate only to govern activities that their state has specifically authorized them to regulate. For other states, local governments may govern any activity that the state has not placed out of bounds.

In some states, a governing body may adopt an ordinance and it will come into effect following publication. In other states (particularly in New England), most ordinances require vote by a meeting of the town electors (residents who are registered to vote). And in still other states, ordinances do not become effective until approved by the state government, after the municipal government’s adoption.

Q:  WHAT EFFECT WILL ONE ORDINANCE HAVE UPON ANOTHER?

Ordinances can affect each other in three basic ways: explicitly, implicitly and accidentally.

The explicit effect is certainly the best known: this is an amendment or repeal. For this type of effect, the later ordinance refers specifically to the earlier and described the manner in which it is to be changed.

The implicit effect is often called supersession. Normally, this is intentional. Although it is usually better to identify the nature of the impact on prior legislation, the occasional desire is to imply that the new ordinance, because it is newer, will govern in place of all or part of the older one. For example, a government may adopt a new comprehensive building code that covers a variety of subjects. Even though the new ordinance does not specifically repeal all of the older legislation covering plumbing or electrical requirements, the legal effect may be that the older legislation has been superseded.

The accidental effect is the most frustrating. Usually it is identified by difficulties caused in enforcement. All too often, governments are called upon to regulate matters under intense political pressure. This can lead to a narrowing of focus that misses the external relationships between the new ordinance and others that preexist it. A very good example of this might be seen in a community that suffers the loss of one of its children to drowning in a swimming pool. The public demands an ordinance. The government responds by requiring solid fences a minimum of 6 feet high around all pools. However, the government is so concerned with the drowning that it is unaware of a regulation in its zoning ordinance which bans fences over 5 feet high in residential districts. This creates a conflict that would make it very difficult to construct a swimming pool. With careful review, accidental effects can be limited, but most governments run afoul of this at one time or another.

Q:  WE NEED TO CHANGE OUR ORDINANCE.  WHAT SHOULD WE DO?

First, bear in mind that you should use the appropriate type of legislation and procedure for the subject matter that you wish to address. For example, if your state has tighter requirements for adoption of zoning ordinances than for other ordinances, be sure to follow the procedures for zoning when adopting the zoning amendment.

Second, consider your goals very carefully. If you wish to revise all of the provisions of your original ordinance, you may wish to rewrite the whole text and phrase it as either an “amendment in its entirety” or as a new adoption with the repeal of the earlier ordinance.
More often, however, changes are smaller amendments, adjusting language to fit changing needs. All too often, governments will readopt on entire ordinance just to change one line. This can make it difficult to identify changes that could affect a pre-existing condition.

In most cases, it is better to describe the portion of the older ordinance which is to be changed and then to describe the nature of the change (i.e., “to change the fine stated in §________ from _______” or  “to change the second sentence of §_______ to read as follows:_________”), by doing this, a government creates a clearer and simpler historical record of ordinances.

Q:  HOW CAN WE GOVERN ACTIVITIES IN A NEIGHBORING MUNICIPALITY?

Normally, you can’t. A government can regulate only within its own jurisdiction. A neighboring municipality is a separate jurisdiction, subject to its own ordinances. Thus, if you need relief from activities in a neighboring municipality, it is necessary to request action from its government, from a higher government or through the courts.

Q:  HOW DO WE WRITE AN ORDINANCE?

There are two common ways for a local government to prepare an ordinance. One way is to direct the municipal legal counsel to draft it. The second approach is for an administrative or legislative member of the government to write the ordinance and for the attorney to review the legal language.
When you or your legal counsel begin to develop a new ordinance (or a major revision of an existing one), there are two good rules of thumb to follow:

1. Address a basic problem.

Of course, any time that you write an ordinance, you are addressing a problem. Unfortunately, it is often the case that ordinances are written to deal with general subjects rather than with specific issues. As an example, a largely residential community might wish to control what it sees as excessive pavement in front yards.  Its ordinance might attempt a ban on pavement other than driveways. This approach may have many problems, including adequate definition of appropriate pavement and issues of constitutionality among others. However, if a brief consideration is made of the effects that make the pavement objectionable, several other more easily regulated issues become obvious. For example, what effect would such pavement have upon surface water or stormwater runoff? Does the area feature hills that might require excavation? Requiring an environmental impact review may be a reasonable approach to governing this. Such a requirement may be more easily justified, more easily phrased and more easily enforced than some other approaches.

2. The simpler the better.

By this we mean that the more complicated the ordinance becomes, the more difficult it becomes to follow and understand and the more likely it becomes that unintended loopholes will be created. For some cases, it may become obvious that an ordinance is dealing with an overly general subject when the ordinance becomes complicated and the writer begins trying to anticipate various potential problems. The ideal is to write an ordinance that makes a simple statement such as: “It shall be a violation of this ordinance to empty motor vehicle ashtrays in or on any public property in the community unless such ashtrays are emptied into properly marked public waste receptacles. A violation of this ordinance shall be punishable as follows…” This is, of course, not always an attainable ideal. However, in some more complex situations, a series of such simple statements may deal with different facets of the larger problem and, together, may address the entire situation in a clear and effective manner. This approach is also valuable as it makes your ordinance easier to read and simpler for indexing purposes.

Q:  CAN WE USE OTHER LOCAL GOVERNMENTS’ ORDINANCES TO WRITE OUR OWN?

Sample legislation is available from various sources, including some state associations of local governments, from your neighbors and from General Code.

Samples are a very good way of seeing how others have dealt with similar problems. They can provide an effective means of avoiding the problems met by other governments when they wrote their ordinances. You can save time and energy and, if your municipal legal counsel is paid by the hour, samples can streamline the use of counsel’s time.
There are three basic ways to use sample legislation:

1.  A sample may provide the perfect approach to your community’s problem. In this case, you can simply change the names, get legal review and adopt it.

2.  A sample may be substantially appropriate but may need some minor revision. For example, it may come from a different type of municipal government or even from a different state and may need adjustment to bring it into conformance with applicable state laws.

3.  It may be that no one sample serves in the most ideal manner. A cut-and-paste approach may be the best in this case, taking useful portions of one sample and appending them to valuable portions of another. In this way, a perfectly customized ordinance may be fashioned.

Q:  WHAT CONSIDERATION SHOULD WE GIVE TO ENFORCEMENT?

Enforcement should be considered from at least three perspectives.
The first perspective is legality. Is this ordinance legally enforceable? What liability might be created by the government enforcing such an ordinance? Your legal counsel should consider these and other similar questions.

The second perspective is that of capacity. For example, if a government chooses to regulate noise, it may set decibel levels as minimum volumes for noise. Such a regulation, to be adequately enforced, requires the government to have enforcement personnel, a decibel meter, an enforcement officer trained to use the meter and the ability to attest to the proper calibration and to the good working condition of the meter. Additionally, the government must get the trained officer and the certified meter into the right place at the right time to measure the noise. If any of these were missing, capacity to enforce such an ordinance would be questionable.

The third perspective is that of cost. To use the example described above, a government might have to purchase the decibel meter, add personnel to its police department staff and pay for training.

It must also be recognized that this is the real world and, realistically, we know that ordinances are sometimes adopted to show a position even when the ability to enforce them may be limited. For this reason, one or more of the three perspectives listed above may be seen as irrelevant in some cases. The issues of enforcement should be balanced with the objectives of the ordinance being considered.

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