About Alexandria with Mark Eaton: Leaf blowers, the noise ordinance and the Dillon Rule

0
444
About Alexandria with Mark Eaton: Leaf blowers, the noise ordinance and the Dillon Rule
Mark Eaton. (Courtesy photo)
Facebooktwittermail

By Mark Eaton

Advocates, notably Quiet Alexandria, have tried for years to get the city to restrict or ban gas-powered leaf blowers. Extensive research describes the sound levels – up to 100 decibels at the source – and negative health effects from the high-speed two-stroke engines that power GPLBs. Alexandria’s 2024 legislative package for the General Assembly contained, as it had in prior years, a request for local authority to ban or regulate GPLBs.

Virginia’s short legislative session causes bills to move, or die, rapidly. This year, as in prior sessions, a bill giving localities the express authority to ban or regulate GPLBs died in committee. General Assembly members were reluctant to confer authority over GPLBs on localities because of the potential economic effect on landscaping companies and the possible confusion arising from different requirements in adjacent communities. GPLB noise is also not the problem in thinly-settled parts of the Commonwealth that it is in Northern Virginia.

Legislators told anti-GPLB activists this year that the best way to regulate GPLBs was through the city’s noise ordinance. Alexandria’s noise ordinance already restricts the operation of “power lawn and garden equipment” from 7 a.m. to 9 p.m. from Monday through Friday, and 9 a.m. to 9 p.m. on Saturday and Sunday. The ordinance also restricts such equipment to a variety of decibel-based limits, including 55 dB at residential property boundaries.

Alexandria officials have resisted using the noise ordinance to regulate GPLBs because by the time the city’s single full-time noise inspector can get to the site, the operator has left or ceased using the GPLB or sees the inspector coming and turns off the machine. Quiet Alexandria proposed that the city amend the noise ordinance to prohibit the operation of GPLBs within 200 feet of a residential property boundary on the theory that these devices are certain to exceed 55 decibels inside that distance. 

Alexandria officials rejected this proposal in a 311 response: “Amending the Noise Control Code to effectively prohibit the use of gas-powered leaf-blowers is disallowed because the City lacks the authority to do so pursuant to the Dillon Rule. This was further confirmed after reviewing the laws of other Virginia localities and inquiring with local government attorneys throughout the state, none of which have enacted such a ban. To do so, the General Assembly would need to grant specific authority in this regard.”

Alexandria lawyer Jamie Conrad researched how Virginia courts have interpreted the Dillon Rule. Conrad’s April 17 memorandum to city leaders shows that Virginia courts have applied the Dillon Rule to grant localities, “those powers that are (1) expressly granted by the General Assembly, (2) necessarily or fairly implied from those express powers, and (3) essential to the declared objects and purposes of the municipality.”

Tellingly, there is no express grant of authority by the General Assembly allowing localities to adopt noise ordinances, but Alexandria has one. Instead, the power to enact noise ordinances is “necessarily or fairly implied” from the Code of Virginia which states, “[a]ny locality may provide for the protection of its inhabitants and property and for the preservation of peace and good order therein.”

Accordingly, Alexandria could ban or restrict GPLBs, as it currently restricts other outdoor equipment, to protect its inhabitants and preserve the peace under the city’s “necessarily or fairly implied” Dillon Rule authority. Quiet Alexandria’s proposed 200-foot amendment to the noise ordinance resembles the restrictions that localities have long imposed under their Dillon Rule implied authority.

A former Alexandria official reminded me that there was no Dillon Rule grant of authority by the General Assembly to Alexandria prior to the city’s 1975 adoption of one of the first human rights ordinances in Virginia. In short, the Dillon Rule does not preclude the city from regulating GPLBs. 

Elected officials and senior city staff should change their approach to GPLBs from “why we can’t do anything” to “how can we do something constructive.” The alternative, waiting for General Assembly action, is kicking the can down a very long road.

If City Council holds a public hearing on this issue there will be Alexandrians who will testify that with GPLBs hearing is, indeed, the issue.

The writer is a former lawyer, member of the Alexandria School Board from 1997 to 2006, and English teacher from 2007 to 2021 at T.C. Williams High School, now Alexandria City High School. He can be reached at aboutalexandria@gmail.com and subscriptions to his newsletter are available free at aboutalexandria.substack.com.

instagram
Facebooktwittermail