Now that our discussion of Southern Builders v. Shaw Development is over (whew!), Green Building Law Update is going to take the rest of the week to answer some reader questions.  The first question comes from Erica: 

How should a locality located in a "Dillon Rule" state, such as Virginia, go about establishing a mandatory green building program?

Good question Erica.  Lets get everyone on the same page first.  What exactly is the Dillon Rule?  The Dillon Rule is a peculiar rule that basically limits a city’s rulemaking ability so that the city can only make rules when expressly granted by the state

“This rule provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable. When a local ordinance exceeds the scope of this authority, the ordinance is invalid."

The Dillon Rule is upheld in Virginia, which means that cities are not allowed to create their own building codes.  Virginia Code section 36-98 states “the Board is hereby directed and empowered to adopt and promulgate a Uniform Statewide Building Code. Such building code shall supersede the building codes and regulations of the counties, municipalities and other political subdivisions and state agencies.”

What does this have to do with green building?  We have previously highlighted the Virginia legislature’s disagreement over green building regulation.  While the Virginia legislature continues to disagree as to the proper green building rating system, Virginia cities are watching cities all around them pass green building regulations.  

So how does a Virginia city get around the Dillon Rule so it can enact green building regulations?  My first instinct was building codes, but clearly that is not an option.  What other states use the Dillon Rule.  Indiana?  Indiana!  And Indiana recently imposed green building regulations!  How did that happen?  Stay tuned…

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