Leaf Blowers, Alexandria's Noise Ordinance, and the Dillon Rule

From The Alexandria Times, July 4, 2024, with a July 9, 2024 Update on Alexandria's request for an opinion of Virginia's Attorney General

Advocates, notably Quiet Alexandria, have tried for years to get the City to restrict or ban gas-powered leaf blowers (GPLBs).  Extensive research describes the sound levels (up to 100 decibels (dB) 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 has 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 express 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 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” to 7:00 am to 9:00 pm from Monday through Friday and 9:00 am to 9:00 pm 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 dB 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.

This is not the first time that City officials have cited the Dillon Rule as the reason why something cannot be done.  The Dillon Rule is a statutory construction principle, not a prescriptive rule that outlaws conduct.  It is often summarized as, “local governments have only those powers that are expressly granted by the state legislature.”  

John Forrest Dillon (1831-1914), Chief Justice, Iowa Supreme Court; U.S. Circuit Judge, and professor at Columbia and Yale Law Schools

Alexandria lawyer Jamie Conrad researched how Virginia courts have interpreted the Dillon Rule.  Conrad’s detailed April 17, 2024 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.”  The memorandum can be seen

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 the 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 https://aboutalexandria.substack.com.

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Update: July 9, 2024

After this column was published, I received a message from Alexandria Mayor Justin Wilson advising that Alexandria had requested an opinion from Virginia Attorney General Jason Miyares asking whether the City had the authority to regulate GPLBs.

Specifically, on May 31, 2024, Delegate Elizabeth Bennett-Parker submitted a request for an informal opinion on the City’s behalf which states:

The Alexandria City Charter provides the City with authority “to compel…the elimination of unnecessary noise,” Charter § 2.04(m). With limited exceptions, the Alexandria City Code sets a general limit on noise that can be emitted in the City of between 55 and 65 decibels depending on the location of the noise being generated. Code § 11—5-5(a)(3), Table III.  Generally no leaf blower would be able to meet these decibel limits.  For instance, gas-powered leaf blowers generate nose between 80 and 90+ decibels and electric leaf blowers generate noise between 70 and 80+ decibels. Therefore, if the City’s general decibel limits of between 55 and 65 decibels were applied against leaf blowers it would constitute a de facto ban on leaf blowers, because no leaf blower can generally operate within the legal noise limits.  Because the Virginia Code does not explicitly permit localities to enact any form of a ban on leaf blowers, the City Code exempts power lawn and garden equipment from the Code’s general decibel limits and instead regulates leaf blowers and other power lawn and garden equipment based on hourly restrictions, Code § 11-5-4(16). Table II.

These circumstances have created the following questions:

1.      Would it violate the Dillon Rule for the City [to] use its Charter-derived authority to repeal the City Code’s exemption of power lawn and garden equipment from the general decibel limitations, which would incidentally result in people being unable to use any leaf blowers in the City because leaf blowers cannot meet the Code’s decibel limits?

2.      Can the City amend the Noise Control Code to allow the use of electric powered leaf blowers, but prohibit the use of gas-powered leaf blowers, which contribute to more noise pollution?

In a July 7, 2024 interview, Wilson said that the City asked Delegate Bennett-Parker to submit the request for an informal opinion of the Attorney General because of a reluctance, which Wilson termed a “passing of the buck,” by some General Assembly members to engage with the GPLB issue.

Wilson said that the hesitancy of the General Assembly to pass legislation allowing localities to regulate GPLBs—an authority he supports and that Alexandria has repeatedly asked for in its legislative package to the General Assembly—might stem from a concern that such legislation would be perceived as advantaging those who work from home at the expense of businesses that employ numerous minority workers.

Wilson said that members of the General Assembly may also be concerned that GPLB regulation has the potential to become a flashpoint in the culture wars such as, for example, the backlash over attempts to regulate the installation of gas stoves.

Wilson said that landscaping industry trade groups, for example, the National Association of Landscape Professionals which is headquartered in Fairfax, Virginia, carefully watch legislative action at any level involving landscaping equipment.

The consensus of Virginia city and county attorneys, according to Wilson, is that localities do not have the authority to regulate GPLBs because of the Dillon Rule. 

Wilson said that with an opinion of the Attorney General, “We will at least know what the arguments will be” if the City elects to pursue a more aggressive approach.