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Drafting Clear Ordinances: Do’s and Don’ts

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One of a planner’s most important jobs is drafting clear and understandable ordinances. It’s also a task on which planning commissioners can offer valuable assistance.

Tips on Developing Ordinance Content

1. Be Able to Explain the Need

Elected officials often suggest consideration of an ordinance based on what a neighboring community has adopted. Reviewing other community ordinances can be very helpful. Be cautious, however, particularly if you are adopting a small section of that ordinance. Also, be aware if the ordinance language you are “borrowing” includes terms not defined in your ordinance.

Most importantly, be sure the ordinance you are drafting is tailored to meet your own community’s concerns. You should be able to explain the need for the ordinance. That understanding will also will lead to clearer interpretation and enforcement and help ensure that your ordinance is legally defensible.

2. Make Sure You Have the Authority

Before you go too far in drafting an ordinance, make sure you have the authority to enact it. Does it conform to state and federal law? Communities cannot adopt local ordinances that contradict explicit provisions of state or federal law. For example, in Minnesota there are specific provisions in state law requiring communities to allow state licensed residential facilities.

In some cases, the applicable ‘field of law’ has been preempted by state law. For example, a state-adopted building code preempts adoption of a local building code. In such cases, you do not have the authority to adopt regulations. Always check with your attorney. Adoption of an ordinance by another community does not guarantee that a similar ordinance will be legally defensible in yours.

In some instances, state laws and rules can be adopted by reference, but there is a question whether any future amendments to the state law are then automatically incorporated into your previously adopted ordinance. One way to deal with this is to include the phrase “as may be amended from time to time” when you adopt an ordinance that references a state law or rule.

3. Discuss the Draft

It’s good practice to discuss draft ordinance provisions in a work session (in most places, these must be noticed and open to the public). Planning commissioners can offer valuable insights and assistance, and should be involved in reviewing the draft. The meaning of the ordinance should be clear to them, not just to staff. Planning board members can also be asked to play devil’s advocate and thoroughly explore various possible interpretations of the draft. This extra time and work often pays off.

If you know of any interested individuals or groups, ask them to participate. Consider how application of the ordinance will affect them. Are there any unintended consequences that may result from adoption of the ordinance?

Get input from your town, city, or county attorneys’ office as early as possible. At a minimum they need to review the draft before it is scheduled or warned for public hearing.

Finally, don’t bring the draft to a public hearing before your local governing body unless its members have been briefed in advance and have had a chance to provide their feedback.

4. Use a Check List

Create a check list to review each draft. The check list should include tips from this article and the procedural requirements of your ordinance.

5. Proofread, and Proofread Again

After reading several drafts of an ordinance, it becomes difficult to see errors in typing, numbering, or other items. It can be very helpful to have someone proofread who hasn’t been involved in the drafting.

6. Keep Good Records

Communities often have a wide range of discretion in adopting local ordinances. However, the community must also comply with procedural due process requirements. Often litigants will allege violations of due process when they challenge the resulting ordinance.

Documentation of compliance can reduce the likelihood of such litigation. It is also very helpful to record minutes from ordinance discussions that are held prior to the public hearing. This information can provide the basis for the ordinance and should be included as background information in the public hearing staff report.

End of excerpt

…  second half of article is: Tips on the Mechanics of Drafting an Ordinance

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