Arlington County wanted to tax single-use plastic bags, like the District does, but was thwarted by state lawmakers. The same thing happened when Alexandria tried to raise its minimum wage, hoping to compete with the District and Maryland suburbs.
It’s all because of a 19th-century policy known as the Dillon Rule, which says states retain any legal authority not explicitly granted to local governments. All but 11 U.S. states adhere to the rule, although some have carved out “home rule” exceptions that allow localities to make their own decisions.
So far, Virginia is not among those states. But with a Democratic majority about to control both chambers of the General Assembly and the governor’s office for the first time since 1993, lawmakers say they are poised to grant permission for cities, towns and counties to make their own decisions on certain topics.
“What we’re talking about is giving localities more authority to do things,” said Del. Richard C. “Rip” Sullivan Jr. (D-Fairfax), who will be the Democratic Caucus chairman in January.
Democrats say they will probably let counties and cities choose, for example, whether to remove or relocate Confederate memorials, and are looking for ways to allow them to impose taxes on hotel stays and cigarettes. They say they are unlikely to push for a full adoption of home rule, however, citing a century’s worth of judicial decisions that adhere to the philosophy of state control.
Local officials in Northern Virginia are thrilled.
In liberal Arlington, members of the all-Democratic County Board presented their legislative priorities to the county’s state delegation last week. Instead of being told, as they had been for years, that much of the list was doomed to fail, they heard clear signals that lawmakers were open to expanding local powers.
“I think it’s likely we’ll do some workarounds, to give local government more authority,” said state Sen. Janet D. Howell (D-Fairfax), the second-most veteran member of the Senate. “Equal taxing authority between counties and towns, no-excuse absentee voting . . . I think we’ll move in that direction, but incrementally.”
“A lot of things we’ve been working on for decades now will come out,” said Del. Alfonso H. Lopez (D-Arlington). “There’s a breadth and ability to effect change for the county that we haven’t seen in years past.”
Libby Garvey, the longest-serving member of the Arlington County Board, said more flexibility is welcome. Counties right now can control most land-use decisions, set property tax rates and decide how to spend that money. But making broader changes has been difficult.
“Everything is so extremely painful to do,” she said.
Cities and counties cannot currently require set fees from builders whose developments could overload local roads and schools, although they can negotiate for voluntary fees. The state’s preemptory power allowed the General Assembly in 2018 to override Arlington’s decision on how it assessed property tax on two golf courses. Arlington has to return to the General Assembly every year to get approval to levy a hotel tax on visitors; its opposition to the opening of a gun store on the edge of a residential neighborhood several years ago went nowhere.
The Dillon Rule stems from two 1868 court cases from Iowa, in which Judge John F. Dillon, suspicious of corrupt and under-informed local boards, “opined that local governments are mere tenants at will of the legislature,” wrote Robert M. de Voursney of the University of Virginia in 1992.
The Virginia Supreme Court affirmed the ruling in 1896. Its effects have since been threaded throughout the commonwealth’s court decisions, although nowhere does it exist in the state constitution or code of laws.
Maryland adheres to the Dillon Rule but allows home-rule exceptions, which have been declared by counties including Prince George’s, Montgomery and Howard. In the Midwest, Chicago’s Cook County, Detroit’s Wayne County and Cleveland’s Cuyahoga County are also home-rule jurisdictions in otherwise Dillon Rule states. So are most of the urbanized areas in Florida.
Richard C. Schragger, a U-Va. law professor, called the Dillon Rule “kind of a backwards approach to governing” and said the General Assembly could simply abandon it by passing a law saying counties or cities can exercise any powers not denied to them in state law, the state constitution or the local charter.
“You’ve got an epidemic of pre-exemption going on around the country,” Schragger said.
But key Democratic lawmakers caution against quick and wholesale changes to the Dillon Rule, because they are wary of inadvertently destroying statewide laws and policies they want to keep in place.
A nascent movement in some parts of Virginia to declare themselves “gun sanctuaries,” for example, could collide with statewide restrictions, or with communities in other parts of the commonwealth that might prefer to ban guns completely.
“I wouldn’t want a patchwork,” said state Sen. Adam P. Ebbin (D-Alexandria), citing the importance of statewide legal advertisement regulations and a statewide building code, among other things. “I wouldn’t want gun background checks in one community but not another. I would want comprehensive nondiscrimination protections.”
That said, the Democrats in Northern Virginia appear open to allowing jurisdictions to decide for themselves whether and how to raise additional revenue.
The Virginia Association of Counties, which lists “equal taxing authority” at the top of its 2020 legislative priorities, is hopeful of making headway in the coming legislative session, which starts Jan. 8.
“We want the counties to govern themselves and make decisions best for their counties,” said Dean Lynch, the association’s executive director. “We want to put [those decisions] in the bosom of the county boards, instead of in the General Assembly.”