Virginia

Constitutional Provisions:

Virginia’s Constitution does not contain a home rule provision. 

Statutory Provisions:

Title 15.2 of the Code of Virginia, which pertains to “Counties, Cities and Towns” delegates a limited form of authority to local governments to conduct their own affairs—that is, to function as local governments. Local governments are also delegated a form of police power, but are not granted home rule as in many other states.

Va. Code Ann. § 15.2-1102: “A municipal corporation shall have and may exercise all powers which it now has or which may hereafter be conferred upon or delegated to it under the Constitution and laws of the Commonwealth and all other powers pertinent to the conduct of the affairs and functions of the municipal government, the exercise of which is not expressly prohibited by the Constitution and the general laws of the Commonwealth, and which are necessary or desirable to secure and promote the general welfare of the inhabitants of the municipality and the safety, health, peace, good order, comfort, convenience, morals, trade, commerce and industry of the municipality and the inhabitants thereof, and the enumeration of specific powers shall not be construed or held to be exclusive or as a limitation upon any general grant of power, but shall be construed and held to be in addition to any general grant of power. The exercise of the powers conferred under this section is specifically limited to the area within the corporate limits of the municipality, unless otherwise conferred in the applicable sections of the Constitution and general laws, as amended, of the Commonwealth.” Counties have a similar, though more limited, grant of power under Va. Code Ann. § 15.2-1200.

Divergent state and federal courts’ interpretation of section 15.2-1102 make the provision’s scope somewhat unclear. For example, in upholding the City of Virginia Beach’s authority to finance the construction of a water pipeline by increasing water rates, the Virginia Supreme Court explained that “[a] city, in the exercise of its police power, has the right to undertake projects to promote the health, safety, and welfare of its inhabitants[,]” so long as those actions are reasonable and do not unduly restrict citizens’ constitutional rights. Tidewater Ass’n of Homebuilders v. City of Virginia Beach, 241 Va. 114, 118–19 (Va. 1991) More recently, however, a federal court applying state law held that the statute’s delegation of general authority is limited to powers granted by state law. Marcus Cable Associates v. City of Bristol, 237 F. Supp. 2d 675, 679 (W.D. Va. 2002); see also McMahon v. City of Virginia Beach, 221 Va. 102 (Va. 1980) (holding that state law permits local governments under certain circumstances to require the use of public water to protect the health of its inhabitants). This interpretive tension means that local governments should identify express statutory authorization for municipal actions, especially when they are outside the traditional purview of local authority. 

Virginia has 38 incorporated cities that are completely independent of any county jurisdiction. Va. Const. art. VII, § 1. State law requires a community to have a population of 5,000 or more to be considered a city. Id.Cities may annex counties. Va. Code Ann. § 15.2-748. The state legislature can amend a city’s charter, but must follow the procedure set forth in Va. Code Ann. § 15.2-200 et seq. In their charters, cities claim the full extent of the power granted to them under section 15.2-1102. See, e.g., Richmond, Virginia City Charter § 2.01(“The city shall have and may exercise all powers which are now or may hereafter be conferred upon or delegated to cities under the Constitution and laws of the Commonwealth and all other powers pertinent to the conduct of a city government the exercise of which is not expressly prohibited by the said Constitution and laws and which in the opinion of the council are necessary or desirable to promote the general welfare of the city and the safety, health, peace, good order, comfort, convenience and morals of its inhabitants, as fully and completely as though such powers were specifically enumerated in this charter, and no enumeration of particular powers in this charter shall be held to be exclusive but shall be held to be in addition to this general grant of powers.”).

Virginia has broad authority to preempt local laws. See Virginia Electric & Power Co. v. City of Chesapeake, 95 Va. Cir. 106, 108–13 (Va. Cir. 2017) (describing express field preemption and conflict preemption as applied in Virginia); see also Resource Conservation Mgt., Inc. v. Bd. of Sup’rs, 238 Va. 15, 22–23 (Va. 1989) (“The real question is whether the General Assembly intended to so invade [a field of regulation] as to exclude the localities.”). 

Express Preemption: 

Express preemption occurs when the state legislature includes explicit preemptive language in state statutes. For example, Virginia has expressly preempted local governments from regulating food or beverage packaging:

The provisions of this article shall supersede and preempt any local ordinance which attempts to regulate the size or type of any container or package containing food or beverage or which requires a deposit on a disposable container or package.

Va. Code Ann. § 10.1-1425.

Field preemption: 

As a general rule, the Virginia Supreme Court has stated that “when the General Assembly intends to preempt a field, it knows how to express its intention.” Resource Conservation Mgt., Inc., 238 Va. at 23. In Ticonderoga Farms, Inc. v. Loudoun County, the court stated that a political subdivision may, acting within its delegated power, “legislate on the same subject unless the General Assembly has expressly preempted the field.” 242 Va. 170, 175 (1991). Absent field preemption, “the locality may impose additional requirements not contained in the state law.” Id. For example, in Resource Conservation Mgt., Inc. v. Bd. of Sup’rs, the Virginia Supreme Court held that the Virginia Waste Management Act does not preempt the field of waste management regulation because it “displays legislative intent to permit local involvement” in regulating the field. 238 Va. 15, 22 (Va. 1989).

Conflict Preemption: 

Conflict preemption occurs when a city ordinance “permits what a state statute forbids, or forbids what a statute permits.” Virginia Electric & Power Co., 95 Va. Cir. at 111. Virginia’s Supreme Court has further explained that “[l]ocalities have ‘no element of sovereignty’ and are agencies created by the Commonwealth. Accordingly, when a statute enacted by the General Assembly conflicts with an ordinance enacted by a local governing body, the statute must prevail.” Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576 (Va. 2012).

E.g., Wayside Rest., Inc. v. City of Virginia Beach, 215 Va. 231 (Va. 1974) (finding a city ordinance prohibiting certain obscene conduct to not be in conflict with state alcohol regulations, in part because state regulations were not inclusive of all conduct).

Virginia has passed limited preemption laws that may affect local climate action.

Containers. Va. Code § 10.1-1425: This law preempts “any local ordinance which attempts to regulate the size or type of any container or package containing food or beverage or which requires a deposit on a disposable container or package.”

Virginia has not passed a ban on local plastic bag bans. Instead, local governments are authorized to pass ordinances that impose taxes on plastic bags issued at the point of sale in grocery stores, pharmacies, and convenience stores. Va. Code Ann. § 58.1-1745.

In 2022 the General Assembly attempted to pass House Bill 1257, which included a so-called “ban on gas bans” that would have prohibited political subdivisions from adopting measures that would restrict access to gas utility service and propane.¹ Although a version of HB 1257 was enacted into law, a late substitution removed the preemption provision from the bill. 

In 2024, the Virginia Senate passed Senate Bill 697, which would have preempted local governments from “including in an ordinance (i) limits on the total amount, density, or size of any ground-mounted solar facility or energy storage facility until such time that the total area under panels within the locality exceeds four percent of the total area within the locality or (ii) any prohibitions on the use of solar panels that comply with generally accepted national environmental protection and product safety standards, provided that such installation is in compliance with any provisions of a local ordinance that establishes criteria and requirements for siting.” The bill ultimately died in the House. 

Generally, Virginia courts strictly construe municipal authority, adhering to the legal theory that political subdivisions “have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.” Virginia Electric & Power Co., 95 Va. Cir. at 109. When analyzing municipal authority, Virginia courts look to whether there is an express or implied grant of power that allows a city to act; if the power cannot be found, “the inquiry is at an end.” Id.

In some instances, however, courts have opted to apply a “reasonableness” test to local ordinances. SeeArlington County v. White, 259 Va. 708, 712 (Va. 2000); see also City of Virginia Beach v. Hay, 258 Va. 217, 221 (Va. 1999) (“Where the state legislature grants a local government the power to do something but does not specifically direct the method of implementing that power, the choice made by the local government as to how to implement the conferred power will be upheld as long as the method selected is reasonable.”). This has come to be known as the “reasonable selection of method,” a rule that courts apply to determine “whether a local governing body has employed a proper method for exercising a power delegated to it[.]” Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576; see also Commonwealth v. Cty. Bd., 217 Va. 558, 574–75 (Va. 1977) (explaining that the reasonable selection of method is properly applicable to an “express grant of power silent upon its mode and method of execution” and “a power which has been implied from an express grant.”).

The cases below demonstrate how Virginia courts apply Dillon’s Rule to the statutory grant of police power to cities.

• Virginia Electric & Power Co. v. City of Chesapeake, 95 Va. Cir. 106 (Va. Cir. 2017): Virginia Electric & Power Co. (VEPCO) had operated an electric power plant in Chesapeake (the “CEC”) since the 1950s. In 1984, VEPCO constructed a landfill and pond to dispose of and store coal ash created from coal combustion. Id. at 106. After ceasing coal use in 2014, VEPCO closed the landfill and pond, submitting closure plans to the Virginia Department of Environmental Quality, detailing that the existing ash would continue to be stored at the landfill and in the pond. Id. The Chesapeake City Council passed an ordinance requiring properties that store coal combustion byproducts (CCBs) and undergo a “significant change” in principal use to obtain a conditional use permit (CUP) for the storage, use, or placement of CCBs. Id. at 107–08. VEPCO challenged this determination, arguing that the CUP requirement was preempted by the Virginia Waste Management Act. Id. at 108–10. The state Supreme Court had previously determined that the Virginia Waste Management Act did not preempt the field of waste management regulation,Ticonderoga Farms, Inc. v. County of Loudoun, 242 Va. 170, 174 (1991), emphasizing that the General Assembly “knows how to express its intention” to preempt a field, but that it had not done so in this instance. Id. at 110. Moreover, while the court did not make a judgment as to conflict preemption, it expressed that, where both state law and a local ordinance can coexist without conflicting, the ordinance should be upheld. Id. at 111–12. The court thus upheld the Chesapeake City Council’s ordinance requiring VEPCO to obtain a CUP for the storage of coal combustion ash.

• Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567 (Va. 2012): New Cingular Wireless contracted with a company to install a cellular transmission tower on a residential parcel subject to Albemarle County Code § 18-4.2 (the Ordinance), which restricts construction on steep slopes unless a waiver is approved by the county planning commission. Id. at 574. The plaintiff sued, arguing that the county exceeded the power delegated to it by the General Assembly because state law did not authorize the county’s waiver process. Id. In striking down the waiver provision, the Supreme Court held that no state statute permitted local governing bodies to delegate legislative decisions to planning commissions, 283 Va. at 582, nor found any broad grant of implied authority. Id. at 583-84.

• Marble Techs., Inc. v. City of Hampton, 279 Va. 409 (Va. 2010): The state’s Chesapeake Bay Preservation Act requires local governments to incorporate water quality protections into zoning and subdivision ordinances, using criteria established by a state board to designate Resource Protection Areas (RPAs). In 2008, the City of Hampton amended its zoning ordinance to expand RPA buffer areas, including lands designated under the federal Coastal Barrier Resources System. Id. at 414. Property owners challenged this, arguing the City exceeded its authority under Virginia’s Dillon Rule, which limits local powers to those expressly or impliedly granted by the state. That is, because the General Assembly authorized only localities to designate lands subject to the Act, the “City did not have authority to incorporate land into an RPA by referencing the [federal] Coastal Barrier Resource System.” Id. at 415. The Virginia Supreme Court reaffirmed the Dillon Rule, noting that “[i]f there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body.” Id. at 417. The court held that while the Act authorized local governments to designate RPAs based on state board criteria, it did not expressly or impliedly grant authority to rely on federal criteria. Id. at 420. 

Other Relevant Cases 

Commonwealth v. Cty. Bd., 217 Va. 558, 572–81 (Va. 1977) (well-cited opinion from Virginia’s Supreme Court, explaining Dillon’s Rule and that the reasonable selection of method is properly applicable to an “express grant of power silent upon its mode and method of execution” and “a power which has been implied from an express grant.”). 

Bragg Hill Corp. v. City of Fredericksburg, 297 Va. 566, 580 (Va. 2019) (upholding a provision of Fredericksburg’s zoning code because it fell within the scope of authority granted by a state statute.)

Dumfries-Triangle Rescue Squad, Inc. v. Bd. of Cty. Supervisors, 299 Va. 226, 235 (Va. 2020) (state statute allowing a county board to dissolve an emergency medical services agency established pursuant to the statute did not contain an express or implied grant of power to dissolve an entity that was not established pursuant to the statute.)

Virginia has a statewide building code, the Uniform Statewide Building Code (USBC), that supersedes all local government building codes and regulations. Va. Code Ann. § 36-98. The Board of Housing and Community Development (the Board) may modify, amend, or repeal any of the USBC provisions, and may regularly update the codes. Va. Code Ann. § 36-102. The USBC “contains the building regulations that must be complied with when constructing a new building, structure, or an addition to an existing building. They must also be used when maintaining or repairing an existing building or renovating or changing the use of a building or structure.” Although municipalities cannot alter building code requirements or adopt their own codes, local building departments are responsible for enforcing the statewide code. Va. Code Ann. § 36-105.Virginia has adopted versions of the codes issued by the International Code Council (ICC).² The current Virginia Construction Code (VCC) comprises an amended version of the International Building Code 2021 (IBC 2021). Virginia has also adopted the 2021 International Energy Conservation Code (IECC) and ASHRAE 90.1-2019 for statewide commercial energy codes (effective in 2024), and the 2021 IECC with amendments for residential codes.³

What is the relevant utility regulatory body in the state? Who and what does it regulate? The Virginia State Corporation Commission (SCC) acts as the state’s public service commission. Article IX, section 2 of the Virginia Constitution provides that “[s]ubject to such criteria . . . prescribed by law, the Commission shall have the power and be charged with the duty of regulating the rates, charges, and services and, except as may be otherwise authorized by this Constitution or by general law, the facilities of railroad, telephone, gas, and electric companies” and that it also “shall have such other powers and duties not inconsistent with this Constitution as may be prescribed by law.” Although the SCC “has exclusive and paramount jurisdiction to regulate [privately-owned] electric utilities,” this jurisdiction does not extend to municipal electric utilities operating within their own boundaries. Town of Culpeper v. Virginia Elec. & Power Co., 215 Va. 189, 192 (Va. 1974).

Investor-owned utilities (IOUs) provide electricity service for much of the state, almost 80% of customers according to 2018 data.⁴ The two largest, Dominion Energy and Appalachian Power, operate as utility monopolies, and their rates and profits are regulated by the SCC. See Va. Code Ann. § 56-581 (rates); Va. Code Ann. § 56-585.1 (profits).

What authority, if any, do municipalities have over utilities? Because the SCC has “exclusive and paramount” authority to regulate the rates, services, and operations of all IOUs within the state, cities are limited in their ability to control private electric utilities. There are opportunities for municipalities to exert some control, namely the discretionary authority over utility access to public infrastructure and franchise authority. Pursuant to article 7, section 8 of the Virginia Constitution, “[n]o street railway, gas, water, steam or electric heating, electric light or power, cold storage, compressed air, viaduct, conduit, telephone, or bridge company, nor any corporation, association, person, or partnership engaged in these or like enterprises shall be permitted to use the streets, alleys, or public grounds of a city or town without the previous consent of the corporate authorities of such city or town.”

Additionally, cities have legal priority over the electric power serviced to their residents pursuant to Va. Code Ann. § 15.2-2109(B), which states in part that “[a] locality may not (i) acquire all of a public utility’s facilities, equipment or appurtenances for the production, transmission or distribution of natural or manufactured gas, or of electric power, within the limits of such locality or (ii) take over or displace, in whole or in part, the utility services provided by such gas or electric public utility to customers within the limits of such locality until after the acquisition is authorized by a majority of the voters voting in a referendum held in accordance with the provisions of Article 5 (§ 24.2-681 et seq.) of Chapter 6 of Title 24.2 in such locality on the question of whether or not such facilities, equipment or appurtenances should be acquired or such services should be taken over or displaced[.]” 

Municipal natural gas utilities can seek to discontinue natural gas service but must follow the procedure set forth in Va. Code Ann. § 56-265.4:7: “A. No municipal corporation that provides natural gas service shall discontinue such service to any residential, commercial, or industrial customer prior to satisfying the following requirements:

1. Provide at least three years’ notice, both by bill insert and by publication in a newspaper of general circulation in the area in which the municipal corporation provides service, of the municipal corporation’s intention to discontinue service;

2. For two years following the publication of notice required by subdivision 1, attempt to negotiate the sale of its system facilities and associated rights such that service to its customers remains uninterrupted; and

3. If such sale as described in subdivision 2 is not accomplished within two years following the publication of notice required by subdivision 1, the municipal corporation may offer its system facilities and associated rights by auction to the highest bidder.”

Municipalities that own and operate electrical systems “may contract with any other party to buy power and energy required for its present or future requirements. Such contracts may provide that the source of such power and energy is limited to a specified project or may include provision for replacement power and energy.” Va. Code Ann. § 15.2-1133(B).

Can cities enter into franchise agreements with utilities? Yes, cities have the power to grant or deny franchises to public utilities. See Potomac Edison Co. v. Town of Luray, 234 Va. 348, 353–54 (Va. 1987). Once a municipality has granted a franchise, it is “impressed with a duty to ensure uninterrupted utility service to the consuming public.” Id.

How can cities intervene in State Corporation Commission proceedings? The SCC has permitted local governments to intervene in proceedings. See, e.g., Commonwealth v. Virginia Elec. & Power Co., 214 Va. 457, 459 (Va. 1974). Under Rule 80 of the SCC’s Rules of Practice and Procedure, a city can intervene as a public witness to a regulatory proceeding by filing written comments in advance of the hearing if provided for by commissioner order or by attending the hearing, noting an appearance in the manner prescribed by the commission, and giving oral testimony. 5 Va. Admin. Code 5-20-80(C). Cities can participate in other SCC proceedings, including by commenting or presenting evidence before the promulgation of a general order, rule, regulation. 5 VAC-20-100(A). Additionally, cities may be able to participate in declaratory judgments as interested parties. 5 VAC-20-100(C). 

Does the state have an obligation to serve statute? Yes, Virginia public utilities, not including municipal electric utilities, have an obligation to serve pursuant to Va. Code Ann. § 56-234(A), which provides that, “It shall be the duty of every public utility to furnish reasonably adequate service and facilities at reasonable and just rates to any person, firm or corporation along its lines desiring the same.”

Has the state passed enabling legislation for community choice aggregation (CCA)? Virginia has enabled community choice aggregation (CCA), allowing local governments to “aggregate electrical energy and demand requirements” for the purpose of negotiating electricity supply from an electric utility if a majority of the local governing body members’ authorizes it. Va. Code Ann. § 56-589.⁵ For a municipality to start a CCA program, it must be licensed as an “aggregator” by the SCC. Va. Code Ann. § 56-588. There are other requirements that a city must satisfy before creating a CCA program.⁶ No local Virginia government has yet established a CCA program, rendering the process for establishing such a program somewhat uncharted territory.

Richard Schragger and C. Alex Retzloff, The Failure of Home Rule Reform in Virginia: Race, Localism, and the Constitution of 1971, Virginia Public Law & Legal Theory Research Paper No. 2020-25 (Apr. 15, 2020), available at: https://perma.cc/XDQ3-8XBF (considering why Virginia has not provided a home rule provision for cities and other local governments in its Constitution).

Karly Newcomb, Breaking up with Dillon: A Practical Call for Virginia State & Local Government Law Reform, 45 Wm. & Mary Env’t L. & Pol’y Rev. 247 (2020), https://perma.cc/MA9X-RKQJ (Student Note highlighting why a transition away from Dillon’s Rule in Virginia “is advisable and why it is a crucial moment for the Virginia legislature to act.”).