In order for municipal governments to promote sustainable and green development, create safe densities and open spaces in response to the pandemic, protect lives and property in areas vulnerable to natural disasters, and to manage climate change, they must be able to influence the development and preservation of privately owned land. For them to control the negative impacts of oil and gas facilities, they must find power to regulate matters that are typically the prerogative of state agencies. To legalize emerging renewable energy technologies, they must have authority to make them permitted uses in their zoning ordinances, and to innovate by creating solar-ready homes in subdivisions and provide for solar easements.
To all of these, Dillon's Rule is an obstacle. It holds that municipalities are not sovereign entities, but merely instrumentalities of states and that the legal powers delegated to them by state legislatures are to be narrowly construed. This article documents the serious erosion of that principle since 1868 when it was articulated. It discusses how amendments to state constitutions, home rule provisions, state enabling statutes, and case law have diminished the effect of Dillon's Rule as it pertains to the authority of local governments to adopt and enforce land use regulations. It then argues that the resultant broad interpretation of local land use laws should give rise to a presumption that state laws regulating oil and gas production do not preempt local land use laws unless they do so expressly. Finally, it suggests that state and local governments should collaborate to achieve state interests in energy production while preserving traditional local land use control over high-impact land uses such as energy production facilities. Unless Judge Dillon's demise is clearly understood, his ghost may frighten local officials and their attorneys and prevent them from solving the truly scary problems they will confront in the 21st century.
Dillon's Rule provides a defense for property owners who challenge local land use regulations. Using the rule, they claim that the challenged regulation is ultra vires, that is, beyond the power of the locality to act. The ultra vires claim is defeated when the local government can show that it has either express or implied powers to act under state legislation such as zoning and other land use enabling acts, home rule provisions, or under provisions of their state-approved charters. In the century and a half since Judge Dillon handed down his decision from the Iowa bench, the advent of home rule and land use enabling statutes have significantly diluted the ultra vires defense of Dillon's Rule in the overwhelming majority of states.
John R. Nolon, Death of Dillon’s Rule: Local Autonomy to Control Land Use, 36 J. Land Use & Env’t. L. 7 (2020), https://digitalcommons.pace.edu/lawfaculty/1208/.