Government rules and regulations don’t have a great track record when it comes to being clear and concise. You’d be hard-pressed to find someone who works in government that hasn’t asked the same question as so many members of the public: “what does this mean?” At the same time, it is not reasonable to expect municipalities of any size to have regular rewrites of their entire codebook, so it becomes a matter of how to thread the needle of making rules broad enough to stand the test of time, while also making these rules more easily consumable by the public, as well as those in government. 

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Over the next several paragraphs I will work to dissect the potential ways that municipalities can go about threading that needle and which ways may be best. We must keep in mind that, like most things in life, there is no “one size fits all” approach to rules and regulations. This is not intended to be a breakdown of the process of creating new rules and regulations, so much as ways of doing so that will be most beneficial to the whole community today and for years to come.

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Part 1: The Origins of Rules

A few moments ago, an announcement was made: one of the biggest manufacturers in the country has chosen your city as the site for its new state of the art facility. In the blink of an eye, your town of about 10,000 people is staring down the possibility of doubling, even tripling, in size over the next decade. Panic sets in, but not for the planners. Why? They have countless connections and resources across the country to tap into and address the first thing that comes to mind: housing.

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This is not a unique story. Sure, the names, faces and size of the cities may be different, but all across the United States, this exact type of situation is happening — and there just isn’t enough housing. So, as a planner, what do you do? This answer will vary dramatically based upon your department’s resources, but don’t discount  your “human resources” or the internet. The former is your planning network, while the latter is your ability to research the code of cities all over the country from the comfort of your own office.

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Let’s say you’ve done your homework and pieced together an ordinance that allows for higher density, mixed-use buildings in the downtown core of the city. Now comes what is often the trickiest part of all: convincing the public and city council that this is the correct path. 

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Part 2: We’ve Got Some Rules…Now What?

You’ve poured countless hours into the research and drafting of these new ordinances. Your city council passed these new ordinances with flying colors. Now that the city council has adopted your new housing regulations, the real fun begins: interpreting and applying these new codes. While the interpretation of the codes is often the part that gets people stirred up, the application of the codes creates an equally daunting task, as city staff will need to apply the codes fairly and in a way that is not deemed arbitrary. The best option becomes working with the city attorney to ensure that city staff are aware of the new code, as well as how the city intends to interpret/implement it. Such immediate, coordinated action has the potential to lessen the number of headaches that may come about from not having everyone on the same page regarding the interests of the city.

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A great example of the need to avoid arbitrary application of code takes us back over thirteen decades. In the 1880s, the City of San Francisco created a city ordinance that pertained to the regulation of laundry businesses within the city limits. However, the application of the ordinance was such that the laundry businesses owned by Chinese residents of the city were overwhelmingly not held to the same standard. This set into motion a United States Supreme Court case known as Yick Wo v. Hopkins(1886), in which the Supreme Court declared that the the City of San Francisco’s application of their laundry business ordinance violated Yick Wo’s constitutional right to equal protection under the law, as stated in the fourteenth amendment to the United States Constitution. More specifically, that an otherwise neutrally-worded law could be discriminately applied, thus unconstitutional.

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Part 3: When Do We Update These Rules?

Life changes fast, just like the world around us. Now more than ever it is important to know when to make updates to sections of code that are losing their relevance. How do we know when a section of code has lost its relevance? There are a number of ways to answer this question, but we will cover two of the most prominent. First, is the section of code over ten years old? If so, there is a significant chance of there being some conflicts and contradictions that require a reassessment of the city’s priorities. Regardless of whether those conflicts and contradictions are ten hours old or ten years old, those areas of the code leave your city in a position where multiple members of staff could be providing varying answers to the public. This leaves the city in a position to frustrate the public, as well as potentially face legal action, as it could be argued that the city is not applying the code equally across all members of the public.

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A second reason to reassess the relevance of your city’s code could be that there are sections of code that are no longer deemed constitutional by a state supreme court ruling, or in the case of Reed v. Town of Gilbert (2015), invalid by a ruling of the United States Supreme Court. In the case of Reed v. Town of Gilbert (2015), we are reminded that signs are protected by the First Amendment as speech, and that local ordinance mustn’t place greater restrictions on the size and content of religious-based signs.

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Conclusion:

As we wind this discussion to a close, there are several elements of the preceding paragraphs that stand out the most. First, how it is that our municipalities are placed in a situation where they need to update their code, whether by creating new code, or altering the existing code of ordinance. Second, that the interpretation and application of that ordinance must be executed in a way that is non-discriminatory, or it may place the municipality in the crosshairs of a lawsuit. Finally, we examined how time sometimes begets conflicts and contradictions within the code of ordinance, as well as opportunities for some areas of the code to no longer be lawful in the eyes of the federal constitution.

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All of that being said, it is important to have regular updates to your municipality’s code of ordinance as a means by which to ensure equality among residents, as well as avoid unnecessary lawsuits that only add to your already busy schedule.

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