Meeting with Virginia Municipal League, Mitchell Smiley
October 31, 2024
I had a friendly zoom call with Mr. Smiley to discuss QC NOVA’s legislative plans for the 2025 General Assembly and to solicit VML’s support – or at least non-opposition to our proposed bill. I recapped what QC NOVA is trying to do with regard to local option for regulating/prohibiting gas-powered leaf blowers (GLBs), the fate of our two bills in the 2024 General Assembly, and our broader concerns about sustainable landscaping practices as included in our mission statement.
Smiley said that VML would officially neither support nor oppose our bills in 2025 as there is simply nothing about GLBs in the policy statement that VML has recently finalized. We would have had to present something early in the summer in an effort to get our issue into the policy document.
In boning up for the meeting, Smiley became well aware of the recent AG Miyares opinion sent to Alexandria – viz., Alexandria’s charter with its authority “to compel… the elimination of unnecessary noise… and to compel the abatement or removal of any and all other nuisances whatsoever within the city” does give Alexandria the right to amend its noise ordinance to effectively outlaw most GLB use. Although only three counties in Virginia (Chesterfield, James City, and Roanoke) have charters [and only one town, Goshen, does not], Smiley opined that there were likely some constitutional or legislative powers to regulate nuisances that could be available to counties and might be construed to relate to GLBs. (Something to be explored.)
As others have noted, Smiley commented that the Miyares opinion might not be shared by other lawyers, including those who advise local governing bodies. He pointed out that the Miyares language was careful to indicate that his opinion was based on the circumstances/facts that Delegate Elizabeth Bennett-Parker spelled out in her request for an advisory opinion; Miyares was not giving a blanket opinion that would necessarily apply to other jurisdictions or circumstances. Smiley agreed that it would be best to have solid ordinance authority as our bills spell out.
Smiley suggested that we make our pitch in a positive way — not seeking any brand new authority but rather seeking to get the same powers that already exist for cities and towns in terms of regulating nuisance noise. Not trying to get around the Dillon rule; rather, seeking the same authorities that have been given to Alexandria under the Dillon rule. He noted that there were generally not super specific authorities in the Virginia code and was surprised when I said that the QC NOVA bill language was originally modeled on the specific code about air cannons.*
He also suggested that we stress “pollution” rather than “climate impact” given that “climate” is a triggering word for many General Assembly members whereas pollution as a local issue – e.g., where there are children suffering from asthma – is more likely to get a sympathetic hearing. He cited the example of the Chesapeake Bay where local concern about pollution around Norfolk rather than sea level rise was a useful lead-in to getting legislators to address the whole situation of the Bay.
As we discussed the reception of our 2024 bills in the House and the Senate, he commented that the Senator Danica Roem idea of making the bill apply only to Northern Virginia could have had opposing impacts – either legislators would let it pass as something that only affected NOVA so did not need to be actively opposed, or dismiss it altogether as something that only NOVA wanted and therefore did not merit an amendment to the Virginia code. Sometimes, limiting application of a law does lead to universal application as those excluded (e.g., Richmond, Charlottesville if GLBs were only regulated in NOVA) ask to be included and the law eventually ends up being applied throughout the commonwealth. As a general proposition, Smiley counseled that the average timeline for something becoming law in Virginia is five years – time for an idea to percolate and move through two defeats in two general assemblies and parts of one or more governors’ terms before finally getting approval.
* § 15.2-918. Locality may prohibit or regulate use of air cannons.
Any locality may by ordinance prohibit or regulate the use within its jurisdiction of certain devices, including air cannons, carbide cannons, or other loud explosive devices which are designed to produce high intensity sound percussions for the purpose of repelling birds. Such ordinance may prescribe the degree of sound or the decibel level produced by the cannon or device which is unacceptable in that jurisdiction.
In adopting an ordinance pursuant to the provisions of this section, the governing body may provide that any person who violates the provisions of such ordinance shall be guilty of a Class 3 misdemeanor.
Meeting with Virginia Association of Counties, Joe Lerch
November 5, 2024
During my zoom “meeting” with Mr. Lerch, I learned that, like the VML, VACO is not in a position to either support or oppose our planned 2025 legislation seeking local authority to prohibit/regulate gas-powered leaf blowers as there is nothing in the VACO policy document for 2025. Normally, policy questions are introduced in the May timeframe via 13 regional meetings followed by discussion in subject matter committees in August and adoption of the policy document at the annual conference of VACO Board members scheduled for November. All Arlington County Board members and all Fairfax Board of Supervisors are members of the VACO Board. Next spring we can work on getting in the VACO policy document for the 2026 General Assembly. The likely committee for our issue would be the Environment, Energy, and Land Use Committee. For example, the current policy document regarding environment etc. supports efforts by counties to conserve trees/tree canopy, without getting into specifics about how that would be done.
Lerch was not familiar with the Miyares opinion on Alexandria’s noise ordinance so I sent him both the Miyares letter and the original Jamie Conrad background memo from the QC NOVA Alexandria group outlining how the current ordinance could be amended using existing authorities.
He suggested exploring how the issue of “fugitive emissions” might be used in support of our issue. The VA Dept. of Environmental Quality looks at monitoring these emissions with respect to power plants and the like. He also recommended checking if the Garden Clubs of Virginia might be enlisted in support of our issue. And he commended the work of entomologist Dr. Art Evans who had a program called “What’s Bugging You” about beetles and other insects, including the value of leaf litter.