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6 PLANNING COMMISSIONERS JOURNAL / NUMBER 78 / SPRING 2010 PLANNING PERSPECTIVES Drafting Clear Ordinances: Do’s and Don’ts by Carolyn Braun, AICP Many planners spend a lot of time interpreting or explaining ordinances to citizens and those representing them. Unclear language in an ordinance provides an opportunity for both confusion and legal challenges. The best way to minimize this is by writing clear, readable ordinances. TIPS ON DEVELOPING ORDINANCE CONTENT 1. Be Able to Explain the Need Elected officials often suggest consid- eration of an ordinance based on what a neighboring community has adopted. Reviewing other community ordinances can be very helpful. Be cautious, howev- er, particularly if you are adopting a small section of that ordinance. Does the ordi- nance language you are “borrowing” include terms not defined in your own ordinance? Most importantly, be sure the ordi- nance you are drafting is tailored to meet your community’s concerns. You should be able to explain the need for the ordi- nance. That understanding will also lead to clearer interpretation and enforce- ment, and help ensure that your ordi- nance is legally defensible. 2. Make Sure You Have the Authority Before you go too far in drafting an ordinance, make sure you have the authority to enact it. Does it conform to state and federal law? Communities can- not adopt local ordinances that contra- dict explicit provisions of state or federal law. For example, in Minnesota there are specific provisions in state law requiring communities to allow state licensed resi- dential facilities. In some cases, the applicable “field of law” has been preempted by state law. For example, a state-adopted building code may preempt adoption of a local building code. In such cases, you do not have the authority to adopt regulations. Always check with your attorney. Adop- tion of an ordinance by another commu- nity does not guarantee that a similar ordinance will be legally defensible in yours. In some instances, state laws and rules can be adopted by reference, but there is a question whether any future amendments to the state law are then automatically incorporated into your previously adopted ordinance. One way to deal with this is to include the phrase “as may be amended from time to time” when you adopt an ordinance that refer- ences a state law or rule. 3. Discuss the Draft It’s good practice to discuss draft ordi- nance provisions in a work session (in most places, these must be noticed and open to the public). Planning commis- sioners can offer valuable insights and assistance, and should be involved in reviewing the draft. The meaning of the ordinance should be clear to them, not just to staff. Planning board members can also be asked to play devil’s advocate and thoroughly explore various possible interpretations of the draft. This extra time and work often pays off. If you know of any interested individ- uals or groups, ask them to participate. Consider how application of the ordi- nance will affect them. Are there any unintended consequences that may result from adoption of the ordinance? Get input from your town, city, or county attorneys’ office as early as possi- ble. At a minimum they need to review the draft before it is scheduled for public hearing. Finally, if there’s a public hearing before your local governing body, make sure the members have been briefed in advance and given a chance to provide their feedback. 4. Use a Check List Create a check list to review each draft. The check list should include tips from this article and the procedural requirements of your ordinance. 5. Proofread, and Proofread Again After reading several drafts of an ordi- nance, it becomes difficult to see errors in typing, numbering, or other items. It can be very helpful to have someone proofread who hasn’t been involved in the drafting. 6. Keep Good Records While communities often have a wide range of discretion in adopting local ordinances, they must also comply with procedural due process requirements. Often litigants will allege violations of due process when they challenge an ordi- nance. Documentation of compliance can reduce the likelihood of such litigation. It is also very helpful to record minutes from ordinance discussions that are held prior to the public hearing. This informa- tion provides background on the basis for the ordinance, and should be includ- ed in the public hearing staff report. TIPS ON THE MECHANICS OF DRAFTING AN ORDINANCE Ordinances – in particular zoning ordinances – can be lengthy documents. To improve readability, emphasis should be placed upon drafting a well-organized ordinance that uses plain, well-defined THE BEST WAY TO AVOID THE TIME AND EXPENSE OF A LAWSUIT IS TO MAKE SURE THAT ALL IMPORTANT TERMS ARE DEFINED AND EVERY DEFINITION IS CLEAR AND UNAMBIGUOUS.