Virginia is a Dillon’s Rule state, meaning local governments may only exercise those powers expressly granted to them.
This includes the authority to construct war memorials, which was first granted to all Virginia counties in 1904 and then all localities (adding cities and towns) in 1997 through various versions of Va. Prior to the statute, localities were required to request a specific grant of authority—an Act of Assembly or Joint Resolution from the Virginia legislature—to construct such memorials.
Code § 15.2-1812 to be inapplicable, and solely consider the legality of the removal based on other possible restrictions (if any) in balance with the city’s affirmative defenses.
The ability of Virginian cities to create and remove memorials has changed over time and is limited, first and foremost, by Virginia’s adoption of Dillon’s Rule, an interpretive methodology for municipal authority which “limits the power of local governments to those expressly granted by the state or those necessarily implied or essential to express powers.” Thus, “[w]hen a local ordinance exceeds the scope of this authority, the ordinance is invalid.” Should it be reasonably unclear whether a locality, such as a city or county, has a power or not, “the doubt must be resolved against the local governing body.” In other words, if a city wants to create a memorial of any kind, it must first find the authority to do so in an existing state law or ask the state legislature for permission.
A proposed amendment sought to eliminate the key conditional, prospective phrase (“[i]f such are erected”) and added: “The provisions of this subsection shall apply to all such monuments and memorials, regardless of when erected.” While in all other renditions of the statute the restrictions on removal are tied to the grant of authority, this draft detached them from each other, giving the restrictive clause independent operation.
Such a sentence would effectively separate the removal restrictions from the general grant of authority.
Even if a court should find that the language of the statute is ambiguous or debatable, the court’s subsequent course of action is clear: without the language or intent being “manifest beyond reasonable question,” the court must find that the statute does not apply retroactively.
This limiting interpretation of the statute is further evidenced by the attempt of the Virginia General Assembly to enact a bill which explicitly extended the protections of the statute retroactively to war memorials built under other grants of authority.
The only restrictions on removal that are applicable to these pre-1997 monuments are those found within the original grant of authority, those imposed by localities on themselves, or the deeds associated with it—not Va. Only three authorities have directly weighed in on the question of whether Va.
Code § 15.2-1812 applies to memorials created in cities prior to 1997: the state circuit court for the City of Danville, the current Attorney General Mark Herring, and the state circuit court for the City of Charlottesville, respectively. For a more thorough discussion of municipal and state powers, see generally Richard C.