Effective Ordinance and Resolution Drafting Spring 2011 Nicole Cottle West Valley City Nicole.cottle@wvc-ut.gov
Drafting in General Drafting ordinances and resolutions can be challenging because of the substantial and long lasting outcome of the rule of law or administrative direction that is set forth by these two instruments. REMEMBER Ordinances Set forth rules and regulations (law) Resolutions Provide administrative direction (policy)
STEP ONE Determine Proper Vehicle Ordinance or Resolution Governing body may pass any ordinances to regulate, require, prohibit, govern, control or supervise any activity, business, conduct or condition. (UCA 10-3-702) Governing body may exercise all administrative powers by resolution.. (UCA 10-3-717)
STEP TWO Conform to State Law Requirements Ordinances Form of Ordinance (UCA (10-3-704) Ordinance Number Title (indicating the nature of the ordinance) Preamble (states the need / background) Ordaining Clause (Be it ordained ) The body of the ordinance Penalty Effective Date Signature line for Mayor / Attest + City Seal
STEP TWO Resolutions (UCA 10-3-719) Resolutions shall be in substantially the same form as ordinances.
STEP THREE Preparing to Draft Understand your audience Council / Mayor / City Manager Does it meet their needs? Public Must be clear, concise and understandable Court Courts will interpret ordinances and resolutions in harmony with other related provisions. Courts will also consider the plain language of an ordinance.
STEP FOUR DETERMINE THE ISSUE (Who, what, when, where & why) What is the goal / issue to be addressed? To whom will the ordinance apply? What are the existing regulations and how will new provisions blend. Why is this ordinance or resolution necessary.
STEP FIVE STRUCTURE Determine location in municipal code. Determine how definitions will be handled. Check consistency with other laws, rules or regulations. Set forth elements of proof / specific standards. Set forth enforcement if applicable.
STEP SIX DRAFTING Definitions All important terms should be defined. Determining whether to define them in the ordinance or include them in a definition section is important. Defined terms should be capitalized throughout the ordinance. Definitions often make or break an ordinance. Do not leave important terms open for interpretation, define them how you desire that they be defined.
Step Seven Avoid Ambiguity What must be proved to enforce a provision? Examples Maintained their property or Maintained their property as provided in sections 27-3-2. Signage must be pleasing to the public or signage shall be no larger than 10 square feet and all materials shall comply with section 11-3-5. Be specific, don t leave anything open for interpretation, don t (or very rarely) leave anything to the discretion of another person.
STEP EIGHT STYLE CONSIDERATIONS Be Gender Neutral Use SHALL if it is required and MAY if it is permissive. Avoid the use of said or such to refer to something just mentioned (don t draft like a lawyer). Say what you mean, don t try to confuse the issue with flowery writing. Avoid opinion or subjective words (don t say property shall have adequate landscaping write objective standards)
STEP EIGHT STYLE CONSIDERATIONS CONTINUED Use short concise sentences. Use headings where appropriate to increase clarity. Use simple language like begin instead of commence, before instead of prior to, end instead of terminate. The idea is to write something anyone would understand in the manner you meant for it to be understood, not to write a treatise for the latest law journal. If possible write in the present tense with a positive voice. (This provision applies only to. not this provision does not apply to )
STEP EIGHT STYLE CONSIDERATIONS CONTINUED Be diligent in your drafting, don t assume that an ordinance you pulled from another website is appropriately written or even uses proper English. Have someone review your draft. Put your draft away for a day and go back to it and read it as if you are a citizen trying to determine what they have to do to comply. Or read it as if you are a council member preparing to pass it. Can you list the requirements for compliance? Is it understandable?
STEP NINE The best ordinances and resolutions are simple, straightforward, use plain English, set forth with clarity the requirements for compliance, do not give discretion, do not leave key terms undefined and are easily understood. Always draft with the thought in mind that what you put in that ordinance or resolution may really make a difference to your community and may be litigated. Remember ordinances can always be changed. If you don t get it right the first time. Change it!