How do you challenge an ordinance: What is a “stay of enforcement?”

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Last updated: Nov 13, 2024

Context:  Commissioner Meeting Notes, Nov 6, 2024, 2:00 p.m., Amendment to Sign Ordinance
Two commissioners whose terms of office end in December voted to approve an amendment to a sign ordinance.  The amendment was passed despite the unanimous recommendation by the Area Plan Commission Not to approve it. A survey conducted by the APC and citizen input provided at commissioner meetings supported the  APCs recommendation not to approve.

How do you challenge a county government ordinance?

Out of curiosity, I started researching options (starting with ChatGPT (AI) that citizens may have when they oppose an ordinance. The county attorney can help clarify the options citizens have when they oppose a change.
 
    • If you have a good process for a change from idea to development to approval and acceptance, then you can repeatedly do those things that will lead to community support for a change. The process should be documented and considered a Standard Operating procedure (SOP).  An SOP can include internal controls – a checklist that identifies the critical tasks and timeline that must be performed to ensure success and prevent failure.
 

ChatGPT

Challenging a county government ordinance involves a legal process where an individual, group, or entity argues that the ordinance is invalid or unconstitutional. Here are the general steps for challenging a county ordinance:

1. Review the Ordinance

  • Understand the Ordinance: First, thoroughly review the text of the ordinance to understand its provisions and the grounds on which it might be challenged. It’s important to determine if the ordinance violates any higher laws, such as the U.S. Constitution, state constitution, or other laws.

2. Determine Grounds for Challenge

  • Constitutional Violations: One of the most common reasons to challenge an ordinance is that it violates constitutional rights, such as freedom of speech, equal protection, or due process.
  • Preemption: If the ordinance conflicts with state or federal law, it may be preempted (overridden) by those higher laws.
  • Improper Enactment: If the ordinance was not passed according to proper legal procedures, such as public hearings or required votes, it may be challenged on procedural grounds.
  • Vagueness or Overbreadth: If the ordinance is unclear or too broad in scope, it might be challenged for lack of clarity or specificity.
  • Excessive Delegation of Authority: If the county government exceeds its authority or delegates too much power to a body or official, that could be another basis for a challenge.

3. Exhaust Local Remedies (If Applicable)

  • Petition the County: Before moving to court, some jurisdictions require residents to first address the issue with the county’s governing body (such as the Board of Supervisors or County Commissioners). This could involve submitting a petition, presenting a formal objection, or attending a public meeting.
  • Engage in Public Advocacy: You can attempt to convince local lawmakers to repeal or amend the ordinance before pursuing legal action.

4. Consult with an Attorney

  • Legal Advice: Consult with an attorney experienced in constitutional law, municipal law, or administrative law to assess the strength of your case and guide you through the process. A lawyer can help determine if the ordinance is indeed unlawful and provide strategic advice.
  • Class Action or Community Support: In some cases, an individual challenge might be more effective if supported by a broader coalition or class action, especially if the ordinance affects a large number of people.

5. File a Lawsuit

If informal remedies do not resolve the issue, the next step is to file a lawsuit in court. The steps generally include:

  • Jurisdiction: Determine which court has jurisdiction over the case. In most cases, challenges to county ordinances are filed in the county superior court or state court. If the issue involves a constitutional violation, a federal court might have jurisdiction.
  • Standing: You must have legal standing to challenge the ordinance, meaning you must show that you are directly affected by it. For example, you may live in the county, own property impacted by the ordinance, or have some other personal stake in the matter.
  • File a Complaint: The complaint should outline the legal basis for challenging the ordinance, including any constitutional or statutory violations, and request specific relief, such as an injunction or declaratory judgment that the ordinance is invalid.

6. Preliminary Injunction (If Needed)

  • If the ordinance is already in effect and you believe it is causing harm, you can request a preliminary injunction to temporarily block enforcement of the ordinance while the case is being decided.

7. Court Process

  • Motion to Dismiss: The county government may file a motion to dismiss your challenge, arguing that your lawsuit should be thrown out. The court will review the legal arguments from both sides before making a decision.
  • Trial or Summary Judgment: If the case goes forward, there may be a trial or a motion for summary judgment, where the court will make a determination based on the law and evidence. For legal challenges, summary judgment (a ruling based on the law without a trial) is often sought.

8. Appeal (If Necessary)

  • If you lose the case in the trial court, you may have the option to appeal to a higher court. The appellate court will review the legal issues and decide if the lower court made errors in interpreting the law.

9. Other Legal Remedies

  • Petition for Repeal: In some cases, if legal action is not successful, residents may also attempt to organize a petition drive to repeal the ordinance or request that the local government reconsider the law. This could involve getting signatures from voters to force a referendum or ballot initiative.

Common Grounds for Challenging a County Ordinance:

  • Unconstitutional under state or federal law (e.g., violating due process, free speech, or equal protection).
  • Conflict with state or federal laws (i.e., the ordinance exceeds the county’s authority or is preempted).
  • Failure to follow required procedural steps (e.g., improper public notice, insufficient public hearings).
  • Vagueness or lack of clarity (i.e., the ordinance is unclear or overly broad, leading to arbitrary enforcement).

Conclusion

Challenging a county ordinance typically involves understanding the ordinance’s legal foundations, consulting with an attorney, and filing a lawsuit if informal methods fail. If successful, the court could declare the ordinance invalid or issue an injunction to block its enforcement.

What is a “stay of enforcement”?

ChatGPT

A “stay of enforcement” is a legal order that temporarily halts or suspends the enforcement of a judgment or court order. This means that any actions required to implement the judgment—such as collecting a debt, carrying out a penalty, or executing a decision—are put on hold for a specific period.

Stay of enforcement is often granted while an appeal is pending or when the party affected by the judgment requests more time to comply or to challenge the decision. In essence, it provides a temporary reprieve from the consequences of a court ruling.

For example, if a person loses a lawsuit and is ordered to pay damages, they might request a stay of enforcement to delay having to pay until they can appeal the decision.

 

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