Can a Virginia city use its zoning ordinance to ban advertising signs on bicycles or bike trailers ridden on public streets?

Plain-English summary

Delegate DeSteph asked whether Virginia Beach's zoning ordinance reached signs on bicycles and bike trailers ridden on public streets. The City had been treating those signs as zoning violations, citing the ordinance's general restrictions on signs in public rights of way and its provisions on signs displayed on motor vehicles. AG Herring said the zoning ordinance does not cover bicycles. Three reasons.

Zoning enabling statutes are about land use, not traffic or vehicles. Sections 15.2-2280 and 15.2-2286 of the Code authorize localities to regulate uses of land, sizes and heights of structures, lot dimensions, and excavation of natural resources. Nothing in the enabling statutes reaches the regulation of vehicles, bicycles, or traffic on public streets as such. A bicycle moving down the street is not a land use. The physical appearance of bicycles and their signage as they are ridden in public rights of way is not land use.

Dillon's Rule means doubt is resolved against local authority. Virginia local governments only have powers expressly granted, necessarily implied, or essential. Where there is reasonable doubt about whether legislative power exists, doubt goes against the locality. Here, the enabling statutes for zoning do not expressly or by clear implication reach signs on bicycles, so Virginia Beach loses on that theory.

The motor-vehicle sign provisions of the ordinance do not cover bicycles. Even though Virginia Beach's zoning ordinance has detailed rules for signs on motor vehicles, "motor vehicle" is defined by reference to Va. Code § 46.2-100, which limits the term to self-propelled vehicles. Bicycles, being human-propelled, are not motor vehicles for purposes of those provisions. The City's chapters that specifically address bicycles and vehicles in the City Code do not include sign provisions. The zoning ordinance was the City's only claimed source of authority, and it does not reach the case.

Police-power authority left open. The AG was careful to limit the opinion to the zoning theory. The City of Virginia Beach has general police power under § 15.2-1102 to regulate for the safety, health, peace, good order, comfort, and convenience of the City and its inhabitants. Elizabeth River Crossings v. Weeks and McMahon v. City of Va. Beach both confirm broad municipal police power. Whether the City could ban bicycle signs under that general police power (through a separate, properly drafted police-power ordinance, not the zoning ordinance) was not addressed.

Two carve-outs. The opinion explicitly does not reach signs on vehicles or bicycles parked on private property, or the parking and storage of vehicles, trailers, or boats on private property or public streets. Those questions would be analyzed differently.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Virginia zoning enabling statutes in Title 15.2, Chapter 22, have been amended several times since 2014. Virginia Beach's zoning ordinance may have been amended, and the City may also have adopted separate police-power ordinances addressing bicycle advertising. Anyone bringing or defending a similar enforcement action today should consult current state and local law.

Common questions

What is the difference between zoning and police-power regulation?
Zoning is a specific form of land-use regulation authorized by Title 15.2 Chapter 22. It divides a locality into districts, defines permitted and prohibited uses, sets dimensional standards, and regulates physical development of land. Police-power regulation is the broader municipal authority to legislate for public health, safety, peace, and welfare. Zoning is a subset of police power, but the enabling statutes for zoning are narrower than police power generally.

Can a city ban static advertising signs in public rights of way?
Generally yes, through ordinances expressly authorized by enabling statutes or police power. Virginia Beach's ordinance, for example, prohibits stationary signs placed in public rights of way (with exceptions). The opinion was specifically about signs on moving bicycles, not static signs.

What about signs on motor vehicles?
The zoning ordinance under review had separate rules for signs on motor vehicles (no driving for advertising purposes in residential subdivisions, prohibitions on flashing/changing signs visible from streets, size limits, permit requirements for large business advertising signs). Whether those rules are properly within zoning enabling authority is a different question. The opinion did not address them because the question was specifically about bicycles.

Why aren't bicycles "motor vehicles" for these purposes?
Section 46.2-100 of the Virginia Code defines "motor vehicle" as a self-propelled vehicle. Bicycles are propelled by human power, not by a motor. The opinion noted that Virginia Beach's own bicycle and motor vehicle chapters do not regulate signs at all, suggesting that the City had not previously treated bicycles as falling within its vehicle-sign regulatory regime.

Could Virginia Beach now adopt a police-power ordinance regulating bicycle signs?
The opinion did not decide that question. The general police power is broad, but it has limits (constitutional First Amendment protections, federal preemption, reasonableness). A municipality drafting such an ordinance would need to consider commercial speech doctrine and content-neutrality requirements as well.

Does this apply to e-bikes?
E-bikes have a definitional status under Va. Code § 46.2-100 that has changed over the years. As of 2014, an "electric power-assisted bicycle" was generally treated separately from "motor vehicle." Whether the analysis here applies to e-bikes today depends on the current definitional framework, which has been amended.

What about pedicabs or bicycle taxis?
The opinion does not address commercial conveyances like pedicabs or bicycle taxis specifically. Those may be subject to taxi or for-hire vehicle ordinances under separate enabling authority. The analysis here was confined to ordinary bicycles and bicycle trailers used for advertising.

Background and statutory framework

• Va. Code § 15.2-1102: General police-power authority of municipal corporations.
• Va. Code § 15.2-2280: Zoning enabling statute; regulates land use, structures, lot dimensions, mining.
• Va. Code § 15.2-2286: Permissible provisions in zoning ordinances.
• Va. Code § 15.2-2242(A)(4)(a): Traffic studies as a condition of subdivision approval.
• Va. Code § 46.2-100: Defines "motor vehicle" as self-propelled; defines "bicycle" as device propelled solely by human power.

The interpretive moves:

• Dillon's Rule means local zoning power exists only as far as enabling statutes reach.
• Enabling statutes are about land use, not vehicle or traffic regulation.
• A moving bicycle is not land use.
• Statutory definition of "motor vehicle" excludes bicycles.
• Local zoning ordinance cannot reach what enabling statutes do not authorize.
• Police-power authority is broader but is a different legal basis and was not at issue.

Citations

• Va. Code § 15.2-1102
• Va. Code § 15.2-2209
• Va. Code § 15.2-2280
• Va. Code § 15.2-2286
• Va. Code § 15.2-2242(A)(4)(a)
• Va. Code § 46.2-100
• Lamar Co. v. City of Richmond, 287 Va. 348, 756 S.E.2d 444 (2014)
• Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397, 463 S.E.2d 668 (1995)
• Elizabeth River Crossings v. Weeks, 286 Va. 286, 749 S.E.2d 176 (2013)
• McMahon v. City of Va. Beach, 221 Va. 102, 267 S.E.2d 130, cert. denied 449 U.S. 954 (1980)
• City of Virginia Beach, Va., Code of Ordinances, Appendix A, Zoning Ordinance §§ 212, 212.1, 212.2

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-050_DeSteph.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 20, 2014

The Honorable William R. DeSteph, Jr.
Member, House of Delegates
588 Central Drive
Virginia Beach, Virginia 23454

Dear Delegate DeSteph:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether the City of Virginia Beach has legal authority under its zoning ordinance to ban certain types of advertising on bicycles and bicycle trailers using public streets.

Response

It is my opinion that Virginia Beach does not have zoning authority to prohibit or otherwise to regulate advertising signs on bicycles or bicycle trailers using public streets. I express no opinion about whether Virginia Beach may impose such regulations under its police powers.

Background

You relate that Virginia Beach takes the position that advertising signs may not be displayed on bicycles or bicycle trailers being ridden in public streets or on sidewalks because such activity is in violation of the city's zoning ordinance.

The Virginia Beach zoning ordinance prohibits stationary signs placed in any public right-of-way, subject to certain exceptions,[1] and it also applies to signs on motor vehicles, with some of the restrictions varying by location. With respect to motor vehicles, the ordinance provides as follows:

(b) No motor vehicle shall be driven on any street within a residential subdivision for the purpose of displaying advertising, except as required by detour or upon order of a public safety employee of the city or state.

(c) The following types of signs shall be prohibited while the motor vehicle on which they are displayed is operated or parked on a public street or in such locations to be visible from the main traveled way of a public street:

(1) Flashing, pulsating or blinking signs;
(2) Signs in which the message displayed changes more frequently than once every four seconds;
(3) Electronic changeable copy signs, including signs containing light emitting diodes (LEDs), fiber optics, light bulbs or other illumination devices used to change the advertising displayed by such signs; and
(4) Signs that project more than one foot above the portion of the motor vehicle to which they are affixed or that obscure the vision of the driver of the motor vehicle or of other motorists.

(d) Any sign greater than fifteen square feet in area that is displayed on a motor vehicle for purposes of advertising a business other than that of the owner of the vehicle shall require an annual permit. . . .

(e) Violations of any provision of this section shall be punishable in accordance with section 104.

(f) For purposes of this section:
(1) "Motor vehicle" shall be defined in accordance with Section 46.2-100 of the Code of Virginia or any successor statute, and shall also include any trailer or other vehicle drawn by or affixed to a motor vehicle . . . .[2]

The zoning administrator is authorized to remove signs that are in violation of this ordinance,[3] and a violation is made punishable initially by fines, and also as a criminal misdemeanor if there are repeated offenses resulting in a fine of $5,000 or more, or when the illegal sign causes injury to any person.[4]

The statutory definition of "motor vehicle" referred to in the City Code does not include bicycles.[5] Although the City Code includes a chapter dealing with bicycles, that chapter does not contain any sections related to signs on bicycles.[6] To the same effect, the City Code also has a separate chapter dealing with motor vehicles, but it does not contain any sections related to signs on vehicles, be they motor vehicles or bicycles.[7] Thus, Virginia Beach's claimed authority to regulate signs on bicycles resides solely in its zoning ordinance.[8]

Applicable Law and Discussion

Local government authority in Virginia is determined by Dillon's Rule, which provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.[9] "If there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body."[10]

Here, Virginia Beach purports to regulate signs on bicycles through its zoning ordinance. Zoning ordinances, like all other local ordinances, are enacted pursuant to state enabling legislation, and therefore their permissible scope is limited to the extent authorized by statute. Accordingly, the Code of Virginia must be reviewed to determine the proper scope and limitations of Virginia Beach's zoning ordinance.

Section 15.2-2280 of the Code of Virginia authorizes the enactment of zoning ordinances for the purpose of regulating various aspects of land use. It specifically provides that

Any locality may, by ordinance, classify the territory under its jurisdiction or any substantial portion thereof into districts of such number, shape and size as it may deem best suited to carry out the purpose of this article, and in each district it may regulate, restrict, permit, prohibit, and determine the following:
(1) The use of land, buildings, structures and other premises for agricultural, business, industrial, residential, flood plain and other specific uses;
(2) The size, height, area, bulk, location, erection, construction, reconstruction, alteration, repair, maintenance, razing, or removal of structures;
(3) The areas and dimensions of land, water, and air space to be occupied by buildings, structures and uses, and of courts, yards, and other open spaces to be left unoccupied by uses and structures, including variations in the sizes of lots based on whether a public or community water supply or sewer system is available and used; or
(4) The excavation of mining of soil or other natural resources.

Section 15.2-2286 further establishes provisions that are permitted in zoning ordinances. The provisions are primarily procedural, but it is clear from the context that they all involve land use and the rights of real property owners. Nothing in this section reasonably can be interpreted as applying to the regulation of bicycles, motor vehicles, or traffic on public streets as such.[11] Various fines, but not incarceration, are authorized for enforcing violations of zoning ordinances.[12]

State enabling legislation for zoning ordinances makes clear that zoning power extends only to land use, not to traffic or vehicle regulation.[13] The physical appearance of bicycles and signage on bicycles as they are ridden in public rights of way is not land use. Therefore, I must conclude that Virginia Beach lacks authority to regulate signs on bicycles through its zoning ordinance.[14]

I additionally must note that the Virginia Beach City Charter does not grant Virginia Beach any additional powers that are relevant to this analysis, above and beyond those powers already granted by statutes of general application. I do note that Virginia Beach has general authority to adopt ordinances

which are necessary or desirable to secure and promote the general welfare of the inhabitants . . . and the safety, health, peace, good order, comfort, [and] convenience . . . of the municipality and the inhabitants thereof, and the enumeration of specific powers shall not be construed or held to be exclusive or as a limitation upon any general grant of power, but shall be construed and held to be in addition to any general grant of power.[15]

These powers are commonly referred to as "police powers."[16] While it is my opinion that, for the reasons discussed above, Virginia Beach does not have authority to regulate signs on bicycles through its zoning ordinance, I express no opinion about whether it may impose such regulations through its police power.

Conclusion

For the foregoing reasons, it is my opinion that Virginia Beach does not have authority under its zoning ordinance to prohibit or otherwise to regulate advertising signs on bicycles or bicycle trailers using public streets. I express no opinion about whether Virginia Beach may impose such regulations under its police powers.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] City of Virginia Beach, Va., Code of Ordinances, Appendix A - Zoning Ordinance § 212(c).

[2] Id., § 212.2.

[3] Id., § 212.1.

[4] Id., § 104(b).

[5] Va. Code Ann. § 46.2-100 (Supp. 2014) defines "motor vehicle" as "every vehicle ... that is self-propelled or designed for self-propulsion ... ," and it defines "bicycle" as "a device propelled solely by human power ...."

[6] City of Virginia Beach, Va., Code of Ordinances, Chapter 7.

[7] Id., Chapter 21.

[8] Chapter 3 of Virginia Beach's Code of Ordinances deals with commercial signs in public rights of way. It is assumed for the purpose of this Opinion that this Chapter is applicable only to signs at fixed locations, but not to signs on moving vehicles.

[9] Lamar Co. v. City of Richmond, 287 Va. 348, 352, 756 S.E.2d 444, 446 (2014).

[10] Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 670 (1995).

[11] The effect on traffic of a particular land use is one factor that may be considered in determining the land use, but that is not the same as purporting to regulate traffic per se, independent of any land use. See, e.g., Va. Code Ann. § 15.2-2242(A)(4)(a) (Supp. 2014) (authorizing traffic studies as a condition of subdivision approval).

[12] See § 15.2-2209 (2012) ($200 civil penalty for first violation, $500 for subsequent violations, cap of $5,000 for civil penalties, violation that causes personal injury or has fines in excess of $5,000 may be a criminal violation); see also § 15.2-2286 (Supp. 2014) (misdemeanor punishable by fines).

[13] The "Zoning and Planning" title in Volume 21 of Michie's Jurisprudence begins by saying, at page 403, "This title deals with the subject of the regulation of land use through zoning, planning, and the control of the subdivision and development of land." (emphasis added).

[14] This Opinion addresses only the question of whether signs on bicycles that are being ridden in public streets can be regulated through zoning. No opinion is expressed or implied about the ability of Virginia Beach to regulate signs on bicycles or other vehicles that are parked on private property, nor is any opinion expressed or implied about the ability of Virginia Beach to regulate the parking or storage of any type of vehicle, trailer, or boat on private property or on public streets.

[15] Section 15.2-1102 (2012). See also City of Virginia Beach, Va., Charter, § 2.01 ("General grant of powers").

[16] "Police power" is generally described as the sovereign power to enact laws to promote the health, peace, morals, education, and good order of the people. See Elizabeth River Crossings v. Weeks, 286 Va. 286, 321, 749 S.E.2d 176, 194 (2013). A local governing body must necessarily enjoy broad discretionary powers to protect the public health and general welfare of its residents. McMahon v. City of Va. Beach, 221 Va. 102, 267 S.E.2d 130, cert. denied 449 U.S. 954 (1980).