VA - Local Government

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richardlpeterson
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128058
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VA - Local Government
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2012-01-15 20:35:32
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VA - Local Government
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  1. General Topis
    • 1. Types of localities in VA
    • 2. Powers of local govts
    • 3. Validity of ordinances
    • 4. Land use regulation (zoning)
    • 5. Sovereign immunity
    • 6. Property transactions
  2. Types of Localities
    • Counties
    • Cities
    • Towns
    • Special purpose municipal-level entities
  3. Locality
    cities, towns, counties
  4. Municipal Corporation
    cities and towns, BUT NOT counties
  5. Counties
    • unincorporated governmental districts of the Commonwealth (CW) created for the convenience of the sovereign
    • viewed as units of state govt
    • the entire state is divided into counties
    • provide a broad range of services
  6. Cities, Towns, and Other Municipal Corporations
    • Corporations created to serve the interests and needs of particular populated areas
    • given governmental and business powers and privileges w/in defined boundaries by charter provisions and Code sections
  7. Cities
    • communities w/in a defined boundary
    • with a population of 5,000 or more
    • incorporated by a charter approved by the legislature
    • cities are completely independent of coutnies
    • full range of services provided
    • may negotiate with county in which it is located to provide common services
  8. Towns
    • more limited incorporated communities w/in a defined boundary
    • population of 1,000 or more
    • Towns are not independent from the county in which they are located
    • residents are subject to county taxes and ordinances
    • typically the county provides services like schools
    • towns may exercise zoning and other powers w/in their boundaries
    • towns that grow may apply to legislature to become cities with independence and taxing powers
    • cities that wish to give up some responsibilities may apply for permission to "revert" to town status
  9. Powers of Local Governments
    General Rule
    • No Powers Unless Conferred in the Charter
    • no existence and no rights prior to organization, so no inherent powers
    • nature, number, territory, and duration of powers must be expressly provided in the legislatively enacted charter for the locality or in general statutes conferring powers on localities in VA
    • each charter is different
  10. Powers of Local Governments
    Typical Powers
    • To tax (normally, real property, or local sales taxes);
    • To sue and be sued;
    • To enter into contracts;
    • To acquire, hold, and dispose of its revenue;
    • To exercise eminent domain;
    • To borrow money and issue tax-exempt bonds; and
    • To acquire, hold, and dispose of real and personal property
  11. Dillon's Rule
    a locality can exercise only those powers granted expressly by statute or charter and no other powers, unless necessarily implied in or incident to the powers expressly granted, or unless the implied power is essential and indispensable to the declared purposes for creating the locality
  12. Dillon's Rule
    Choice of Methods
    where the legislature grants a local government the power to do somehting but does not specifially direct the method of implementing that power, the locality's choice of how to implement the conferred power will be upheld as long as the method selected is reasonable. Any doubt in the reasonableness of the method selected is resolved in favor of the locality
  13. Power to Incur Debt
    Procedure
    A ballot vote or a special hearing must be held before bonds may be issued by a locality. There is an optional declaratory judgment procedure to validate bonds
  14. Power to Incur Debt
    Limited Purposes
    Bonds (other than revenue anticipation bonds) may generally be issued only for capital expenditures
  15. Power to Incur Debt
    10% Limit on Amount of Debt -- Exceptions
    • No locality may issue general obligation bonds (debt) in excess of 10% of the assessed valuation of real estate subject to taxation in the locality
    • Exceptions:
    • "Revenue anticipation bonds": to be paid back from expected taxes already in place w/in one year (not subject to 10% obligation)
    • "Special fund bonds": to be paid down in 5 years or the payment of which will flow directly from the project to be funded (eg, revenues from a water supply plant to be built) (not constrained by 10% ceiling)
  16. Police Power
    • subject to normal consitutional limits on vagueness, taking of property and the like, in the exercise of its police power, the locality may adopt such rules and regulations as are reasonable and necessary for the protection of its inhabitants
    • almost unlimited
    • must relate to health, safety, morals, and welfare of the inhabitants of the state and must not be arbitrary, discriminatory, or unreasonable
  17. Taxation
    • power to levy taxes for public purposes
    • may not impose an income tax
    • mostly comes from property taxes
  18. Licensing
    • power to license any business, occupation, or acitivty
    • license taxes on gross receipts is distinct from an income tax
  19. Franchising public services
    power to authorize use of public property by utilities, taxis, cable tv, etc.
  20. VALIDITY OF ORDINANCES
  21. Ordinances as Local Legislation
    Requirements of valid ordinance
    • An ordinance is validly adopted if these three requirements are met:
    • 1. Published prior notice worded to alert the residents who will be affected;
    • 2. A majority vote of the governing body at public meeting; and
    • 3. the ordinance is reasonably certain in application (not vague)
  22. Presumption of Validity
    the validity of an ordinance is presumed and the burden, at all stages of court proceedings, rests on a party challenging the ordinance
  23. Challenging the Validity of an Ordinance
    • 1. Means of Raising a Challenge
    • Invalidity of a local ordinance can be raised as a defense to a violation charge. Also, a complaint for a declaratory judgment is one good way to challenge a local law. P needs a real interest.
    • 2. Grounds
    • An ordinance may be invalidated if
    • a. it was not adopted propertly (notice/vote); OR
    • b. it is unconstitutionally vague; OR
    • c. it is arbitrary or discriminatory (two things: 1) equal protection and 2) won't achieve goal b/c not reasonably calculated); OR
    • d. it is beyond the powers of the locality; OR
    • e. it is preempted by federal or state law.
  24. Preemption by State Statutes
    • State statutes may preclude the operation of local law uner the doctrine of preemption. While extensive state regulation is not by itself sufficient to preempt localities from acting in VA, two grounds for preemption do exist in VA:
    • 1. if the General Assembly (GA) expressly states that local regulation is forbidden, it is.
    • 2. if there is no express preemption statement, but the area is regulated by state statutes or regulations, then local ordinances are invalid if they are inconsistent with state law
    • Four inconsistency situations:
    • 1. state prohibition of activity - local authorization barred (eg, legalizing prostitution in a locality)
    • 2. state authorization of activity - local ordinance forbidding is preempted (void and unenforceable)
    • 3. state law silent - ordinance may regulate and prohibit a matter upon which state law is silet if w/in authorized powers of locality
    • 4. some state regulation - where state law regulates a topic, local ordinances may also regulate the topic (so long as local law is not inconsistent with state law); test is whether both state and local law can be complied with
  25. LAND USE REGULATION
  26. Zoning Power
    • authorized as part of police power
    • designed to stabilize property uses, conserve the value of property, devote areas to selective uses, and encourage the most appropriate use of land
    • Regulates height, open space, and "permitted uses"
    • A comprehensive plan composed of the zoning ordinance and a map with growth areas designated must be updated every 5 years
  27. Regulatory Actors
    Zoning Administrator
    • administers the regulatory scheme
    • enforcement officer
    • issues violation notices and prosecutes proceedings to compel compliance
  28. Regulatory Actors
    Board of Zoning Appeals (BZA)
    • quasi-judicial body set up by locality
    • commonly has authority to interpret the zoning ordinance, rule on appeals of actions by the zoning administrators, and grant an exception from normal zoning requirements (called a variance)
    • some localities the BZA is empowered to determine disputed property boundaries or to allow a landowner to conduct an activity permitted in that zoning district only under specificied conditions (called a special use permit)
  29. Regulatory Actors
    Planning Commission
    an appointed group that conducts public hearings as to zoning ordinance and map amendments and makes recommendations to the governing body of the lcality. It advises those localities required to adopt and periodically update comprehensive plans.
  30. Regulatory Actors
    Governing Body
    • city or town council or county board of supervisors
    • takes final action on the comprehensive plan, zoning ordinance or map amendments after conducting its own public hearing
    • passage or refusal to pass a zoning plan, ordinance, or amendment may be challenged in court w/in 30 days
  31. BZA Review Proceedings
    Appeals TO the BZA
    • BZA may hear and decide appeals from orders, interpretations, decisions, and determinations made by administrative officersin the administration and enforcement of the zoning scheme
    • can be taken by aggrieved person, officer, or dept affected by a decision of the zoning administrator
    • notice of appeal must be given to the administrator and the BZA w/in 30 days after the decision being appealed to the BZA
  32. BZA Review Proceedings
    Variances
    • BZA may authorize variance if 1) strict enforcement would result in undue hardship, not shared by other properties in the zoning district and vicinity, and 2) that granting of the variance will not be detrimental to adjacent property or change the character of the district
    • BZA may impose conditions in granting variances
    • usually deal with lot shape, road frontage, or square footage requirements
    • not freely given; strong policy to apply the same zoning standards to all landowners in the locality
    • unless denial of the variance denies the landowner of all possible use of the land, amounting to confiscation in violation of Due Process, a variance should not be issued
  33. Conditional Zoning
    • applicant may seek a conditional use permit to undertake a particular form of development or use of the property
    • if not granted outright, applicant may submit written proffers of conditions in an effort to make the proposal palatable to the locality
    • proffers may include self-imposed limits on the development or other inducements to the locality
    • buying a variance
  34. Mandatory Regulation of Subdivisions
    • localities must regulate subdivisions
    • must include basic provisions including content and filing of plats, drainage and flood control, road and drainage construction, coordination with existing streets, creation of public rights of way, conveyance of shared easements for utlities, and division of lots b/t family members
    • Localities cannot outlaw all subdivisions (no moratorium on development)
    • locality may include optional provisions including variance provisions, public sewage disposal plans, road paving standards and funding, and off-site road improvements
    • actions approving or rejecting proposed subdivisions are presumed correct.
    • if approval is deneid, an applicant may appeal by petition to the court w/in 60 days after the written denial
  35. New Zoning Ordinance Provisions
    Grandfathering of Uses in Place Before the Change
    • lawful nonconforming uses: lots, activities, or signs that preexisted the current zoning ordinances and do not meet current standards
    • grandfathered: may continue but can't be enlarged, structurally altered, rebuilt after substantial destruction, or resumed after abandonment.
    • Two years of disuse treated as abandonment
    • Nonconforming uses are disfavored
  36. New Zoning Ordinance Provisions
    Development Plans
    • Almost no such thing as vested rights
    • a landowner has no vested rights to develop land in accord with prevailing zoning, and a change made by the locality will be binding
    • Exception: for investment in reliance on a significant governmental action affecting development rights; 1) the locality makes a significant affirmative act supporting a planned use, 2) the landowner relies in good faith, and 3) incurs extensive obligations or substantial expenses in diligent pursuit of specific project.
    • Examples of affirmative governmental act:
    • 1) governing body has accepted proffers or proffered conditions which specify use related to a zoning amendment;
    • 2) the governing body has approved an application for a rezoning for a specific use or density;
    • 3) the governing body or BZA has granted a special exception or use permit with conditions;
    • 4) the BZA has approved a variance;
    • 5) the governing body has approved a preliminary subdivision plat, site plan or plan of development of the landowner's property and the applicant diligently pursues approval of the final plat or plan w/in a reasonable period of time under the circumstances; or
    • 6) governing body has approved a final subdivision plat, site plan, or plan of development for the landowner's property
  37. New Zoning Provisions
    Judicial Challenges AFTER BZA Decision
    • Court and Timing: party aggrieved by BZA decision may obtain review in circuit court w/in 30 days by filing a petition for a writ of certiorari
    • Procedure: circuit court may 1) review the record made before the BZA or other local governmental body, and 2) take testimony if necessary
    • Presumption and Grounds for Granting Writ: zoning laws and decisions presumed reasonable and valid; two bases for reversing local body 1) BZA applied incorrect legal rules or plaingly wrong; 2) petitioner uses administrative record or evidence to show that the decision was in error as to a) factfinding or b) the sufficiency of facts to standards (burden of proof is preonderance of the evidence)
  38. New Zoning Provisions
    Spot Zoning and Downzoning
    • actions amending the zoning ordinance and imposing on one or two parcels more restriction
    • locality's action is presumed reasonable
    • petitioner must produce some evidence that no changes sufficient for rezoning
    • then the local body may offer contrary evidence showing that prior zoning was mistaken or that circumstances have changed
    • factors: 1) whether the rezoning was at the locality's instance, 2) whether it affects only one or two parcels of land, and 3) whether the change restricts use of the targeted parcels more than any local "master plan" calls for
    • Standard of review: if the matter is fairly debatable then the locality's action won't be disturbed
  39. New Zoning
    Appeal
    • appeal may be sought to Supreme Court (to CAV) after circuit court's decision
    • through petition, not of right
  40. New Zoning
    Building Permits
    • issued routinely for a small fee
    • no BZA action required
    • normally required before structural changes
  41. CONTRACT AUTHORITY
  42. Power Must Be Shown
    beyond the scope of locality's power is "ultra vires" and unenforceable
  43. Where Manner of Contracting Prescribed
    • must follow process prescribed
    • if not followed then K held void unless the procedure was not mandatory
  44. Approval of Contacts and Actions of a Locality's Agents
    • parties must verify the nature and extent of the authority of its agents under local ordinances and board approvals
    • agents within the locality's powers are unenforceable if they have not been properly approved by vote of its governing body
    • "apparent authority" of a mayor or chief executive officer of a locality is not enough to create a binding contract
  45. SOVEREIGN IMMUNITY
  46. Claims Against Counties
    Tort Claims
    • counties are absolutely immune from liability in tort
    • VA Tort Claims Act wavies sovereing immunity of the CW, but does not apply to cities, towns and counties
  47. Claims Against Counties
    K and Equitable Monetary Claims Against Counties: "Presentment"
    • Presenting the claim: counties may be sued only in the manner and under the circumstances authorized; no action may be maintained against a county upon any claim or demand until the claim is presented to the governing body for allowance; if governing body refuses or neglects to act when given this opportunity to resolve the matter, then a lawsuit may be brought
    • 30-day claim period thereafter and 6-month outside limit: if the governing body disallows the claim, then claimant may appeal to CC w/in 30 days after notice of disallowance, but in no event after six months. Failure to allege presentment is demurrable. Not required for tax refund claims, suits for nonmonetary relief, or mandamus petitions.
  48. Tort Liability of Cities and Towns
    Sovereign Immunity Only for Governmental Functions
    • When acting w/in its public or government function, city or town enjoys sovereign immunity for claims arising from the acts or omissions of employees and agents
    • Areas:
    • police forces
    • fire departments
    • public educational facilities
    • garbage removal service
    • emergency response (cleaning streets) to hurricane damage
    • hospitals and nursing facilities
    • operation of jails
    • design and layout of roads
    • maintenance of traffic lights
  49. Tort Liability of Cities and Towns
    Proprietary Functions
    • promote the comfort, safety, and happiness of residents, much like a business corp., such as operation of a waterworks
    • These do not enjoy sovereign immunity in tort
    • Examples:
    • Road Maintenance: design is governmental function but maintenance is proprietary; liabile for failure to exercise reasonable and ordinary care to keep roads in a reasonably safe condition. must first have notice of the defect and sufficient time to remedy
    • Provision of public water, sewage, storm drainage, gas, and municipal electric power: RIL doesn't apply and proof of malfunction does not itself establish liability
    • Housing Authorities: deemed a proprietary function
  50. Tort Liability of Cities and Towns
    Explaining the Difference
    • function is governmental if it is the exercise of an entity's political, discretionary, or legislative authority
    • ministerial acts involving no discretion are proprietary
    • when the negligent act is one involving maintenance or operation of the service being provided, function is deemed proprietary
    • Whether in providing such services the governmental entity is exercising the powers and duties of govt conferred by law for the general benefit and well-being of its citizens
  51. Tort Liability of Cities and Towns
    Where Governmental and Proprietary Functions Coincide
    • if a function has both governmental and proprietary aspect, the government aspect prevails
    • as long as there is any meaningful govt function involved, the activity is immune from negl. liability
  52. Liability of Officers & Employees
    • Step One: Is the employing governmental unit immune? if not, workers cannot be immune; if so, then determine if individual entitled to share immunity
    • Step Two: Should the individual employee share the immunity?
    • 1. Top level people: automatically immune
    • 2. Lower level people: may be cloaked w/ immunity as to simple negl where interests ; 4 factor test
    • a. the nature of the function performed by the employee (public vs. private)
    • b. the extent of the governmental entity's interest and involvement in the function (does it matter tot he govt. in what manner the job gets done)
    • c. the degree of control and direction exercised by the governmental entity over the employee (more control makes it look more like a governmental activity that should be immune)
    • d. whether the alleged wrongful act involved the exercise of judgment and discretion (the more discretion we ask the employee to exercise, the more likely it is s/he should be given immunity)
    • Independent Contractors: not a regular employee but an indpendent contractor performing a specific task cannot claim sovereign immunity even if the employig locality is immune
  53. Special Situations
    School Boards, Administrators, Teachers, and Bus Drivers
    • school boards, principals, teachers and coaches are immune
    • bus drivers share board immunity
    • Insurance=exposure: in school bus accidents, if the board has any insurance for such claims, there is no immunity from liability up to amount of coverage
  54. Special Situations
    Recreational Facilities
    • municipality is liable only for gross/wanton negligence in the operation thereof
    • employee of a recreational coliseum driving a trash truck miles for the facility was engaged in immune activities
  55. Special Situations
    Doctor Cases
    • measured by the 4-factor test
    • depends on whether they can set and collect own fees, choose patients, and choose treatments
  56. Special Situations
    Police, Firefighter and Ambulance Cases
    • police chasing fleeing criminal engaged in governmental functions
    • same for firefighters and ambulances
    • BUT in nonemergency situations like ordinary traffic are not engaged in governmental pursuits
  57. Liability for Gross Negligence and Intentional Torts
    • Employee Liability: can be sued for gross negligence or intentional torts
    • BUT the locality cannot be sued directly
  58. Non-Immunity Aspects of Local Liability
    • notice in writing must be given to a designated officer of the locality within six months after the COA arises, unless the injury prevents the giving of notice
    • Notice must be to either: 1) county, city, town attorney, 2) to executive officer of the locality.Claimant bears the burden to show timely delivery.
  59. Nuisance Claims Against Cities or Towns (not Counties)
    • A city or town (but not a county) will be liable to the same extent as a private party for injuries resulting from the creation or maintenance of a nuisance, which can be ANY dangerous or hazardous situation
    • 1. Conditions created in authorized activity: can nonetheless be sued for nuisance if it negligently created the dangerous condition (eg, failure to put barriers around a deep excavation site during construction)
    • 2. Dangers created during unauthorized acitivity: liable if the activity causing the nuisance was unauthorized by law --simply upon a showing that any dangerous situation resulted (no negl showing req'd) (eg, local wind farm w/out GA authorization, any dangerous condition will give rise to laiblity)
    • 3. Notice Requirement Applies: six month notice reuqirement
  60. Calims by counties, cities & towns -- Defenses
    • localities can sue as Ps for tort or contract claims
    • SOL does run
    • equitable defenses may not be raised against the locality
  61. PROPERTY TRANSACTIONS
  62. Acquisition of Property
    can acquire property for public use both w/in and out corporate limits by purchase, gift, lese, bequest or condemnation
  63. Power of Eminent Domain
    • Two elements:
    • 1. There exists a public need for the property, which must be declared in the resolution or ordinance directing the condemnation; and
    • 2. The "condemnor", having made a good faith offer to purchase, can't agree with the owner as to the compensation to be paid to the owner
  64. Power of Eminent Domain
    • The GA has limited condemnation to projects qualifying as "public uses", and has defined these narrowly to include only 1) use by the public or apublic corporation; 2) public facilities (airports, libraries, jails); 3) use by a utility or railroad; 4) to eliminate a specific "blighted" property that has become a public safety dnager; or 5) where an owner of property located in a redevelopment or conservation area agrees to such acquisition.
    • No more property may be taken than the amount actually necessary to achieve the public purpose.
    • Except where property is taken for use by a utility company or a railroad right of way,
    • public interest must dominate over an y private gain, and
    • the primary purpose cannot be private financial gain or other private benefit, and
    • the primary purpose can't be to create an increase in the tax base or tax revenues or to create more jobs
  65. Condemnation Proceedings
    • condemnor must make good faith offer to purchase
    • court proceeding if rejected in CC where located
    • measure of recovery is FMV
    • if it is just a portion, what remains is the residue
    • factfinders can be called jurors or commissioners and are selected like civil jurors
  66. Indirect Taking of Property
    • owner may insitute an inverse condemnation claim by filing a proceeding to obtain a declaratory judgment or damages
    • based on 5th Amendment takings clause
    • no sovereign immunity against inverse condemnation claims
  67. Adverse Possession
    municipalities may obtain title to property through adverse possession
  68. Disposing of Public Property
    • right to sell or lease public property
    • sale must be based on an ordinance or resolution passed by 3/4 vote of the governing body of the municipality
    • leases of real property by a muncipal entity are limited to 40 years

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