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Flashcards in Local Government Law Deck (73)

What are the types of localities in Virginia?

  1. Cities
    • Population of 5,000 or more
    • Incorporated by a charter
    • Completely independent of counties
  2. Towns
    • Population of 1,000 or more
    • Incorporated by charter
    • Not independent of counties
  3. Counties
    • Unincorporated units of the state government


In Virginia, what is a municipal corporation?

Includes cities and towns, but not counties


What powers do localities have?

Dillon's Rule:

Only those expressly provided for in:

  • Charter
  • General statute


What are the most common powers that localities have?

  1. Tax (real property and local sales)
  2. Sue and be sued
  3. Contract
  4. Acquire, hold, and spend revenue
  5. Exercise eminent domain
  6. Borrow money and issue tax-exempt bonds
  7. Acquire, hold, and sell real and personal property


Can localities redelegate their powers?

Generally, no - elected officials cannot pass of their decision-making powers


What are the exceptions to Dillon's rule?

  1. Only a few cities have broad police powers (i.e., power to promote general welfare in ways not prohibited by state constitution or general statute)
  2. All localities can choose the method of impliementing authorized power as long as the method is reasonable


What is required before a locality can issue bonds?

Ballot vote or special hearing


What can bonds be issued for?

Generally only capital expenditures


What are the limits on general obligation bonds?

Cannot be issued in excess of 10% of the assessed value of real estate subject to tax in the locality


What are revenue anticipation bonds?

Bonds that are to be paid back from expected taxes already in place within a year

  • Not subject to 10% ceiling
  • Not subject to capital expenditures limitation


What are special fund bonds?

Bonds that will either be paid down:

  • Within five years
  • Directly from the project to be funded

Not subject to the 10% ceiling


What sort of taxes are localities prohibited from imposing?


Income taxes


How do localities impose license taxes?


Based on gross receipts from the activity

Although this seems like an income tax, it is distinct


What are ordinances?

What is a violation of an ordinance?

How are they adopted?

Local laws

Violations are usually misdemeanors

Must be adopted in public meetings, pursuant to FOIA


What are the requirements for a valid ordinance?

  1. Prior published notice
  2. Majority vote
  3. Reasonably certain in application

Also subject to Dillon's Rule


How do you challenge an ordinance?


  1. Wait until fined and raise as a defense
  2. File complaint for declaratory judgment


What are the grounds for invalidating an ordinance?

  1. Not adopted properly
  2. Unconstitutionally vague
  3. Arbitrary (i.e., futile) or discriminatory
  4. Beyond powers of locality (i.e., Dillon's Rule)
  5. Preempted by federal or state law


What are the grounds for preemption of a local law in Virginia?

  1. Local law is expressly prohibited by Virginia Assembly
  2. Local law is inconsistent with state law:
    • State prohibits practice, locality authorizes it
    • State authorizes practice, locality prohibits it

But if the state just "occupies the field" locality may regulate it so long as it is possible to comply with both



What gives localities the power to regulate land use?

Police power


What are regulations of land use called?

Zoning regulations


What are the components of a zoning regulation?

The following must be updated every 5 years:

  1. Zoning ordinance
  2. Map with designated growth areas


Who are the regulatory actors with respect to zoning?

  1. Zoning administrator
    • Person(s) who enforce zoning regulations
  2. Board of zoning appeals (BZA)
    • Quasi-judicial body that grants:
      • Variances
      • Special use permits
  3. Planning commission
    • Group that conducts hearings as to comprehensive plan updates
  4. Governing body (i.e., city or town council, or county board of supervisors)
    • Takes final action on comprehensive plan amendments after a public hearing


What is a variance?

What is a special use permit?


  • Exception from normal zoning requirements

Special use permit

  • Allows a landowner to conduct an activity that is permitted only under certain circumstances


How do you appeal a decision of the zoning administrator?

File notice of appeal with BZA within 30 days after decision (not necessarily written confirmation)


When can the BZA authorize a variance?

Must be demonstrated that:

  1. Strict enforcement will cause individual undue hardship
  2. Variance will not be detrimental to other property


When is a proffer used?

In applying for a special use permit; once accepted, these self-imposed limits are grounds for stopping the project


Can a county outlaw subdivisions?

No, and localities must regulate subdivisions


What is the presumption with respect to subdivision decisions?

How do you appeal?

They are presumed correct

Appeal within 60 days after written denial


What is the effect of grandfathering zoning ordinances?

What will preclude grandfathering?

Pre-existing uses that once were valid but are now prohibited are called lawful non-conforming uses

2 years of disuse will preclude grandfathering


If a zoning ordinance changes, can a landowner still develop based on the prior ordinance?

Generally no - there is no such thing as vested rights


  • Investment in reliance on significant government action
    • Requires:
      • Significant affirmative act
      • Reliance in good faith
      • Extensive obligations or expenses



For purposes of vested rights, what are examples of government acts?

  1. Acceptance of proffer
  2. Approval of application
  3. Grant of special use permit
  4. Approval of variance
  5. Approval of preliminary plan
  6. Approval of final plan
  7. Issuance of final written order


How do you appeal a BZA decision?

  • File petition for writ of certiorari
  • In Circuit Court
  • Within 30 days after decision


When will a Circuit Court be justified in granting certiorari on appeal of a BZA decision?

  1. Error of law
    • BZA applied incorrect legal rules
  2. Error of fact
    • BZA was wrong as to:
      • Fact-finding
      • Sufficiency of facts
        • Burden of preponderance of evidence


What is spot zoning?

Amending the zoning ordinance and imposing a more or less restrictive ordinance one just one or two parcels



What can the P and D argue in response to spot zoning decisions?

P - there was no changes sufficient to justify the re-zoning

D - prior zoning was mistaken or circumstances changed


What is the standard of review on spot zoning issues?

If the matter is fairly debatable (i.e., at least some evidence in favor of local body), the decision will not be disturbed


What happens when a locality contracts beyond the scope of its power (i.e., Dillon's Rule)

This is called ultra vires and is unenforceable


What is the rule with respect to local government officials and apparent authority?

There is no doctrine of apparent authority with respect to local government officials

In order to bind the local government, officials must have express authorization


How do FOIA requests work?

  1. File request in any written format
  2. Response must be made within 5 business days:
    • Records will be provided
    • Records will be witheld because release prohibited
    • Records will be provided in part because some release prohibited
    • Records could not be found or don't exist
    • Records cannot be released within 5 days


What happens if the local government fails to respond to a FOIA request within the required time period?

This is deemed an automatic denial and is a violation of the Code


How are exemptions from FOIA requests construed?


Burden of proof is on local body to establish exemption by preponderance of the evidence


What are the two categories of records that must be released pursuant to FOIA?

  1. Contracts between public body and its officers or employees
  2. Non-exempt portions of reports of consultants hired by public body


Under FOIA, how is public business supposed to be transacted?

In open meetings, unless:

  • Closed or executive session
    • Requires prior affirmative vote in open meeting:
      • Identifying subject matter
      • State purpose
      • Referring specifically to FOIA exemption for closed meetings
    • Requires immediate subsequent open meeting:
      • Confirming that closed meeting was appropriate under FOIA
      • Taking any votes necessary for issue


How are FOIA requirements enforced?


Any failure to follow established procedures is presumed to be a violation

Burden is on public body to show it was not a violation


If someone alleged a violation of FOIA, can they receive recover their costs and attorney's fees?

Yes, if they substantially prevail


Can the government charge anything for FOIA requests?


  1. Copying or printing charges
  2. Cost of searching for records
  3. Cost of analyzing records


Can a county be sued in tort?

No. Counties are absolutely immune from liability in tort


What is the Virginia Tort Claims Act?

How does it relate to tort claims against localities in Virginia?

Virginia Tort Claims Act

  • Waives sovereign immunity of Commonwealth for tort claims within certain limits

NOT APPLICABLE to localities


Can a county be sued on contract or equitable claims?

Yes, subject to the following procedures:

  1. Presentment
    • Claim must be presented to the governing body so they may allow or disallow the claim
  2. Appeal period
    • If governing body disallows claim, file notice of appeal to both:
      • Clerk of county
        • 30 days after disallowance
      • Circuit court
        • 60 days after disallowance


Can a city or town be sued in tort?

Only for governmental functions:

  • Police forces
  • Fire departments
  • Public educational facilities
  • Garbage removal services
  • Emergency response to hurrican damage
  • Operation of jails
  • Hospitals and nursing facilities
  • Design and layout of roads
  • Maintenance of traffic lights


What are proprietary functions of cities and towns?

  • Road maintenance (but not design)
  • Provision of utilities
  • housing authorities


How do you determine whether a function is governmental or proprietary?

It is governmental if it involves policy, legislative, or discretionary authority

It is proprietary if it involves the maintenance or operation of services


What is an activity has both governmental and proprietary functions? Does the locality enjoy sovereign immunity?

Yes, the governmental aspect prevails


How do you determine if an officer and employee of the city enjoys sovereign immunity?

  1. Is the locality immune?
    • If no, the employee is not either
    • If yes, move on
  2. Should the employee share immunity?
    • If top level employee (i.e., governor, mayor, CEO)
    • If low level employee
      • Four-factor test (if yes, closer to immunity)
        1. Is nature of the action public?
        2. Was government interested and involved?
        3. Did government exercise control?
        4. Did act involve discretion?


Do school boards, administrators, teachers, and bus drivers get sovereign immunity?

Yes, by statute


What is the rule with respect to immunity of recreational facilities?

Cities and towns are immune from liability in operation of recreational facilities unless:

  • Gross or wanton negligence

Note: if activity is arguably related to the operation of the recreational facilitiy, apply this (e.g., trash truck)


What is the rule with respect to immunity for doctors?

Apply the four-factor test

But probably not immune if they can:

  • Set their own fees
  • Collect their own fees
  • Choose patients
  • Choose treatments


What is the rule with respect to immunity for employees driving emergency vehicles?

If driving in an emergency situation, immune

If driving in a non-emergency situation, not immune


In Virginia, what sort of claims will not be precluded by sovereign immunity?

  • Gross negligence
  • Intentional tort (willful or wanton conduct)

But the locality itself may not be sued for the gross negligence or intentional torts of employees


What is the notice requirement for negligence cases against counties, cities, and towns in Virginia?

In a negligence case, the plaintiff must provide notice to the locality within 6 months after the cause of action arose, otherwise liability is barred

Statute requires strict compliance - i.e., notice must be directly given to either:

  • County, town, or city attorney
  • Mayor
  • CEO



What is the rule with respect to nuisance claims against localities?


  • Absolutely immune

Cities and towns

  • Created during authorized activity
    • Must show negligence
  • Created during unauthorized activity
    • Must show situation was dangerous

Note: because negligence plays a role here, 6-month notice requirement applies


Do statutes of limitations apply to localities' claims?



Can equitable defenses be raised against localities?

No - e.g., locality cannot be estopped from bringing claim because of prior actions or statements to parties


What are the requirements for a locality to exercise eminent domain?

  1. Public need for property declared in resolution or ordinance directing condemnation
  2. Condemnor made good faith offer to purchase which property owner declined


What uses qualify as public uses?


  1. Use by public
  2. Public facilities - e.g., airports, jails, etc.
  3. Use by utility or railroad
  4. Elimination of blighted property that is dangerous
  5. Owner of property agrees to acquisition


What are other limitations on condemnation?

  1. Public interest must predominate over private gain
  2. Primary purpose cannot be:
    • Financial gain
    • Increase tax base
    • Create more jobs
    • Economic development


When a locality acts to eliminate a public nuisance (i.e., dangerous condition) is compensation required to the owner?

No, because it is not a taking


What happens if a property owner declines the locality's good faith offer to purchase?

Condemnation proceeding must be brought in circuit court where property is located


What is the measure of recovery for a property owner whose property is condemned?

FMV before the taking, plus:

  • Lost profits
    • For up to three years if:
      • Property was for a business or farm
      • Other steps could not be taken to avoid loss
  • Lost access
    • Loss in value of remaining property due to lost access (you look at FMV before and after)
  • Lost development rights
    • Any development rights that would have been available before condemnation



What is the name of property that is leftover after condemnation?



What do you call the fact-finders in a condemnation proceeding?

Jurors or commissioners


What is inverse condemnation?

When property is taken indirectly

E.g., storm drain erected to spew water onto your property

This is based on 5th Amendment takings clause

Recovery is reduction in value of property


What is required for a municipal corporation to sell or lease public property?

3/4 vote of governing body

Leases are limited to 40 years