Flashcards in Quick Local Government Deck (98):
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 VA?
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?
WHat are regulations of land use called?
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
In Va, what are the components of a zoning regulation?
The following must be updated every 5 years:
Map with designated growth areas
what are the regulatory actors with respect to Zoning, in VA?
1. Zoning administrator
- Person(s) who enforce zoning regulations
2. Board of zoning appeals (BZA)
- Quasi-judicial body that grants:
b) 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 required before a locality can issue bonds?
Ballot vote or special hearing?
What can bonds be issued for?
generally only capital ependitures
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 to 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
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
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
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
What are the types of localities in Virginia?
Population of 5,000 or more
Incorporated by a charter
Completely independent of counties
Population of 1,000 or more
Incorporated by charter
Not independent of counties
Unincorporated units of the state government
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:
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 P and D argue in response to Spot zoning
P - there was no changes sufficient to justify the re-zoning
D - prior zoning was mistaken or circumstances changed
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?
What is the standard of review on Spot Zoning issues?
If the matter is FAIRLY DEBATEABLE (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
Can localities re-delegate their powers?
Generally, no - elected officials cannot pass of their decision-making powers
How does FOIA 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
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 are exemptions from FOIA requests construed?
Burden of proof is on local body to establish exemption by preponderance of the evidence
What are the 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
How do you challenge an ordinance?
How do you challenge an ordinance?
Wait until fined and raise as a defense
File complaint for declaratory judgment
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
What powers do localities have?
Only those expressly provided for in:
What are the most common powers that localities have?
1 Tax (real property and local sales)
2 Sue and be sued
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 the government charge for FOIA request?
Copying or printing charges
Cost of searching for records
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
What are ordinances?
What is a violation of an ordinance?
How are they adopted?
Violations are usually misdemeanors
Must be adopted in public meetings, pursuant to FOIA
Can a county be sued on contract or equitable claims?
Yes, subject to the following procedures:
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
60 days after disallowance
Can a city or town be sued in Tort?
Only for governmental functions:
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 propietary functions of cities and towns?
Road maintenance (but not design)
Provision of utilities
How do you determine whether a function is governmental or propitary?
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
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?
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
What is the rule with respect to nuisance claims against localities?
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 SoL apply to localities claims?
Can equitable defense 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?
Use by public
Public facilities - e.g., airports, jails, etc.
Use by utility or railroad
Elimination of blighted property that is dangerous
Owner of property agrees to acquisition
What are other limitations on condemnation?
Public interest must predominate over private gain
Primary purpose cannot be:
Increase tax base
Create more jobs
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 localities 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:
For up to THREE YEARS if:
Property was for a BUSINESS OR FARM
Other steps could not be taken to avoid loss
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 the property that is left over after condemnation?
What do you call the fact-finders in a condemnation proceeding?
jurors or commisioners
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
How do localities impose license taxes?
Based on gross receipts from the activity
Although this seems like an income tax, it is distinct
In VA what is a municipal corporation?
Includes cities and towns, but not counties
There is a rebuttable presumption that the BZA _________
What are the requirements for governmental meetings and decisions?
Agenda materials for a meeting must be made available for public inspection at the same time they are furnished to the members of the public body.
No legal action may be maintained against a county on a contract claim until_________
the claim is formally presented to the governing body and rejected by it.
Sovereign Immunity protects cities and towns when they are_____
Performing an activity which is partially governmental. Lacks immunity when performing mere proprietary activities
In Va, A locality’s operation of a facility does not constitute a nuisance unless done in a __________
For eminent domain in local government, The public purpose for taking private property must be __________
expressly stated in a resolution or ordinance duly adopted by the local governmental body.
Before a governmental body may condemn property, the following preliminary requirements must be met______
The city, county, or town must pass a resolution that clearly and expressly states what public purpose justifies the taking of a private landowner’s property.
To resolve condemnation claims in VA, the condemnor’s offer to purchase the property is not accepted, the governmental body must________
bring a court proceeding to acquire the property.
In a VA condemnation trial, damages are determined by the _______ of the property taken as of the day prior to the condemnation.
Fair Market Value
A locality may exceed the debt ceiling if it issues a_____________ that will be paid off by expected tax revenues within _______
revenue anticipation bond; One year
What percentage of the qualified voters of any territory adjacent to a city or town may petition the circuit court to be annexed to the city or town?
What are the requirements for an ordinance to be deemed validly adopted by VA locality?
1) prior published notice about the proposed ordinance, worded to alert the residents who will be affected.
2) Governing body adopted it by a majority vote of the governing body at public meeting
3) the ordinance is reasonably certain in application
What do you have to show to get a variance in VA locality?
granting the variance would ALLEVIATE A HARDSHIP due to a physical condition on the property that existed when the ordinance was made; and granting the variance will NOT BE DETRIMENTAL TO NEIGHBORING PROPERTIES
Test for whether an ordinary worker for a local gov can get the benefit of sovriegn immunity from suits for negligence looks at these factors:
1) the government nature of th activity the worker was engaged in
2) whether it is important to the local governement that the activity be conducted in a particular fashion
3) whether the gov has a prescribed means for doing the activity
4) whether the worker was required to exercise discretion or judgment in completing her duties
What are the specific notice requirements for a P injured by municipal corporation?
injured party must give DETAILED NOTICE of TIME, PLACE and NATURE OF ACCIDENT to a CITY OFFICIAL within 6 MONTHS of the accident.
*Strictly construed after 2007 and mandatory*
Under Dillon's Rule, the county has only those powers 1) expressly granted by the ___________, 2) those powers ___________________ and 3) those powers that are ______________________.
1) STATE LEGISLATURE
2) fairly or necessarily implied from EXPRESSLY GRANTED POWERS
3) ESSENTIAL AND INDISPENSIBLE
What is it called when a municipality exceeds their powers?
Can municipal cities abate local taxes from a corporation to entice them to open a facility in their city?
No. Cities derive their power to tax only through positive grants of authority from the general assembly. Can’t abate taxes, because taxes must be uniform for the same class of subjects.
Can municipal cities offer general obligation bonds to finance interest free loans to corporations to entice them to open a facility in their city?
NO. Power to issue bonds is not inherently available to a local government; therefore the power must be delegated by the state.
No city may issue a general bond that exceeds 10% of the assessed valuation of the real estate subject to taxation (as shown by last preceding assessment of taxes.)
How is "Fair Market Value" determined for purposes of eminent domain?
the basis of the HIGHEST AND BEST USE of the property giving consideration to the property's SUITABILITY FOR ANY LEGITIMATE PURPOSE in light of the conditions that exist at the time of the taking or that reasonably may be expected in the near future.
In an eminent domain dispute, is the court bound by a city's determination that the taking was for public use?
No, this is a judicial question and reviewable by the courts.
Condemnation is precluded when a primary purpose would be:
1) PRIVATE FINANCIAL GAIN
2) PRIVATE BENEFIT
3) An increase in Tax base or tax revenues
4) An increase in Employment; OR
5) Economic Development
In eminent domain cases, VA courts are not bound by the the City's determination of FMV, if the owner makes a ______________, a jury will determine the issue of just compensation. If not, just compensation may be determined by the court on____________________OR-
1) on agreement of the petitioner and all parties involved
2) on motion of the petitioner if no owner of proper notice has appeared or responded
Are safety inspection, maintenance, and repair records public records pursuant to FOIA?