Local gov Flashcards
four factors that a court considers in determining whether a government officer or employee is entitled to immunity:
1) nature of function
2) extent of government’s involvement in function
3) degree of control gov exercises over employee
4) whether act involved discretion of employee
Immunity does not apply to the performance of duties that do not involve
Judgment or discretion in their performance
When is city is protected from a tort action
When performing a gov function
Is collection of garbage a gov or proprietary function?
Gov function
when determining whether an ordinance is inconsistent with state law, a court is obliged to ___ if they can ____
Harmonize ordinance w state law if they can stand together.
What must local gov do Before the final authorization of the issuance of any bonds
hold a public hearing on the proposed bond issue
Is a public hearing on a bond issue required when the issue has been approved by voters?
No
A negligence claim against any local government is barred unless the claimant has
filed, with the proper designated officer, a written statement of the nature of the claim, including the time and place at which the injury is alleged to have occurred, within six months after the cause of action accrued
What is required for municipality/ town to sell a public place
The town council, with a quorum present, must vote in favor of the resolution
What is the standard for Local Gov in exercising their delegated powers?
Delegated powers must be exercised Reasonably and in accord w fixed, readily ascertainable standards
What must be done for a city to change its status to a town
governing body of the city (here, the city council) must pass an ordinance petitioning the circuit court for the change in status.
While local governments are authorized by statute to condemn private land for public use through the power of eminent domain, a local government generally may not
Acquire more property than necessary to achieve the public use
if the acquisition of only part of a condemned private property would leave its owner with an uneconomic remnant, local gov must
offer to acquire the entire property for its fair market value
How are zoning decisions of a local government classified?
Zoning decisions
party attacking the validity of a zoning decision has the burden of establishing that the decision was
Not reasonable
local governments are limited in their powers by
Dillon’s rule
Dillon’s rule
Strict statutory construction
localities, as agencies created by the Commonwealth, have no inherent power; all power must be (i) expressly granted by statute or charter, (ii) necessarily or fairly implied from those expressly granted powers, or (iii) essential and indispensable to the locality’s declared objectives and purposes.
Any power exercised by local government that has not been delegated by the state will be considered ____ in accordance w ___
Void in under Dillon’s rule
A corporation’s name must contain the word
“Corporation,
Company
Incorporated
Or an abbreviation thereof
In Virginia, in any proceeding brought by or in the right of a corporation or brought by or on behalf of shareholders of the corporation, there is a statutory cap on director liability that limits a director’s liability for money damages to the greater of
$100k
How can corporations reduce or eliminate liability if it’s directors/officers?
Through articles /bylaws
Inverse condemnation claim
Gov takes or damages private property for public use without paying just compensation
To prevail on inverse condemnation claim, P must prove
I) has property right
ii) property or right connected to property has been taken or damaged by gov
iii) taking was for public use
Iv) gov failed to pay just compensation
An abutter of public right away has right of
Ingress and egress
An abutting landowner’s right of access to public roadway is subordinate to
Police power of state to control and use street to promote public health safety and welfare
Does property owner have right to compensation if gov restricts right of access to property
Not unless gov’s unreasonably restricts access
Government function
action that municipality performs for health, safey and general welfare of the public; exercise of a municipality’s discretion, activties for the common good or in interest of public health and safety.
Proprietary functions
routine ministerial acts that involve no discretion…ongoing maintenance, operation and repair of utilities
initial placement of a new waterline/sewage system
gov function
City definition
independent incorporated community w over 5,000 citizens within its boundaries or became a city before jul1, 1971…
independent of county they are located in
Town
any town or incorporated community w over 1,000 or more citizens
To amend charter or receive new charter locality must
request general assembly to do so
locality must hold public election or public hearing
Incorporation by judicial proceeding
citiznes of a community may presenet a petition to the CC signed by 100 voters of communuty requesting community be incorporated as a town
how can cities and towns change their borders & by what % of approval?
anexation via local approval of 51% qualified voters or petitioning the CC or
B4 filing action w CC to annex territory, locality must first
notify Commission on Local gov and all govs located witthin or contingious to it re proposing annexation
To change from city status to a town ct must find
town has mim population of 5k ppl;
town as ability to function as independent city and is able to provide urban type services, incluidng independent school system;
best interest of parties and state;
change will not substantially impair ability of the county to meet the service neeeds of the remaining population
Dillon’s rule
rule of strict statutory construction holding that the local gov only has those powers expressly granted by charter, necessarily implied by those granted powers, or essential and indispensable to locality’s declared objectives and purposes
Dillon’s rule: any power exercised by local gov that has not been delegated by the state is
VOID
Dillon’s rule: any reasonable doubt concerning the existence of power is
resolved by cts against the local gov….no presumption that exercise of a power is valid….
Dillon’s rule: if no delegation from Commonwealth can be found to authorize local gov action, the action is
void
Dillon’s Rule: Reasonable Selection method Rule
when a power has been delegated but the manner of its execution has not been specified….locality has reasonable discretion as to manner in which power is executed
Powers delegated to a locality may only be re-delegated if
they contain fixed and readily ascertainable standards when nothing is left to discretion of the person or body charged w the power beyond reasonable discretion in the administration
Preemption
locality may not enact ordinance that is inconsistent w state law
If state statute and ordinance can stand together
cts are obliged to harmonize them, rather than nullify the ordincance.
State legislature may preempt an entire field of policy from local legislation, but it must do so ___
EXPRESSLY
Can an ordinance prohibit an act upon which state law is silent?
Yes
Can ordinance proscribe conduct already proscribed by state law?
Yes, when ordinance is not inconsistyent w state law
Dillon’s rule: enumerated powers
local govs have no enumerated powers; all authority must be delegated to them by the state
Examples of gov powers TYPICALLY granted by charter to govern and administer proper authority for a public purpose
i) Enact and enforce ordinances;
ii) Tax;
iii) Sue or be sued;
iv) Enter into contracts;
v) Acquire, hold, and dispose of revenue;
vi) Acquire, hold, and dispose of personal and real property;
vii) Condemn property through the use of eminent domain;
viii) Borrow money; and
ix) Issue tax-exempt bonds with interest.
Police power
municipalities power to secure and promote general welfare , health, safety of inhabitants…
Police power alllows municipal govs to
limit, regulate, or prohibit personal and commercial activity, w/o compensation, to promote public health, safety, general welfare…
Police power: abatement of public nuisance
SC has upheld use of police power to abate public nuisance
Cts will not interfere w gov’s use of police power UNLESS use is shown to be
Unreasonable or arbitrary
Municipal gov discretion to administer police powers
municipal govs have broad discretion to administer police powers….
Can local Gov close a Public Right of Way?
City , town, or cnty that receives highway maintenance funds may permit the temporary use and close the rights of way for public use and travel during temporary use
How is an ordinance enacted
majority vote of members of governing body who are present at a lawful meeting where a quorum is present
What must local gov do before enacting an ordinance?
publish notice in a newspaper that has general circulation in the county or town before enacting an ordinance unless….
the notice is an emergency ordinance, which can only be enforced for 60 days
Ordinance’s language requirement
must contain language that is clear, certain and definite so that average person may, after reading ordinance w due care, understand whether he will incur a penalty for his action or inaction
The object of every ordinance must be clearly expressed in __
Its title
EXCEPT WITH an ordinance approving a budget, an annual appropriation ordinance or an ordinance which codifies ordinances
Ordinance’s validty is
presumed…party alleging invalidity has burden of proof of showing clear and concing proof of its unreasonableness
Eminent domain
Local govs are authorized by statute to condemn private land for public use through power of eminent domain
Different types of property that governing body can acquire title to through condemnation0
i) land, buildings, and structures;
ii) easement thereover
iii) sand, earth, gravel, water or other necessary material for purposes of opening, constructing, repairing or maintining a road;
Locality may acquire property or property interests outside its boundaries by eminent domain only if
such authority is expressly conferred by general law or special act
Eminent domain: examples of public use
i) possession, ownership, occupation and enjoyment by the public or a public corp
ii) construction, maintenance, or operation of public facilities by a public corp (airports, schools, court, jails, libraries, parks, police, fire station, transportation facilities, bridges, mass transit, ports
iii) creation or functioning of any public service corporation or railroad
iv) provision ofany authorized utility service
v) elimination of blight, provided property itself is blighted property; or
vi) As part of a redevelopment or conservation area where the property is abandoned or where acquisition is needed to clear title where one of the owners agrees to such acquisition or the acquisition is by agreement of all of the owners.
Eminennt domain: property may onky be taken if
i) public interest dominates private gain; and
ii) primary purpose is not private financial gain, benefit, increase in tax bases or tax revenues, increase in employement or economic development
blighted property is
any property that endangers public health or safety in its condition at time of filing petition for condemnation and is a public nuisance or an individual commercial, industrial, or residential structure or improvement that is beyond repair or unfit for human occupancy or use
Emininemnt domain: amount of property gov can acquire
no more private property than is necessary to achieve stated public use
Eminent domain: if the acquisition of only part of a property would leave its owner with an uneconomic remnant, the local government must
offer to acquire enture property for its fair mrkt value as otherwise provided by law
The local government, however, must not acquire an uneconomic remnant if
owner obects and desires to maintain ownership of the excess property
Does gov need to pay just compensation for abatement of public nuisance?
No
Zoning decisions of a local gov are considered
legislative decisions and are presume to be reasonable and valid until highest ct to whcih the matter is appealed decides the issue
Party attacking zoning decision has burden of establishing that decision was
not reasonable…legislative decisions are considered reasonable if matter under consideration was FAIRLY DEBATED…. Fairly debatable issues are ones where objective and reasonable persons could come to different conclusions after reviewing the evidence offered in support of opposing views
Va law requires each govning body to adopt a comprehensive plan for
development of territyory within its jx, prepared by the local planning commission
What is zoning administrator’s duty
to enforce and administer zoning ordinances and bring legal action to ensure compliance w the ordinance
including the authroity to order the remedying of any condition found to be in violation of an ordinance
Aggrieved party must deliver notice of appeal to the administrator of tthe Board of Zoning appeals within
30 days of the decision
nonconforming use of zoning regulations may continue (i.e., be “grandfathered”) without penalty as long as the nonconforming use is not
i) enlarged, ii) structurally altered, iii) rebuilt after substantial destruction or iv) abandoned for more than 2 yrs
Variance of zoning law allows
an otherwise impermissible land use to exist
Variances may only be granted when, landowner upon application to BZA, shows that
i) Strict enforcement of the zoning ordinance would result in undue hardship not shared by other landowners; and
ii) The granting of a variance would not be substantially detrimental to other property.
Development rights become vested and will not be affected by a subsequent amendment to a zoning ordinance, when the landowner:
i) obtains the benefit of a significant affirmative governmental act
ii) relies in good faith on the act; and
iii) incurs extensive obligations or substantial expenses in diligent pursuit of the specific project in reliance on the significant affirmative governmental act
Requiring a building permit: governmental or proprietary act?
governmental capacity and gov is not estopped as the result of its acts or those of its agents or employees
What are the ways a gov can acquire property
bequest, gift, purchase, lease or condemnation
Gov may not institute condemnation proceeding until it has first
made a bona fide effort to purchase property from owner
effort to make bona fide attempt to purchase property is not required where owner is
i) under disability or otherwise unable to convey legal title
ii) unkown
iii) cannot be located in the state
Where must condemnation proceedings be brough
in CC where property or greater portion therof is located
Petition for condemnation must include
i) A description of the property to be taken;
ii) The estate, interest, or rights in the property to be taken;
iii) The authority for the taking;
iv) The necessity for the work or improvements to be made; and
v) The public uses for which the property is to be taken.
What is just compensation of taken property
fair mrkt value at time of taking includiing lost access caused by taking or damaging of the property and lost profits if can be determined to a reasonable certainty and time limit is 3 years from date of valuation. Must be proved that loss cnanot be prevented by relocating
Who determines fair mrkt value
condemnation jurors appointed by CC judge
What happens when gov takes private property for public use but fails to pay just compensation
Property owner can bring an inverse condemnation claim to enforce his constitutional right to just compensation…Inverse condemnation is based on quasi k so no sovereign immunity
Elements P must prove in inverse condemnation
i) P owns proivate property or has irght in private property
ii) property or right connected has been taken or damages by gov or body w condemnation authority
iii) taking or damaging was for public use
iv) gov or condemning authority failed to pay just compensation
Taken or damaged: Direct access easements
owner whose property abuts public right of way has right of ingress and egress
Gov actions that result in even a single occurrence of flooding can support an inverse condemnation claim if the damage to private property is
caused by design, operation, or failure to maintain drainage projects
Can local gov acquire title to real property by adverse possession?
yes, when there has been actual, continuos, hostil, open, notorious and exclusive use of the property by the gov
How many votes and by whom are necessary for city/town to sell public land
3/4ths of all members elected to the governing body
Can counties be sued in tort?
not unless waived by statute. Counties enjoy sovereign immunity from all tort liability for all activities of their officers, agents and employees even when acting in proprietary capacity. Applies to quasi K actions but not inverse condemnation
Examples of Governmental functions
1) Ambulance
2) Education facilities
3) erosion and flooding control structures (dams, levees, seawalls
4) fire protection;
5) Garbage removal
6) Hospitals and nursing homes;
7) Police protection
Does a volunteer fire company have sovereign immunity? ,
yes
Proprietary function examples
1) routine maintenance of streets
2) provision of utilities (electricity, gas, sewer)
3) Maintenance of rec facilities (not for gross negligence)
4) operation of housing authorities
Gross negligence
utter disregard of prudence amounting to complete neglect of the safety of another
When municipality’s action constitutes both governmental and proprietary functions, action is considered
governmental and sovereign immunity applies
Technically gov functions
1) snow removal
2) removal of trees
3) repair of traffic lights
Is an independent contractor covered by sovereign immunity?
No
When immunity does not apply and an alleged injury is caused by the agent of a municipality, agency principles dictate that an injured party must show that
i) municipality had authority to control agent’s actions
ii) agent was acting within the scope of his employment for liability to attach to the municipal corp
Defenses aside from sovereign immunity
assumption of risk + contributory negligence
Is city or town liable for negligence in maintaining parks, rec facilities or playgrounds?
No but can be liable for gross negligence
Virginia Freedom of Information act guarantees
free entry in meetings, access to public records
Public body
any legislative body, authority, board,, agency, of the Comm , constitutional officer
Public record
all documents/writings re the transaction of public business
Exemptions of public records
) Personnel information concerning identifiable individuals, unless waived in writing by the subject of the information;
ii) Information protected by the attorney-client privilege or the work-product doctrine;
iii) Any test or examination used, administered, or prepared by a public body for the purpose of evaluating students, employees or employment seekers, or license or certification applicants;
iv) Records lawfully recorded in or compiled exclusively for use in closed meetings;
v) Vendor proprietary information software used for the purposes of processing data for agencies or political subdivisions and computer software developed by state or local agency;
vi) Appraisals and cost estimates of real property subject to a proposed purchase, sale, or lease, prior to the completion of such purchase, sale, or lease;
vii) Information relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such information would adversely affect the bargaining position or negotiating strategy of the public body; and
viii) Account numbers or routing information for any credit card, debit card, or other account with a financial institution of any person or public body.
FOIA Criminal records
records such as incident info relating to felony offenses, such as adult arrestee photographs must be released…Prohibited from release is identity of an individual providing info about a crime or criminal activity under a promise of anonymity
All Public records must be open to
citizens of the commonwealth or reps of newpsapers/magazines w circulation in the COmm
How long does custodian have to respond to request for public records
5 biz days and may provide, deny indicating the code section that authorizes wiyholding the records; provide some of the requested records, denying others; or indicate it is not practically possible to comply w the request, specifying the conditions that make a response impossible
Meeting–Physical assembled requirement
meeting should generally not be conducted through telephonic, video, or other electronic communication means where the members are not physically assembled to discuss or transact public business
Notice of meeting
public body must generally give notice of the date, time and location of its meetings at least 3 working days before the meeting
Minutes of Meeting
Minutes must be recorded andin writing including, date, time and location of the meeting;
members of the public body recorded as present and absent and a summary of the discussion o matters proposed, deliberated, or decided and a record of any votes taken
Abatement of public nuisance
a police power of the city which is not an action the gov has to offer property owner just compensation for…
How is just compensation determined?
Whenever a lawful taking has occurred, condemnation jurors shall be appointed by the Ct to determine the issue of just compensation, in accordance w procedures prescribed for the condemning authority….
Condemnation commissioners are appointed and sworn to determine the issue of just compensation at a hearing
Exs of takings for private purposes
increasing revenue, economic development, increasing jobs
Fair market value: lost profits
can obtain lost profits if determined to a reasonable certainy of the net income up to 3 yrs prior to valuation date, provided that lost profits result from inability to relocate the business in a reasonable way and may not be duplicated in the compensation otherwise awarded
What rule applies when a power has been delegated but the manner of its execution has not been specified….
Reasonable selection rule…locality has reasonable discretion as to manner in which power is executed
City’s liability for failing to use reasonable care to install lights, a barricade and other safety devices/designing/constructing roadway
City is immune from liability for failing to use reasonable care to install lights, a barricade and other safety devices BC CONSTITUTES A GOV FUNCTION
Gross negligence amounts to
absence of slight dilligence or the want of even scant care
City does not commit gross negligence when
danger was open and obvious
Notice is deemed filed when
received by office to whom it is directed… Burden on proponent to establish receipt
Notice of claims requirement only applies to
City, not its employees
Does a city lose its sovereign immunity because its employee may be guilty of intentional conduct or gross negligence?
No, city cannot be held vicariously liable for employee’s gross negligence or intentional misconduct
meetings of a public boduy must include
an informal assemblage of i) as many as 3 member or ii) a quorum if less than 3 of the constituent membership, wherever held, with or without taking minutes, whether or not votes are cast , of any public body..
Meetings shall be open to the public and public body must
give notice of the date, time and location of its meeting by posting on its website, posting area, and at office of clerk or chief administrator; and allow their meetings to be filmed and keep proper minutes
Locality may permit the temporary use of public rights of way for
public purposes and close the rights of way for public use and travel during temporary use
Public place definition
area devoted to the use of the public at large or by the municipality itself in carrying out its gov functions
Open and obvious defect
municipality is not liable for open and obvious defects
notice of defect P must show more than just
defect on public property has come into being and caused P’s injuries. Must have been present long enough that gov can be charged w constructive notice.
What can be inferred when defect is such that it might have developed recently and suddenly and evidence to the contrary is lacking
constructive notice….existence of a defect for one or two days does not constitute constructive notice as a matter of law
Statutory immunity
cities, counties and towns are immune from simple negligence in operation of beaches, pool, parks, playground, skateboard facilities, rec facilities
