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Bar Exam - VA Specific > Local Gov't Law > Flashcards

Local Gov't Law Flashcards

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1
Q

What is meant by locality?

A

City, town, county

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2
Q

What is meant by municipal corporation?

A

cities and towns but NOT counties

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3
Q

What is a county?

A

an unincorporated governmental district of the Commonwealth created for the convenience of the sovereign

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4
Q

What are cities and towns?

A

corporations created to serve the interests and needs of populated areas

towns = 1,000 or more 
cities = 5,000 or more
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5
Q

Do localities have inherent powers?

A

No, all powers must be expressly provided in the legislatively enacted charter for the locality or in general statutes conferring powers on localities in Virginia

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6
Q

What is Dillion’s Rule?

A

A locality can exercise only those powers:

  1. expressly granted by statute or charter and no other powers unless;
    a. necessarily implied or incident to the powers expressly granted; or
    b. the implied power is essential and indispensable to the declared purpose for creating the locality
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7
Q

How are bonds issued to a locality?

A

by ballot vote or a special hearing

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8
Q

Is there a limit on the amount of debt a locality can incur?

A

Yes, 10% of the assessed valuation of the real estate subject to taxation in the locality

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9
Q

Exceptions to the debt limit

A
  1. revenue anticipation bonds (paid back from expected taxes within 1 year)
  2. special fund bonds (paid down in 5 years with funds from project its funding)
  3. projects where payment will come from assessments levied upon the property benefited; debts arising from civil and criminal judgments, and debts from daily expenses/ordering of supplies
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10
Q

Limits on locality’s police power?

A

Basically unlimited - must related to the health, safety, morals, and welfare of inhabitants of the state and must not be arbitrary, discriminatory, or unreasonable

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11
Q

Can a locality impose an income tax?

A

No but can have license taxes based on gross receipts of an activity

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12
Q

Do ordinances need to be adopted in public meetings?

A

Yes, according to the Freedom of Information Act

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13
Q

What are the three requirements for a valid ordinance?

A
  1. prior published notice - worded to alert the residents who will be affected
  2. a majority vote - of the governing body at a public meeting
  3. the ordinance is reasonably certain in application (not vague)
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14
Q

Are ordinances presumed valid?

A

Yes, the burden rests on the party challenging the ordinance

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15
Q

How to raise a challenge to an ordinance?

A
  1. defense to violation

2. complaint for declaratory judgment (need to have real interest and be ripe)

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16
Q

What are 5 grounds for invalidating an ordinance?

A
  1. it was not adopted properly
  2. unconstitutionally vague
  3. arbitrary or discriminatory
  4. beyond the powers of the locality
  5. preempted by federal or state law
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17
Q

What are the two grounds for preemption by state statutes?

A

extensive state regulation is not sufficient

  1. express prohibition
  2. inconsistent with state law
    - state prohibition on the activity - void
    - statute authorization of the activity (ordinance forbids it) - void
    - state law is silent - if it is authorized within the powers of the locality - valid
    - some state regulation - local ordinances can regulate the topic if it is possible to comply with both
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18
Q

What is the purpose of zoning?

A

stabilize property uses, conserve the value of property, devote areas to selective uses, encourage most appropriate use of land

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19
Q

What is a zoning administrator?

A

administers the regulatory scheme and is an enforcement officer - issues violations and prosecutes proceedings to compel compliance

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20
Q

What is the Board of Zoning Appeals (BZA)?

A

quasi-judicial body set up by a locality

has the authority to interpret the zoning ordinance, rule on appeals of actions by the zoning administrators, and grant exceptions from normal zoning requirements (variance) or grant special permits

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21
Q

What is a planning commission?

A

appointed group that conducts public hearings as to zoning ordinances and map amendments and makes recommendations to the governing body

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22
Q

What is the governing body in zoning?

A

city or town council or county board of supervisors, takes final action on comprehensive plan, zoning ordinance, or map amendments after conducting its own public hearing

passage or refusal to pass may be challenged in court within 30 days

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23
Q

Notice for Board of Zoning Appeals

A

within 30 days after the decision, to the administrator and board of zoning appeals

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24
Q

What are the two requirements for BZA to authorize a variance?

A
  1. strict enforcement would result in undue hardship, not shared by other properties; and
  2. granting of the variance will not be detrimental to adjacent property or change the character of the district
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25
Q

What is conditional zoning?

A

an applicant may seek a “conditional use permit” to undertake a particular form of development or use of the property

  • applicant can submit proffers (self imposed limits on the development)
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26
Q

Grandfathering in after zoning ordinance changes

A

lawful nonconforming uses are allowed but cannot be enlarged, structurally altered, rebuilt, or resumed after abandonment (two years of disuse)

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27
Q

Vested rights in development plans

A

No such thing - landowner has no vested right to develop land in accord with the prevailing zoning ordinances and a change will be binding

  • this is true is the landowner bought the property specifically in reliance on the zoning classification
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28
Q

Vested rights in development plans - Exception

A

Exception for investment in reliance on significant governmental action affecting development rights (rare)

Vested if:
1. the locality makes a significant affirmative act supporting the use of the property;

  1. the landowner relies in good faith on the governmental act; and
  2. the landowner incurs extensive obligations or expenses in diligent pursuit of the specific project in reliance on the governmental act
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29
Q

Is purchasing property enough to have zoning rights vest?

A

No

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30
Q

Examples of affirmative government acts sufficient to vest a landowner’s right to develop a specific project

A
  • governing body accepted proffers
  • approved an application for rezoning for specific use
  • board of zoning appeals approved a variance
  • approved a final subdivision plat
  • final written order or determination regarding the permissibility of specific use or density
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31
Q

Who grants a variance?

A

Board of Zoning Appeals

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32
Q

Where, how and when - appeal from BZA

A

circuit court within 30 days after a decision of the board by filing a writ of certiorari in the circuit court

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33
Q

What does the circuit court do on appeal?

A
  1. review the record made before BZA or other gov’t body; and
  2. take testimony
34
Q

Zoning laws and decisions are presumed to be valid - what must a petitioner show for the circuit court to grant cert?

A
  1. BZA applied incorrect legal rules or was plainly wrong (purpose and intent of the law)
  2. using the administrative record or additional evidence that the decision was in error as to (1) any finding of fact; or (2) the sufficiency of those facts to meet standards under the local ordinance or state statutes
    - preponderance of evidence
35
Q

Are contracts ultra vires enforceable?

A

No, a contract beyond the scope of the locality’s power is unenforceable and no implied contract recovery is available

36
Q

Is apparent authority enough to bind a locality to a contract?

A

No, even arrangements that are within the locality’s powers are unenforceable if they have not been properly approved by a vote of its governing body

37
Q

Freedom of Information Act

A

all public records shall be open to inspection and copying and that access to such records shall not be denied

38
Q

When does the government need to respond to a FOIA request?

A

within 5 working days

39
Q

Appropriate responses to a FOIA request

A
  • requested records will be provided
  • withheld entirely
  • provided in part and withheld in part

identify with reasonable particularity the subject matter of withheld portions and cite the Code that authorizes withholding

  • if another public body has them, direct the requestor to them
  • if not practically possible to provide docs within 5 days - specify the conditions that make it impossible
40
Q

What constitutes a denial of a FOIA request?

A

failure to respond within 5 working days is a violation of the statute

41
Q

Examples of exempted records for FOIA requests

A

personnel records, written advice of counsel, criminal investigative records, testing results for students, propriety software of a vendor, building design, personal information (SSN), security systems and anti-terrorist plans, trade secrets

42
Q

What are the two assured access categories of record for FOIA requests?

A
  1. contracts between a public body and its officers or employees, records of position, job classification, rate of pay, allowances or reimbursement; and
  2. nonexempt portions of a report of a consultant hired by or at the request of the local public body
43
Q

Meeting Requirements under FOIA

A
  1. FOIA prohibits any transaction of public business other than by votes at public meetings - open to the public and in person
  2. requires minutes to be taken at all regular open meetings
44
Q

When can there be a closed or executive session? and what needs to happen after?

A

an affirmative recorded vote in an open meeting

(1) identifying the subject matter;
(2) stating the purpose of the meeting; and
(3) making specific reference to the applicable FOIA exemption

at the conclusion of the closed meeting, the public body must immediately reconvene in an open meeting and take roll call and certify that (1) only public business matters lawfully exempt were discussed and (2) only such public business matters as were identified in the public meeting were discussed.

45
Q

4 FOIA exceptions to a public meeting

A
  1. about actual or probable litigation with counsel
  2. tests and examinations
  3. hazardous waste sitting
  4. public contracting (interview of bidders, negotiations)
46
Q

Can there be a vote in a closed/executive meeting?

A

No, no resolution, ordinance, rule, contract, regulation, or motion approved in a closed meeting will be effective unless the public body, following the closed session, reconvenes in open meeting and

(1) reasonably identifies the substance of the issue; and
(2) takes a vote in the open meeting

47
Q

What can petitioner recover if government is found to have violated FOIA?

A

automatically entitled to recover reasonable costs and fees - expert witnesses, attorney’s fees from the public body if the petitioner substantially prevails on the merits unless there are special circumstances that would make recover unjust

48
Q

Special circumstances precluding automatic recover of fees in FOIA

A

whether the public body was relying upon the opinion of the Attorney General or a decision of a court substantially supports the public body’s position

49
Q

Circumstances where the petitioner is allowed to recover in FOIA

A
  • governing body’s procedure has been followed for years and no one has complained
  • violation was not willful and knowing
  • another court may have found the practice was not permissible
  • extensive research on FOIA did not indicate a problem with procedure
50
Q

What can the government charge in responding to FOIA requests?

A

reasonable amounts for

  • copying or printing charges
  • cost of searching for responsive records
  • cost of analyzing the records
51
Q

Who is absolutely immune from tort liability?

A

Counties only (Virginia Tort Claims Act)

52
Q

Requirements for contract and equitable monetary claims against counties

A
  1. presenting the claim - no action may be maintained against a county on any claim or demand until the claim is presented to the governing body for allowance. if the governing body refuses or neglects to act – then a lawsuit can be brought
  2. if governing body disallowed the claim - claimant may appeal to circuit court:
    a. within 30 days after notice of disallowance. notice of appeal must be filed with clerk of the county; AND
    b. a complaint must be filed in circuit court within 6 months after disallowance
53
Q

When are cities and towns liable for torts?

A

Governmental functions/public capacity - not liable, sovereign tort immunity

Proprietary functions = liable

54
Q

What are some examples of governmental functions for tort liability?

A

immune!!

  • police force
  • fire departments
  • public educational facilities
  • garbage removal services
  • emergency response to hurricane damage
  • hospitals and nursing facilities
  • operation of jails
  • design and layout of roads
  • maintenance of traffic lights
55
Q

What are some examples of proprietary functions for tort liability?

A

Not immune!!

functions that promote the comfort, safety, and happiness of residents, much like a business corporation, such as waterworks

Examples:

  • road maintenance (must have reasonable notice of defect and sufficient time to remedy the defect)
  • provisions of public water, sewage, storm drainage, gas and municipal electric power
  • housing authorities
56
Q

Difference between governmental and proprietary functions

A

governmental = exercise of entity’s political, discretionary, or legislative authority

proprietary = maintenance or operation of the service being provided, like a corporation would
- fees are not dispositive, can be governmental if for public good

57
Q

What if a function is governmental and proprietary?

A

governmental aspect prevails and they are immune

58
Q

Test for determining liability of officers and employees (2 steps)

A
  1. is the employing governmental unit immune?
    - if no, the workers cannot be immune.
    - if yes, it must be determined whether the individual employee is entitled to share that immunity.
  2. should the individual employee share the immunity?
    - top level people = automatically
    - lower level employees = 4 factor test
59
Q

4 factor test for lower level employee immunity

A
  1. nature of the function performed by the employee (private vs public)
  2. extent of governmental entity’s interest and involvement in the function (does it matter to the government in what matter the job gets done?)
  3. degree of control and direction exercised by the governmental entity over the employee (the more control, the more it looks like a governmental activity and should be immune)
  4. whether the alleged wrongful act involved the exercise of judgment and discretion (more discretion, more immunity given)
60
Q

Can independent contractors claim sovereign immunity?

A

No, even if the employing locality is immune

61
Q

Special situations of employees who receive immunity (4)

A
  1. school boards
  2. principals
  3. teachers
  4. coaches
  5. bus drivers according to recent case law
62
Q

Insurance = Exposure

A

school boards and bus drivers are generally immune from negligence claims, there is no immunity in a bus crash if the board has insurance
- no immunity for amount of coverage

63
Q

Recreational Facilities - immunity

A

only liable for gross or wanton negligence

64
Q

Driving situations - immunity

A

police, firefighters, ambulance - immune when acting in an emergency not in non-emergency situations

65
Q

Employee liability for gross negligence

A

can be sued for gross negligence and intentional torts even if sovereign immunity bars ordinary negligence

66
Q

Can a locality be sued for gross negligence or intentional wrongs of employees?

A

no

67
Q

Notice requirement for negligence cases in counties, towns and cities

A

notice in writing must be given to a designated officer of the locality within 6 months after the cause of action arises, unless injury prevents it

  • must describe the nature of the claim, date, time, and place
  • must be given to either (1) county, city or town attorney; (2) mayor or chief executive of the locality
  • any form of proof is accepted
68
Q

Nuisance claims

A

can be brought against a city or town NOT county

  • liable for injuries relating from creation or maintenance of a nuisance, which can be any dangerous or hazardous situation (negligently creates a dangerous situation)
  • even dangers created performing governmental functions can be the basis for a nuisance action
69
Q

What is eminent domain?

A

a governmental body may condemn any land, building or personal property whenever:

  1. there is a public need for the property, which must be declared in the resolution or ordinance directing the condemnation; AND
  2. condemnor having made a good faith offer cannot agree with the owner as to compensation to be paid
70
Q

What are the 5 public uses for eminent domain?

A

Narrowly defined

  1. use by the public
  2. public facilities like airports, libraries, or jails
  3. use by a utility or railroad
  4. eliminate a specific blighted property that has become a public safety danger; or
  5. where an owner of property in redevelopment or conservation area agrees to acquisition
71
Q

Is there a presumption that the planned use is public?

A

No, burden is on the condemnor

72
Q

2 Limitations on eminent domain

A
  1. VA law - can’t take more than necessary
  2. public interest must predominate over any private gain
    - primary purpose cannot be private financial gain or to create any other private benefit
    - primary purpose cannot be to create an increase in tax revenue or create jobs or economic development generally
73
Q

Is a locality required to compensate the owner when it demolishes a public nuisance (dangerous condition)?

A

No, it is not a taking and no compensation is required

74
Q

Condemnation proceedings

A
  • no agreement –> circuit court to determine fair market value of the property taken
75
Q

How to calculate fair market value at condemnation proceedings

A

value of property + lost profits + lost access

  • lost profits = up to 3 years
76
Q

what is the residue?

A

when it is alleged that taking some of a landowner’s property has caused damage to remaining property

  • test is what the fair market value was the day before the take compared to the day after
77
Q

What are fact finders in a condemnation case called?

A

jurors or commissioners

78
Q

What is inverse condemnation?

A

when property is taken indirectly (damaging it or rendering it less useful) without formal condemnation

property owner may institute inverse condemnation proceedings to obtain a declaratory judgment or damages

79
Q

Is there sovereign immunity for inverse condemnation cases?

A

No, against 5th amendment and VA’s constitution

80
Q

Leases of real property by municipal entity: timing and votes needed

A

limited to 40 years and must be passed by 3/4 of governing body

Bar Exam - VA Specific (7 decks)

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