Local Government Flashcards
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What must a property owner establish to prevail on an inverse condemnation case?
(1) The property owner owns private property or has some private property right
(2) The property or right connected to that property has been taken or damaged by the government
(3) The taking or damaging was for “public use” and
(4) The government failed to pay just compensation for the taking
July 2001
In what type of claims is there a requirement for presentment?
In contract and equitable monetary claims against counties
* “No action may be maintained against a county on any claim or demand until the claim is presented to the governing body for allowance”
Why does the presentment requirement not also apply to counties for suits sounding in tort?
Because counties enjoy total liability from tort actions
What theory is an “inverse condemnation” claim brought under?
Implied contract to seek damages lost by the “taking”
* This is why inverse condemnation cases can be brought against counties
What is required if a governing body disallows a claim after presentment?
If governing body disallows claim, claimant may appeal to circuit court, BUT:
* Within 30 days after notice of disallowance, notice of appeal must be filed with clerk of the county AND
* Complaint must be filed in CC within 6 months after claims was disallowed by county
What must the complaint in CC allege after presentment?
That the claim has been presented to the governing body (i.e., after presentment, must allege presentment)
* Otherwise, subject to demurrer
What is the notice requirement for any negligence claim against a local government?
The local government must given, in writing, notice 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 (unless injury so prohibits)
* Absolute defense, but locality must affirmatively raise
* Also protects any employee of the local government
* EXCEPTION where requisite city oficial has actual knowledge (nature, time, and place) of claim
July 2014, Feb 2018
What is a governmental function?
Those actions taken for the general health, safety, or welfare of the public, and those actions which arise from the City’s exercise of its legislative or political discretion/authority
* Includes planning of streets
* Includes emergency situations (e.g., delegating where resources should go during severe weather)
July 2014
What is a proprietary function?
Those which are ministerial in nature, involving no exercise of discretion by the locality’s actor
* Maintenance of a street
July 2014
What is the test to determine whether a lower-level employee of an immune locality is likewise immunte?
Four part test:
(1) Nature and function employee performs
(2) Extent of governmental interest in that function
(3) Degree of control or discretion exercised by the government over the employee
(4) Whether the wrongful act involved the exercise of judgment or discretion by the employee
July 2014
When is just compensation from a locality unnecessary?
When it’s exercising for the purpose of abatement of a nuisance, which is an exercise of the police power of the locality
* Not considered an unlawful taking
* For any property damage, abatement of a nuisance is a governmental function (since for common good and discretionary authority), so locality enjoys SI
July 2014
What is Dillon’s Rule?
A strict rule of statutory construction (when in doubt, construe against locality) which states that a locality can exercise only those powers
1. Expressly granted by the General Assembly (by statute or charter)
2. Necessarily or fairly implied to carry out expressly granted power
3. Essential and indispensable to the declared purposes for creating the locality
July 2015, Feb 2016
What is the purpose of the Virginia Freedom of Information Act?
Ensures that, absent a statutory exception, meetings of public bodies conducting public business shall be open to the public
Feb 2016
What is FOIA’s impact on public meetings?
Prohibits any transaction of public business other than by votes at public meetings, absent statutory exception
* Porvides that all meetings of public bodies shall be open, and that no meeting may be conducted through telephonic, video, electronic, or other communication means where the members are not physically assembled to discuss or transact public business
Feb 2016
What records may be sought under FOIA and who may seek them?
All public records in the transaction of public business other than those specifically provided by law
* All citizens, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives and television stations broadcasting in or into the Commonwealth can seek
Feb 2016
