Local Government Flashcards
Under Dillon’s Rule
A locality can exercise only those powers granted EXPRESSLY by statute or charter and no other powers, unless necessarily implied in or incident to the powers expressly granted or essential to the declared objects and purposes
Dillons Rule Applicablity
- Counties
- Cities and towns
- Rule is Strictly applicable to counties
- Uniform Charter Powers Act of Virginia permits the legislature to provide that “approved” cities and towns may exercise all powers not expressly prohibited by the consituional or general laws and are necessary or desirable to promote the general welfare of the inhabitants
To avoid municipal bankruptcies and similar financial straits
A locality is limited to issuing general purpose bonds by a 10% rule: the debt may not exceed 10% of the assessed value of real estate located within the county or city involved
An Ordinance is validly adopted IF
- Prior published notice worded to alert the residents who will be affected
- Majority Vote of the governming body at public meeting; and
- the ordinace is reasonably certain in application
P.M+R.C.A
Means of Raising a Challenge to a local ordinance
Invalidity of a local ordinance can be raised as a
- defense to a violation charge
- or complaint for declaratory judgment
Grounds for Invalidating an Ordinance
- not properly adopted; OR
- it is unconstitutionally vague OR
- it is arbitrary or discriminatory; OR
- it is beyond the powers of the locality; OR
- it is preempted by federal or state law
A.V.A.Dillon.P
What is a Variance?
A ruling that the landowner does not need to comply with one or more of the technical requirements of the zoning ordinances
Two requirements for VARIANCE under current statutes
(i) the applicant for a variance must show serious hardship if an exception from the strict application of zoning limitations is not granted, which is specific to that parcel, and that neighboring parcels of land do not share the same condition;
(ii) the landowner must also show that—if a variance is granted—there will be no material detriment to the neighboring properties
If either the landowner or the local government is dissatisfied with the decision of the appeals board
it may file a petition for writ of certiorari in the local circuit court within 30 days of the decision
A zoning scheme may include conditional zoning, under which
A landowner offers the local government specific benefits, called “proffers,” which are not technically required but which the locality may view as attractive features of a proposed development.
If the locality approves a development relying on these conditions, they become part of the zoning ordinance with respect to the parcel of land, and failure to comply with these proffers may be penalized
Local ordinances are presumed
to be correct
A circuit court reviewing a BZA decision is not technically de novo because
There is a rebuttable presumption that the BZA acted correctly
A party must file a petition for within of the BZA decision
writ of cert
30 days
A circuit court reviewing a BZA decision, in addition to the record, has the statutory power
To take new or additional evidence, both testimonial and documentary
After a circuit court review and decides on a BZA decision, an appeal to the
Supreme Court (not the court of appeals)
Where the object of the contract is one for which the municipality may not contract, “ultra vires”
the contract is invalid
The public body’s response to a FOIA request must be made within
5 working days
While there are many statutory exemptions which include personnel records and other confidential materials, the FOIA statute expressly provides that two categories of records must always be available:
(i) the contracts of employment of top personnel in the local government,
and (ii) reports provided to the local government by outside contractors who have been retained to study an issue of local concern
The three required steps for making a contract based claim against a county are:
(i) formally presenting the claim to the county,
(ii) if the county refuses the claim, filing a notice with the clerk of the County Board of Supervisors that an appeal will be taken, and
(iii) commencing a court action within six months after the refusal by the county to honor the contract claim
A city is immune from liability for claims relating to
“governmental functions” but lacks immunity when performing “mere proprietary activities.”
Where a function contains some governmental features and yet has other proprietary aspects
the governmental aspect prevails, and the locality will be deemed immune for claims arising out of that activity
The four-factor test for whether ordinary government workers will be found to have sovereign immunity is:
(i) the nature of the function performed by the employee,
(ii) the extent of the governmental entity’s interest and involvement in the function,
(iii) the degree of control and direction exercised by the governmental entity over the employee, and
(iv) whether the alleged wrongful act involved the exercise of judgment and discretion.
With respect to personal injury claims, Notice must be given
within six months after the accrual of a personal injury claim
Any form of delivery is permitted, including hand delivery, use of a commercial delivery service, and even ordinary mail. The burden, however, rests on the claimant to demonstrate that the notice was actually received by the governmental body within the six-month deadline. The statute expressly states that its terms are mandatory and must be strictly construed by the courts.
Any governmental body (and some utilities authorized by statute) may exercise the power of eminent domain and, by proper proceeding, may condemn any land, building, or personal property, including any interest of any individual or corporation, whenever
(i) a public need for the property exists, which must be declared in a written statement that explains the factual basis for the condemnation offer; and
(ii) the “condemnor” must make a good faith effort to purchase the land directly from the owner.
The General Assembly has added language to the condemnation statutes expressly stating private land may not be taken
for the primary purpose of increasing jobs or the tax base of the local government
When a valid public use has been identified
only so much land as is necessary to achieve the public purpose may be condemned
When such a partial taking (condemnation) occurs
The landowner retains any portion of the property that is not condemned, and this is referred to as the residue.
If the landowner does not accept the condemnor’s good faith offer to purchase the property
the governmental body must bring a court proceeding to acquire the property in the circuit court where the property is located
The landowner is entitled to recover of the amount of property actually taken in the condemnation, including
the fair market value
rental revenue it generated
Going into debt by the issuance of municipal bonds must be approved by
a referendum voted on by taxpayers in the community, or at a special hearing held before the governing body of the locality, after proper notice to residents of the proposed debt undertaking
To protect the investment of property owners, lots, activities, or signs that preexisted the current zoning ordinance
nonconforming uses are allowed to continue
if a non-conforming use is discontinued for a period ofit will be deemed abandoned and such use will not be permitted to resume
2 years
The basic rule is that there are no to develop property based on existing zoning regulations
vested rights
Exception to the general rule that there are no vested rights
statutes require the owner show that the local government
(i) has made a significant affirmative act approving the development
(ii) prior to the owner making an investment based on that approval (reliance)
“Inverse Condemnation” Proceeding
When property is taken indirectly without formal condemnation, a property owner my institute inverse condemnation proceeding by filing to obtain a declaratory judgment or damages.
No sovereign immunity against inverse condemnation claims.
Counties are immune from liability in tort, BUT where a tort involves property damage,
a plaintiff may “waive” the tort and sue on an implied contract to pay for property wrongfully damaged or taken for public purposes under the “takings” clause of Virginia Constitution
What percentage of the qualified voters of any territory adjacent to a city or town may peition the circuit court to be annexed to the city or town?
51%
