Local Government Law Flashcards
What are the types of localities in Virginia?
- Cities
- Population of 5,000 or more
- Incorporated by a charter
- Completely independent of counties
- Towns
- Population of 1,000 or more
- Incorporated by charter
- Not independent of counties
- Counties
- Unincorporated units of the state government
In Virginia, what is a municipal corporation?
Includes cities and towns, but not counties
What powers do localities have?
Dillon’s Rule:
Only those expressly provided for in:
- Charter
- General statute
What are the most common powers that localities have?
- Tax (real property and local sales)
- Sue and be sued
- Contract
- Acquire, hold, and spend revenue
- Exercise eminent domain
- Borrow money and issue tax-exempt bonds
- Acquire, hold, and sell real and personal property
Can localities redelegate their powers?
Generally, no - elected officials cannot pass of their decision-making powers
What are the exceptions to Dillon’s rule?
- 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)
- All localities can choose the method of impliementing authorized power as long as the method is reasonable
What is required before a locality can issue bonds?
Ballot vote or special hearing
What can bonds be issued for?
Generally only capital expenditures
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
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?
Income taxes
How do localities impose license taxes?
Based on gross receipts from the activity
Although this seems like an income tax, it is distinct
What are ordinances?
What is a violation of an ordinance?
How are they adopted?
Local laws
Violations are usually misdemeanors
Must be adopted in public meetings, pursuant to FOIA
What are the requirements for a valid ordinance?
- Prior published notice
- Majority vote
- Reasonably certain in application
Also subject to Dillon’s Rule
How do you challenge an ordinance?
Either:
- Wait until fined and raise as a defense
- File complaint for declaratory judgment
What are the grounds for invalidating an ordinance?
- Not adopted properly
- Unconstitutionally vague
- Arbitrary (i.e., futile) or discriminatory
- Beyond powers of locality (i.e., Dillon’s Rule)
- Preempted by federal or state law
What gives localities the power to regulate land use?
Police power
What are regulations of land use called?
Zoning regulations
What are the components of a zoning regulation?
The following must be updated every 5 years:
- Zoning ordinance
- Map with designated growth areas
Who are the regulatory actors with respect to zoning?
- Zoning administrator
- Person(s) who enforce zoning regulations
- Board of zoning appeals (BZA)
- Quasi-judicial body that grants:
- Variances
- Special use permits
- Quasi-judicial body that grants:
- Planning commission
- Group that conducts hearings as to comprehensive plan updates
- 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 a variance?
What is a special use permit?
Variance
- 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 of 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:
- Strict enforcement will cause individual undue hardship
- Variance will not be detrimental to other property
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
Exception:
- Investment in reliance on significant government action
- Requires:
- Significant affirmative act
- Reliance in good faith
- Extensive obligations or expenses
- Requires:
For purposes of vested rights, what are examples of government acts?
- Acceptance of proffer
- Approval of application
- Grant of special use permit
- Approval of variance
- Approval of preliminary plan
- Approval of final plan
- Issuance of final written order
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?
- Error of law
- BZA applied incorrect legal rules
- Error of fact
- BZA was wrong as to:
- Fact-finding
- Sufficiency of facts
- Burden of preponderance of evidence
- BZA was wrong as to:
What is spot zoning?
Amending the zoning ordinance and imposing a more or less restrictive ordinance one just one or two parcels
What can the P and D argue in response to spot zoning decisions?
P - there was no changes sufficient to justify the re-zoning
D - prior zoning was mistaken or circumstances changed
What is the standard of review on spot zoning issues?
If the matter is fairly debatable (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
How do FOIA requests work?
- File request in any written format
- 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
How are exemptions from FOIA requests construed?
Narrowly
Burden of proof is on local body to establish exemption by preponderance of the evidence
What are the two categories of records that must be released pursuant to FOIA?
- Contracts between public body and its officers or employees
- Non-exempt portions of reports of consultants hired by public body
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
- Requires prior affirmative vote in open meeting:
How are FOIA requirements enforced?
Strictly
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
Can the government charge anything for FOIA requests?
Yes:
- 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
Can a county be sued on contract or equitable claims?
Yes, subject to the following procedures:
- Presentment
- Claim must be presented to the governing body so they may allow or disallow the claim
- Appeal period
- If governing body disallows claim, file notice of appeal to both:
- Clerk of county
- 30 days after disallowance
- Circuit court
- 60 days after disallowance
- Clerk of county
- If governing body disallows claim, file notice of appeal to both:
Can a city or town be sued in tort?
Only for governmental functions:
- Police forces
- Fire departments
- 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 proprietary functions of cities and towns?
- Road maintenance (but not design)
- Provision of utilities
- housing authorities
How do you determine whether a function is governmental or proprietary?
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?
- Is the locality immune?
- If no, the employee is not either
- If yes, move on
- 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)
- Is nature of the action public?
- Was government interested and involved?
- Did government exercise control?
- Did act involve discretion?
- Four-factor test (if yes, closer to immunity)
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
- Choose patients
- Choose treatments
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?
- Gross negligence
- 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
- Mayor
- CEO
What is the rule with respect to nuisance claims against localities?
Counties
- Absolutely immune
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 statutes of limitations apply to localities’ claims?
Yes
Can equitable defenses 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?
- Public need for property declared in resolution or ordinance directing condemnation
- Condemnor made good faith offer to purchase which property owner declined
What uses qualify as public uses?
Only:
- 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:
- Financial gain
- Increase tax base
- Create more jobs
- Economic development
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 locality’s 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:
- Lost profits
- For up to three years if:
- Property was for a business or farm
- Other steps could not be taken to avoid loss
- For up to three years if:
- Lost access
- 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 property that is leftover after condemnation?
Residue
What do you call the fact-finders in a condemnation proceeding?
Jurors or commissioners
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
Dillon’s Rule
A locality can exercise only those powers EXPRESSLY GIVEN by statute or charter and no other powers, unless necessarily implied in or incident to powers expressly granted, or unless implied power is essential and indispensable to declared purposes for creating locality
Who does Dillon’s Rule apply to?
Applies to all counties
With respect to cities, Uniform Charter Powers Act permits legislature to provide that “approved” cities and towns may exercise all powers not expressly prohibited by constituion or general laws that are necessary or desirable to promote general welfare of inhabitants
Police Power
Broad authority- locality may adopt such rules and regulations as are reasonable and necessary for the protection of inhabitatants; almost unlimited- but must relate to healty, safety, morals, and welfare and must not be arbitrary, discriminatory, or unreasonable
What is an ordinance?
Leglislative acts of local governments and have force and effect similar to that of state statutes (violation= usually a misdemeanor)
Presumption and burden of ordinance?
Validity is presumed and burden rests on party challenging it
4 situations where there are inconsistencies between state and local laws
1) State prohibition of activity
2) State authorization of activity- ordinance can’t forbit it
3) State law is silent- ordinance may regulate and prohibit (if within authorized powers of locality)
4) Some state regulation- ordinance also may regulate topic (as long as not inconsistent)
What is a “comprehensive plan”?
It composes of a zoning ordinance and map with growth areas designated, and must be updated every FIVE years
What is conditional zoning?
An optional provision under which an applicant may seek “conditional use permit” to undertake particular form of development or use. If request not granted, applicant may submit written proffer
Where do you appeal after the decision of the circuit court reviewing local zoning matters?
Is it an appeal of right?
VA supreme court (not an appeal of right)
What happens if the manner of making or awarding a contract that is prescribed by state law or local ordinance is not followed?
K will be held VOID unless court finds it was merely a suggested, not mandatory, procedure
What is VA FOIA?
Provides that, unless otherwise specificied, ALL PUBLIC RECORDS shall be open to inspection and copying and that “access to such records shall not be denied”
How can you make a FOIA request?
ANY form of writing may be used (even email)
Main categories of exemptions from FOIA
- personnel records
- written advice of counsel (work product) of investigations
- criminal and admin investigative records
- testing results for students and license applicants
- proprietary computer software of a vendor working for locality
- property appraisals
- Personal info (SSN)
- security systems
NO FOIA exemption can prevent access to which two categories of records?
- Ks between public body and officers/employees, recorsd of position, job classification, official salary and records of allowance/reimbursement paid to official or employee
- nonexempt portions of report of consultant hired by or at requrest of local public body which have been distributed to members of local public body or if local public body has been scheduled any action on this matter that is subject of consultant’s report
Closed meetings are permitted for:
- employment applications and personnel decisions
- disposition of publicly held property
- private matters not related to public buisness
- discussion with counsel about “actual and probable litigation”
- tests and examinations
- hazardous waste siting
- public contracting (biding, negotiation)
VA SC has held that these are NOT circumstances precluding attorney’s fees to prevailing petitioner:
1) gov body’s procedure has been followed for several years and no one has complained
2) violation was not willful and knowing
3) another court may have found practice was not impermissible
4) extensive research on FOIA and its requirements did not indicate problem with its procedure
govs/mayors/legislators/counsil/heads of departments/judges share immunity of entity for which they work…
AUTOMATICALLY
What is an Independent Contractor?
One who is not a regular employee but instead an IC performing specific task- they CANNOT claim sovereign immunity even if employing locality is immune
Legislature has provided that in the case of school bus accidents (negligence) if the board has any insurance for such claims…
there is NO immunity from liability up to amount of coverage
