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74 Cards in this Set

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To what does the term "locality" refer?
To cities, towns, and counties
What is a municipal corporation?
Also called a municipality.
It includes cities and towns but not counties.
What are counties?
Counties are subdivisions of state government and they offer a variety of services to their residents
What are cities, towns, and other municipal corporations?
They are corporations created to serve the interests and needs of particular populated areas
How is a city created?
-It must have a population of 5,000 or more citizens
-Must be incorporated by a CHARTER
-Provide a wide range of services to its citizens
Note: they are completely independent of counties
What is a town and how is it established?
-More limited incorporated communities
-Population of 1,000 or more
-Not independent from towns
-No taxing powers but no responsibilities
-Cities can apply for permission to revert to town status
How do localities get power?
-NO INHERENT POWERS
-Must be expressly provided in the legislatively enacted charter for the locality or in general statutes conferring powers on localities in VA
What does a locality's charter look like? What 6 powers do charters generally contain?
All are different but most have the following powers:
1) Sue and be sued
2) Enter into contracts
3) Acquire, hold, dispose of revenue
4) Exercise eminent domain
5) Borrow money and issue tax-exempt bonds
6) Acquire, hold, and dispose of property
What do most localities have in common?
May localities delegate their powers?
GR: no.
EX: narrow execption allows them to use administration but not set policy
What is "Dillon's Rule"?
It states that a locality can exercise only those powers expressly given by statute and those necessarily implied in or incident to the express powers unless it's essential to the declared purpose for setting up a locality
-No implied powers
-With express powers, some zone of reasonable choice
Does Virginia adhere to "Dillon's Rule"?
Yes, strictly.
How do localities incur debt?
-Generally issue bonds through an election or special hearing
What may bonds be used for?
Only capital expenditures (except revenue anticipation bonds)
Is there a limit on the amount of debt a locality may incur?
GR: yes - 10%
With a few exceptions
What are the exceptions to the 10% debt rule?
The following are not subject to the 10% rule:
1) Revenue anticipation bonds (will be paid back from expected taxes already in place within one year)
2) Special fund bonds (paid down in 5 years and directly from the project to be funded)
3) projects where the debt will be paid by levying assessments on the property
4) debst from civil and criminal judgments against the locality
5) debts from daily operating expenses (ordering supplies, etc.)
How broad is the locality's police power?
Almost unlimited power to regulate the health, safety, morals, and welfare of its citizens but must pass constitutional muster
May localities levy taxes?
Yes, for public purposes.
What kinds of taxes may localities levy?
-Property taxes, sales tax, etc.
-MAY NOT IMPOSE A SALES TAX
Do localities have the power to require licensing?
Yes and licenses may be tied to revenues (income) but it's considered distinct from an income tax
What are ordinances?
-Legislative acts of the locality
-Same effect as statutes
-Usually misdemeanors and must have notice
What are the three requirements of a valid ordinance?
1) Prior published notice to alert residents who will be affected,
2) Majority vote at a public meeting, AND
3) Ordinance is reasonably certain--NOT VAGUE
Who bears the burden of proving an ordinance's invalidity?
-The challenger
-Ordinances presumed valid
How can an ordinance be challenged?
-Can be raised as a defense to a violation charge, AND
-Can file a complaint seeking declaratory judgment
On what grounds may an ordinance be invalidated?
1) Not enacted properly
2) Unconstitutionally vague
3) Arbitrary and discriminatory
4) Beyond the powers of the locality
5) Preempted by federal or state law
What are the grounds under which the state may preempt local law?
What are the grounds under which the state may preempt local law?
What are four situations to analyze when considering whether local law is inconsistent with state law and the results of such analysis?
"1) State prohibition of the activity; if state prohibits--it's prohibited (e.g., local legalization)
2) State authorization of the activity; if the state authorizes--it's legal (e.g., subdivisions)
3) State law is silent; where state is silent, ordinance may regulate or prohibit
4) Some state regulation; where state law REGULATES a topic, ordinances may also regulate so long as they're not inconsistent with state law (true even if state law regs extensively)"
Where state law restricts an activity, may ordinances also regulate that activity?
"Yes, so long as local restriction is more restrictive.
KEY INQUIRY: can a person comply with both the state law and local ordinance simultaneously (e.g., motorcycle helmet and kevlar jacket)"
Can state principles oust local ordinances?
"1) Only state ""principles"" that have the force of law can oust local regulation (e.g., statutes and regulations)
2) Mere recommendations or ""best practices"" cannot oust local ordinances"
What is zoning? Do localities have the power to control zoning?
Zoning is the regulation of land use and localities have the police power to regulate.
What is the significance of a "comprehensive plan"?
Comprehensive plans lay out zoning ordinances and contain a map of growth areas designated. Localities must update them every 5 years.
What is a "zoning administrator" and what do they do?
Zoning administrators administer the regulatory scheme and work as zoning enforcement officers byt issuing violation notices and prosecuting noncompliance.
What is a "board of zoning appeals" (BZA) and what dio they do?
A BZA is a quasi-judicial body set up by a locality to interpret zoning ordinances, rule on appeals, and grant variances and special use permits.
What is the difference between a variance and a special use permit?
"-Both are exceptions from zoning ordinances
-Variances allow noncompliance with zoning ordinances
-Special use permits allow a landowner to conduct an activity not generally permitted (don't see the difference here???)"
What is the process of appealing to the Board of Zoning Appeals? Timing?
"-Notice of appeal must be given to the BZA within 30 days after the decision
-Appeals can be taken from aggrieved persons or officers/departments affected by a zoning decision
-Tricky part is determining when exactly a zoning administrator made a ""decision"" (sending various letters, etc. -- no bright line rule)"
What must an applicant for a variance show?
"1) strict enforcement would result in unnecessary hardship approaching confiscation not shared by other properties in the zoning district
2) granting the variance will not be substantially detrimental to adjacent property or the character of the district"
Are variances given lightly/freely?
NO. Virginia will almost never grant variances. Unless the zoning denies an owner of all possible uses of the land, applicant will likely lose.
If a person's application for a development project is not granted, what is another alternative? What must accompany the request?
An applicant may seek a "conditional use permit" and submit proffers of conditions. (can include self-restrictions, promises to build parks, etc)
Is zoning optional or mandatory?
Zoning is optional but localities MUST regulate subdivisions
If a current use of a lot, activity, or sign pre-existed a current zoning ordinance but does not meet the current standard, its use can be __________.
Grandfathered. Its non-conforming use can be continued but not enlarged or structurally altered.
How can a grandfathered use be cancelled?
Through two years of disuse, it will be treated as abandoned. If the sign/etc. is destroyed, it cannot be rebuilt.
Are nonconforming uses disfavored?
Yes, so any grounds for terminating them will be pursued.
What is a "vested right"?
There is almost no such thing as a vested right in Virginia with one narrow exception for investment in reliance on government action.
What must a person show to have a "vested right" recognized?
1) locality makes a "significant affirmative act" supporting a planned use of the property,
2) landowner relies in good faith on that governmental act, and
3) landowner incurs extensive obligations or substantial expenses in pursuit of that specific project
What can a party do after losing in a BZA decision?
Appeal to the Circuit Court for review within 30 days of the BZA decision.
What is the process of appealing a BZA decision?
1) File a petition in the Circuit Court within 30 days after the BZA decision
2) Court can review the record or take new testimony if necessary
What are the grounds for granting a writ of cert for BZA appeals?
1) Petitioner can show BZA applied erroneous principles of law or was plainly wrong in interpreting the purpose/intent of the zoning law, OR
2) Petitioner can show that the decision was in error as to (a) any factfinding, or (b) the sufficiency of the facts
What is the burden of proof on a party in a BZA appeal to the Circuit Court?
Preponderance of the evidence.
What is the standard of review on spot zoning issues?
1) presumed that the zoning was appropriate
2) party can defeat that presumption by showing the zoning was incorrect, the area hasn't really changed, etc.
3) the matter need only be "fairly debatable" (some evidence) for the spot zoning to be upheld
What is spot zoning?
Imposing more restrictive zoning on one or two parcels
Can parties appeal a Circuit Court zoning decision?
Yes, to the Virginia SUpreme Court.
What is the ultra vires doctrine?
It says a contract beyond the scop of a locality's power is unenforceable. A locality MUST have the power to enter a contract and has no inherent power.
Are counties immune from liability in tort?
Yes. Although the VA Tort Claims Act waives immunity for the Commonwealth, it does not do so counties.
Are counties immune from contract and equitable monetary claims?
No. A party must first present the claim to the governing body for allowance.
What happens if the governing body disallows the monetary/equitable/contract claim?
A claimant may appeal to the circuit court within 30 days.
Are cities and towns immune to tort liability?
1) when acting in its public or governmental capacity, a city of town is immune from liability from the acts/omissions of its agents/employees.
2) When acting in its proprietary function, cities and towns are liable
What are some examples of governmental capacity functions?
-Police, fire, etc.
-Operation of public education facility
-Design and layout of roads
-Maintenance of traffic lights
What are some examples of proprietary functions?
-Maintenance of public ways/roads
-Provision of public water, sewage, drainage, gas, and power
-Housing authorities
What if a function has governmental and proprietary aspects?
It is governmental
Are public governmental officers/employees immune from suit?
-Always liable for actions other than ordinary negligence (gross negligence, int'l torts)
-If it's an ordinary negligence suit, ask the following:
1) is the employing governmental unit immune? (e.g., if county -- the unit is always immune from torts)
If yes, go on to (2)
2) should the individual share the governmental unit's immunity?
If a governmental unit is immune, which officers/employees should share the unit's immunity
1) Top level people = immune
2) If lower level, apply 4 factors:
i) nature of the function (public v. private)
ii) extent of the governmental entity's interest/involvement in the function (more control = more immune)
iii) degree of control and direction exercised by government (more control = more immune)
iv) whether it involved exercise of judgment (more judgment = more immune)
Are independent contractors immune?
No
Are school boards, administrators, teachers, and bus drivers immune?
GR:
-School bds, principals, teachers, and coaches = yes, immune.
-Bus driver = immune when driving kids, not immune with empty bus
BUT:
When board has insurance, liable up to the policy limit
Are recreational facilities of a municipality immune?
Yes. Only liable for gross negligence. (even the maintenance of a facility = immune; e.v., driving a trash truck miles away)
Are public doctors immune?
Test:
1) can doctor select his patients
2) can he choose the treatment options
3) can he charge separately
Are police, firefighters, and ambulance workers immune?
1) racing to an emergency = yes, immune
2) non-emergency situation = not immune
What is the notice requirement in bringing negligence actions against a municipality (city/town)?
-notice must be in writing and given to a designated officer of the municipality within 6 months from the time the COA arises
-notice must go to a) city/town attorney, b) mayor, or c) the chief executive
Is a municipality liable for nuisance?
Yes. If you can sue for the creation/maintenance of a nuisance, municipality liable to the same extent as a private person for injuries resulting from that nuisance
-e.g., if a street is closed off, municipality is liable for injuries caused by negligence
BOP = if unathorized by law to create the nuisance, a simple showing of the dangerousness of the condition, otherwise, normal BOP
-Notice requirement applies
When may a governmental body exercise eminent domain?
1) public need for property, AND
2) good faith offer to purchase
What amount is paid if no agreement is reached for property taken by eminent domain?
Fair market value
What happens if only part of a person's land is taken by eminent domain -- what compensation?
If taking some of a landowner's property has reduced the value of the rest, it's the residue. That is FMV day before taking - FMV day after.
What are jurors in condemnation cases called (eminent domain cases)?
Commissioners
Where a locality impliedly takes somone's property but does not expressly take by eminent domain, what remedy does a property owner have?
He can bring seek a declaratory judgment for "inverse condemnation." It is the exclusive remedy. (e.g., when a sewer broke and sent sewage all over someone's lawn)
Where a locality impliedly takes somone's property but does not expressly take by eminent domain, what remedy does a property owner have?
He can bring seek a declaratory judgment for "inverse condemnation." It is the exclusive remedy. (e.g., when a sewer broke and sent sewage all over someone's lawn)
Where a locality impliedly takes somone's property but does not expressly take by eminent domain, what remedy does a property owner have?
He can bring seek a declaratory judgment for "inverse condemnation." It is the exclusive remedy. (e.g., when a sewer broke and sent sewage all over someone's lawn)