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44 Cards in this Set
- Front
- Back
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Counties, generally |
Unincorporated governmental districts, units of state government. Enjoys sovereign immunity |
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Cities, Towns and Municipal Corporations |
Cities must have a population greater than 5k, and a charter approved by the legislature. They are separate entities than the counties in which they reside. Towns, must have a pop. of over 1k, they are NOT independent of the counties in which they are located. Service Authorities or other quasi-municipal corporations |
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Powers of the Localities |
Localities have no inherent power, all authority must be expressly provided for in the legislatively-approve charter. A locality may generally not re-delegate its authority. Dillon's Rule applies |
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Dillon's Rule |
A locality may only exercise the enumerated in its charter or otherwise expressly granted to it. The means of implementing the power must be reasonable, and is essentially the same as the federal necessary and proper clause Uniform Charter Powers act allows SOME cities to exercise all powers necessary to promote the general welfare. |
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Power to Incur Debt |
A ballot vote or a special hearing must be held before bonds may be issued. Bonds, other than revenue anticipation bonds, may generally be issued for CAPITAL EXPENDITURES 10% limit on debt, except for revenue anticipation bonds, special fund bonds (revenues from the project funded), and several others |
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Power to Tax |
Localities may not impose an income tax but can levy other sorts of taxes |
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Licensing |
A locality may require a license for businesses, occupations. Usually levied on the basis of GROSS RECEIPTS rather than on the income, so as to be valid |
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Requirements for a Valid Ordinance |
1. Prior published notice worded to alert the residents who will be affected, 2. A Majority vote of the governing body at public meeting; AND 3. the ordinance is reasonably certain in application (not vague) |
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Grounds and Means of Challenging an Ordinance |
Invalidating an ordinance can be done by raising the invalidity as a defense, or a complaint for a declaratory judgment is sought.
a. it was not adopted properly, or b it was unconstitutionally vague c. it is arbitrary or discriminatory (usually means the ordinance is stupid, ineffective, wrong... Arbitrary=not smart) d. it is beyond the powers of the locality (Dillon's rule), or e. it is preempted by federal or state law |
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Preemption of Local Ordinances |
There is no equivalent "field" preemption in state law. 1. Express prohibition on the type of ordinance by the state 2. Local ordinances are inconsistent with state law: a. State prohibition of the activity (legalizing prostitution locally) b. state authorization of an activity (locality can't ban something that is otherwise legal to use) c. State law is silent... this is ALLOWED unless it violates Dillon's Rule (a situation sometimes tested by the bar) d. Some state regulation... no field preemption so the locality may pass ordinances |
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Comprehensive Plan |
A map with growth areas and zoning ordinances must be updated every 5 years. |
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Zoning Actors |
Zoning Administrator Board of Zoning Appeals Planning commission Governing Body (city council, county board of supervisors..) |
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Zoning Administrator |
A staff person who administers and enforces the regulatory scheme. may issue violation notices and prosecutes proceedings to compel the ordinance |
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Board of Zoning Appeals |
A quasi-judicial body set up by a locality to interpret zoning ordinances, rule on appeals from the Zoning Administrator's rulings, and grant variances, or special use permits. |
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Planning Commission |
An appointed group that conducts public hearings as the zoning ordinances and map amendments and makes recommendations to the governing body. Advises localities required to update their comprehensive plan |
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Governing Body |
A city or town council, or county board of supervisors, takes final action on the comprehensive plan, zoning ordinance, or map amendments. Passage, or failure to pass, a zoning plan may be challenged in court within 30 days. |
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BZA Review Proceedings |
May hear and decide final orders of the zoning administrator Notice of appeal must be given to the administrator and board within 30 days after the administrator's decision BZA may authorize variances where: 1. strict enforcement would result in undue hardship, NOT shared by other properties in the zoning district, and 2. that granting of the variance will not be detrimental to adjacent property or change the character of the district NOT FREELY GIVEN |
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Conditional Zoning |
Applicants may seek a conditional use permit to undertake a particular form of development or use of the property. If not granted outright, the applicant may submit PROFFERS of conditions to buy over the locality. Proffers include self-imposed limits, payment for roads, sewers, schools, etc. |
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Effect of New or Revised Ordinance Provisions |
1. Grandfathering Uses in Place Before the Change. Lots, activities, or signs that preexisted the current zoning ordinances are called Lawful, Non-Conforming Uses. They are lawful but cannot be enlarged, structurally altered, rebuilt after substantial destruction, or resumed after Abandonment. TWO YEARS OF DISUSE is treated as abandonment. 2. Development Plans. Almost no such thing as VESTED RIGHTS. A landowner has now vested right to develop land in accord with prevailing zoning. Any change made by locality will be binding. EXCEPT: 1. The locality makes a significant affirmative act supporting a particular planned use 2. The landowner relies in good faith upon that act 3. and, incurs extensive obligations or substantial expenses in diligent pursuit of specific project |
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Affirmative Government Acts |
1. Locality has accepted proffers or itself proffered conditions 2. the governing body has approved an application for rezoning for a specific use 3. the government body or BZA has granted a special exception for that use 4. The BZA has approved a variance 5. A preliminary subdivision plat or site plan has been approved and the applicant diligently pursues approval of the final plat 6. The governing body or its designated agent approve a final subdivision plan 7. The zoning admin. issued a final written order regarding the permissibillity of a specific use |
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Judicial Challenges to BZA Decisions |
Court and Time. Circuit court, within 30 days of the decision. Must file a writ of certiorari. If granted, the burden of proof is a preponderance of the evidence. Procedure: 1) Review the record made before the BZA and, 2) take testimony if necessary Presumption and Grounds for Granting the Writ: 1) the petition shows that the BZA applies the law incorrectly or was plainly wrong. Usually results from a misinterpretation of the zoning ordinaces 2) The petition can show, using the ADMINISTRATIVE RECORD ITSELF or additional evidence, the the decision was in error as to: a. fact-finding, or b. the sufficiency of those facts meet the standard under local ordinances. |
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Spot Zoning and Downzoning |
Peicemeal, spot zoning, or downzoning, are actions amending the zoning ordinance and imposing on one or two parcels a more restrictive or less remunerative development option Standard of review is "Fairly Debatable." If fairly debatable, the courts will not overrule the locality.
If landowner does so, local body must show that prior zoning was mistaken, or that circumstances have changed. |
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Appeal from the Circuit Court regarding zoning |
Appeals from the Circuit Court go to the VA Supreme Court |
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Locality's Contract Authority |
The contract for a particular activity must be authorized (Dillon's Rule). Anyone who Ks for an unauthorized activity does so at his own peril. Contracting Outside of the locality's authority is known as ultra vires and is unenforceable. All otherwise authorized uses (read they have the power to do an act) must be approved by the governing body. |
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FOIA Requests |
Generally, the public has a right to all public records unless specified otherwise. The public body's response must be made promptly, but in all cases w/in 5 working days after receiving the request The response must indicate that the records are being release, withheld due to a law, a portion is withheld (which must be described and the gov must cite the VA Code authorizing the withholding), the records do not exist, or that addition time is required (7 day extension) |
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Failure to Respond to a FOIA Request |
Failure to respond is deemed an automatic denial of the request and violates VA Code. |
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FOIA Exemptions |
Over 100 exempted statutes, the Bar will have to give us the statute to ask. Narrowly construed, burden of proof is on the public body to prove the exemption applies NO EXEMPTIONS APPLY TO CONTRACTS BETWEEN A PUBLIC BODY AND ITS OFFICERS OR EMPLOYEE RECORDS (SALARY, REIMBURSEMENTS, ETC) and NONEMEPTION PORTIONS OF A REPORT OF A CONSULTANT HIRED BY OR AT THE REQUEST OF A LOCAL PUBLIC BODY WHICH HAVE BEEN DISTRIBUTED TO THE MEMBERS OF THE LOCAL BODY |
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Public Meeting Requirements |
All meetings of public bodies are required to be open, and may not be conducted via telephonic, video, or other communications. A least one copy of all agenda packets, unless exempt, and all material furnished to members of a public body will be made available to the public. Minutes be taken at all regular, open meetings |
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Close or Executive Sessions |
Not allowed unless the body has taken an affirmative recorded vote in an open meeting 1. identifying the subject matter 2. stating the purpose of the meeting 3. and making specific reference to the applicable FOIA exemption Usually includes: employment applications and personnel decisions, disposition of publicly held property, private matters not related to public business, discussion of actual or probable litigation, public contracting (interview bidders, negotiations, etc) At the conclusion, the body must immediately reconvene and take roll call |
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Enforcement of FOIA |
Any failure to follow procedures is a violation and a citizen may file a PETITION FOR MANDAMUS or an injuction. Must file an affidavit showing good cause IF a court fids the body violated FOIA, the petition is entitled to recover reasonable costs and attorney's feeds if he SUBSTANTIALLY PREVIALS |
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Sovereign Immunity, Claims against Counties |
1. Counties are absolutely immune from liability in TORT 2. Contract and Equitable Monetary Claims require PRESENTMENT, and 30 day notice of appeal, AND you must file within 6 months. |
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Claims against Counties, Presentment |
No action may be maintained against a county upon any claim or demand UNTIL THE CLAIM IS PRESENTED to the governing body for allowance. |
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Sovereign Immunity of Cities/Towns |
1. Sovereign immunity only covers governmental functions: police forces, fire dept., public educational facilities, garbage removal services, emergency response to hurricane damage, hospitals and nursing facilities, operation of jails, design and layout of roads, and maintenance of traffic lights. |
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Claims against the Cities/Towns: proprietary functions |
Cities/Towns are liable for claims arising from their proprietary function Proprietary functions are those that promote the comfort, safety, and happiness of the residents, but are not inherently governmental. These include: Road Maintenance (but design of the road is a gov. function) Provision of public water, sewage, storm drainage, and municipal electric power. Housing Authorities. |
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Difference between Governmental Function and Proprietary Functions |
Governmental function if: it is the exercise of an entity's policy, legislative, or discretionary authority. If the function is a ministerial act and involves no discretion, it is proprietary. When the negligent ac is one involving maintenance or operation of the service being provided, the function is deemed to be proprietary |
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Liability of Officers & Employees |
Although the gov entity may be immune, P can still attempt to sue the employee. 1) Is the employing governmental unit immune? If no, then sue. If yes, then 2 2) Top level officers, governors, mayors, legislators, city/county counsel members, heads of departments and judges, share immunity for the entity in which they work automatically. If a lower level employee, apply the following factors: a. The nature of the function performed by the employee (public vs private) b. the extent of the governmental entities interest and involvement in the function c. the degree of control and direction exercised by the gov entity over the employee d.*** whether the alleged wrongful act involved the exercise of judgment and discretion (the more discretion the more likely they will be immune) 3. Independent Contracts: A person who is not a regular employee, but instead is an independent contractor performing a specific task, cannot claim immunity. |
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School Boards, Admins, Teachers, and Bus Drivers |
They are immune unless the negligence is gross or wanton, but waive that immunity up to the level of any insurance they have purchased. Thus, you can sue a school bus driver for ordinary negligence and recover up the insurance amount. |
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Liability of Recreational Facilities |
Public rec centers are only liable for gross or wanton negligence in the operation of the parks. |
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Liability of government-employed doctors |
Measured by the 4 factor test. UVA docs not immune because they look like independent contractors. |
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Liability in driving situations: police, firefighter, and ambulance |
Employees are liable for damages occurring during non-emergency situations Immune for liabilities that arise during emergency responses. |
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Liability for Gross Negligence and Intentional Torts |
1. Employee liability: liable for gross neg. or intentional torts
2. Locality may not be sued directly for gross negligence or intentional torts of the employee |
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Local Liability, Non-Immunity Aspects |
Localities are not liable unless notice in writing is given to a designed officer WITHIN 6 MONTHS after the cause of action arise. Notice must be give to: the mayor/leader/board member or the locality's attorney. Permitted delivery methods: hand, US Mail, and commercial delivery) STRICT COMPLIANCE |
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Nuisance Claims Against Cities or Towns (NOT counties) |
Liable to the same extent as a private party for injuries resulting from the creation or maintenance of a nuisance. Nuisances arising from governmental functions are actionable. 1. Conditions created in authorized activities: locality can be sued for nuisance of one its proper activities if it is negligent in creating the dangerous situation 2. Unauthorized activity, localities are liable that the locality created a dangerous situation 3. 6 month NOTICE REQUIREMENT APPLIES TO NUISANCE CLAIMS |
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Claims by a County or City |
Treated just like normal Ps. SOL does run against localities (But not the state) Equitable defenses may not be raised against the locality. |
