Virginia Government

Front 1

In Va, how many people must be in a community for it qualify as a "city"?

Back 1

5000

Front 2

In Va, how many people must be in a community for it qualify as a "town"?

Back 2

1000

Front 3

In Va, which of the following are "municipal corporations": Towns? Cities? Counties?

Back 3

Only towns and cities are municipal corporations.

Front 4

In Va, how are counties created?

Back 4

The entire Commonwealth is divided into counties by the General Assembly by default. (Communities can later apply for charters to be cities or towns, but everything starts as a county.)

Front 5

In Va, what is the relationship between towns and cites? Between towns and counties?

Back 5

Towns are not independent from counties and rely on them. They have no relationship to cities.

Front 6

In Va, which of the following have tax power: cities? towns? counties?

Back 6

Only cities have power to tax.

Front 7

In Va, what is the common method of taxation?

Back 7

Property taxes

Front 8

In a bad economy, what to some cities try to do in order to get our of financial trouble?

Back 8

Some cities ask permission to “revert” back to town status in a bad economy, since they can they rely on counties for services.

Front 9

In Va, what are "service authorities"?

Back 9

Quasi-municipal corporations for defined purposes (e.g., water, sewer, airport authorities, toll road authority). These are often joint projects of multiple localities and must be created by General Assembly

Front 10

In Va, what is the document called that incorporates a city or town?

Back 10

A charter

Front 11

In Va, where does a city gets its express powers? its implied powers?

Back 11

In Va, all powers of a locality must be expressly provided in the legislative charter or by statute. There are NO implied powers. (Dillon's Rule)

Front 12

In Va, what is Dillon's Rule?

Back 12

A locality can only exercise those powers expressly granted by statute

Front 13

How does Dillon's Rule apply if a statute grants a specific power to a city, but it does not set the method the city should use for exercising the power?

Back 13

If the legis has not specified the method for exercising the power, the locality may make a “reasonable implementation” of the clearly-given power

Front 14

In Va, how can powers of a locality be redelegated to other agencies and entities?

Back 14

Powers granted to the locality cannot generally be redelegated. However, if it’s not policy setting, localities can give agencies administrative authority to enforce its local rules

Front 15

In Va, what must a locality do before issuing bonds?

Back 15

It must have a ballot vote or special hearing.

Front 16

In Va, bonds are limited to what purpose?

Back 16

Capital expenditures

Front 17

In Va, what is the general rule capping the total value of bonds that a locality can issue?

Back 17

A locality cannot issue general obligation bonds in excess of 10% of the value of real estate subject to taxation (with some exceptions)

Front 18

In Va, what are the exceptions to the general cap on bond issuance?

Back 18

10% cap doesn't apply to...
a. Revenue anticipation bond: to be paid back from expected taxes in place within a year
b. Special fund bonds: repayment will flow directly from the revenue generated by the funded project; must be paid down in 5 years.
c. Other exceptions: 10% cap doesn’t apply to (1) projects funded by money assessed on project beneficiaries (e.g. homeowners along the to-be-built sidewalk); (2) debts from civil/criminal judgments agst the city; and (3) debts from daily expenses (e.g., supplies)

Front 19

What is a revenue anticipation bond?

Back 19

A bond to be paid back from expected taxes in place within a year

Front 20

What do you call a bond to be paid back from expected taxes in place within a year?

Back 20

Revenue anticipation bond

Front 21

What is a special fund bond?

Back 21

A bond whose repayment will flow directly from the revenue generated by the funded project; must be paid down in 5 years.

Front 22

What do you call a bond whose repayment will flow directly from the revenue generated by the funded project?

Back 22

A special fund bond

Front 23

In Va, what is the police power?

Back 23

Locality can adopt rules and regs reasonable and necessary to protect its inhabitants
[[a. Though nearly unlimited, it must related to health, safety, morals, and welfare.
b. Must not be arbitrary, discriminatory, or unreasonable]]

[[unlikely to be tested]]

Front 24

In Va, can localities set income taxes?

Back 24

No.

Front 25

In Va, can localities license business and collect licensing fees?

Back 25

Yes.

Front 26

In Va, can localities set business fees based on "gross receipts"?

Back 26

Yes. Even though this looks like an income tax (which localities cannot do), the Va Sup Ct has said this is fine.

Front 27

In Va, is the violation of a local ordinance a crime? If so, what kind of crime?

Back 27

Yes, it is a misdemeanor.

Front 28

In Va, what 3 things must a locality do for an ordinance to be valid?

Back 28

i. Must have prior published notice that is worded to alerts the affected residents (e.g., people in the area of a zoning change)
ii. Must be adopted by a majority vote of the governing body at a public meeting
iii. Must be reasonably certain (not vague) in application

Front 29

In Va, can an ordinance be adopted in a closed session of the city council?

Back 29

No. It must be a public meeting.

Front 30

In Va, in challenging an ordinance, what will the court presume regarding the ordinance's validity?

Back 30

Courts assume ordinances are valid. Burden is on challenger to show otherwise.

Front 31

In Va, what are two ways to challenge an ordinance?

Back 31

a. Can be challenged through a complaint seeking declaratory judgment (preferred)
b. Or it can be challenged as a defense to violation

Front 32

In Va, what are 5 possible grounds for attacking an ordinance?

Back 32

An ordinance may be invalidated if it is:
a. not adopted properly, or
b. unconstitutionally vague, or
c. arbitrary (i.e. dumb) or discriminatory (i.e. equal protection), or
d. beyond powers of locality, or
e. preempted by federal/state law

Front 33

In Va, will extensive regulation by the General Assembly in a particular area preempt ordinances on the same subject by localities?

Back 33

No. Generally, extensive regulation is NOT sufficient to preempt local law.

Front 34

In Va, if the General Assembly specifically authorizes an activity, can a locality ban it?

Back 34

No (preemption exception)

Front 35

True or false: zoning powers are part of police powers in Virginia.

Back 35

True.

Front 36

What is a zoning administrator?

Back 36

Zoning administrator: enforcement officer who issues violation notices and prosecutes them.

Front 37

What is the "Board of Zoning Appeals"?

Back 37

Quasi-judicial body to interpret zoning ordinances, rule on appeals of actions by zoning administrators, and grant variances from ordinances

Front 38

What is a "special use permit"?

Back 38

Special use permit: allows a landowner to conduct an activity not generally permitted (i.e. it’s not a by-right use, like running a tattoo parlor)

Front 39

In Va, what is a "comprehensive plan" mean in zoning?

Back 39

This is one way the locality can exercise its zoning powers. It's basically two things:
(1) a big zoning map made publicly available, AND
(2) zoning ordinance regarding growth areas

Front 40

In Va zoning law, what is a "planning commission"?

Back 40

Planning commission: an appointed group that conducts public hearings about ordinance and map amendments and makes recommendations to the locality governing body

Front 41

In Va, what do you call the appointed group that conducts public hearings about ordinance and map amendments and makes recommendations to the locality governing body?

Back 41

A planning commission

Front 42

In Va, what do you call a permit that allows a landowner to conduct an activity not generally permitted?

Back 42

A special use permit

Front 43

In Va, what do you call the enforcement officer who issues violation notices and prosecutes them?

Back 43

The zoning administrator

Front 44

In Va, what do you call the quasi-judicial body to interpret zoning ordinances, rule on appeals of actions by zoning administrators, and grant variances from ordinances?

Back 44

The Board of Zoning Appeals

Front 45

Timing: In Va, how long do you have to file notice of appeal of a decision by the zoning administrator? Where do you file it?

Back 45

Within 30 days of decision; you give notice of appeal to zoning administrator

Front 46

In Va, what are the prerequisites to issuance of a variance?

Back 46

Variances can be authorized where BOTH:
(1) strict enforcement of ordinance would result in undue hardship (special to the particular property) AND
(2) granting of variance will not be substantially detrimental to nearby property

Front 47

In Va, are variances granted often? Why or why not?

Back 47

They are RARELY granted b/c of equal protection concerns

Front 48

In Va, if an applicant with a zoning request wants to make his venture more attractive, what might do?

Back 48

An applicant might submit written proffers of conditions to make the proposal more acceptable (e.g., building a turn land, adding sewer lines), which then become part of the ordinance (i.e. breaking the promise becomes a misdemeanor).

Front 49

If an applicant submits written proffers of conditions to make a zoning proposal more acceptable (e.g., building a turn land, adding sewer lines), what happens if these are accepted but he fails to meet his promises?

Back 49

These "proffers" become part of the ordinance, so breaking the promise becomes a misdemeanor.

Front 50

In Va, which of the following locality's powers are optional: power over zoning? Power to regulate subdivisions?

Back 50

Zoning power is optional. But localities MUST regulate subdivisions (E.g., manage for flood control, road construction, etc).

Front 51

Timing: In Va, if you want to appeal a subdivision regulation to circuit court, how long do you have to file? Where do you file it?

Back 51

Within 60 days of written denial. Appeal is by petition to the Circuit Court.

Front 52

In Va, what do you call otherwise unlawful lots, activities, or signs that predate the zoning ordinance--and thus are "grandfathered" in?

Back 52

"Lawful conforming uses"

Front 53

In Va, if an otherwise unlawful structure is grandfathered in, what actions by the owner will overturn the grandfathering?

Back 53

Any enlargement, structural change, abandonment (2 yrs disuse), or rebuilding will overturn grandfathering.

Front 54

Timing: In Va, if an otherwise unlawful structure has been grandfathered in, how many years of disuse will qualify as "abandonment" and thus overturn grandfathering?

Back 54

Two years disuse = abandonment

Front 55

In Va, do landowners have a “vested right” to develop land as though the zoning will not change?

Back 55

No.If zoning changes as or before they build, that’s too bad for them (with a rare exception).

Front 56

In Virginia, under what circumstances will a landowner have a "vested right" to build according to current ordinances?

Back 56

Rare exception: development rights may be “vested” if (ALL):
(1) locality makes a “significant affirmative act” supporting the planned use;
(2) landowner relies in good faith on the governmental act, AND
(3) incurs extensive obligations or substantial expenses in diligent pursuit of the project

Front 57

In Va, what are some examples of "affirmative actions" that may vest development rights under existing ordinances?

Back 57

Examples of affirmative acts: accepting proffers specifying the use; approving a variance; approving a subdivision plan

Front 58

Timing: In Va, if you want to challenge the BZA's decision, how long do you have? What and where do you file?

Back 58

30 days: file a petition for a writ of certiorari in the Circuit Court

Front 59

In Va, if the circuit court is reviewing a BZA decision, can it review the BZA record? Can it take testimony?

Back 59

Yes and yes. The circuit court may review the BZA record and take testimony

Front 60

In Va, what are the 2 grounds on which you can ask the circuit court to review a decision of the BZA?

Back 60

1. Law: BZA applied law clearly erroneously (i.e., misinterpreted the ordnances)
2. Fact: BZA decision was “in error” as to (1) factfinding or (2) sufficiency of facts

(Must do so based on the administrative record itself or new evidence.)

Front 61

What is spotzoning/downzoning?

Back 61

These are actions amending the zoning ordinance to impose more restrictions on a property or subset of properties

Front 62

In Va, if you want to challenge spotzoning/downzoning, what must you show?

Back 62

Landowner must show evidence showing there were no changes sufficient to justify re-zoning. If matter is fairly debatable, landowner loses.

Front 63

In Va, what do you call actions amending the zoning ordinance to impose MORE restrictions on a property or subset of properties?

Back 63

spotzoning / downzoning

Front 64

Who has the burden to show that spotzoning/downzoning is valid?

Back 64

Though there is still a presumption of validity, the burden shifts to local body to show it’s okay (meaning EITHER (a) earlier zoning was mistaken or (b) new circumstances)

Front 65

In Va, to what court do you appeal zoning issues after you lose at the circuit court?

Back 65

To the Virginia Supreme Court (not the Court of Appeals)

Front 66

Is an action by the BZA required to get a building permit?

Back 66

No BZA action is generally required to get one, just a small fee.

Front 67

What do you call the documents required before you can commence construction?

Back 67

A building permit

Front 68

In Va, what is the ultra vires doctrine as it applies to a locality's power to enter into contracts?

Back 68

This is the doctrine that says that a contract that is beyond the scope of locality’s power is unenforceable. (This can even be a defense by the locality to a suit!)

Front 69

In Va, what are 3 bases of defense under the ultra vires doctrine?

Back 69

a. Object of K is beyond power of locality
b. Manner of contracting is prescribed but not followed (i.e. bid process)
c. Agent lacked authority (e.g. the mayor lacks power to bind the locality)

Front 70

In Va, what do you call the doctrine that says that a contract that is beyond the scope of locality’s power is unenforceable?

Back 70

ultra vires doctrine

Front 71

The Commonwealth of Virginia has waived sovereign immunity for claims of what dollar amount?

Back 71

LESS than $100k. (Va Tort Claims Act)

Front 72

What is the name of the statute that waived tort liability for the Commonwealth of Virginia under a certain dollar value?

Back 72

The Virginia Tort Claims Act

Front 73

In Va, are counties immune from tort claims?

Back 73

Yes. (Va Tort Claims Act does NOT apply to cities, towns, and counties. Why? Dillon’s Rule: VTCA doesn’t explicitly mention counties, so they aren’t included.)

Front 74

Hypo:
In Va, you want to sue your county for property damage incurred when road builders left concrete on your property. Can you bring a tort suit? How can you recover damages?

Back 74

You cannot bring a tort suit, because counties are immune in tort. But you might collect on a suit for implied K to pay for property damaged/taken under the Takings Clause of the Va Constitution (i.e., inverse condemnation suit, which is in K)

Front 75

In Va, what must you do before suing a county for contract or equitable relief?

Back 75

Presentment Requirement: before suing, you must present the claim/demand to the governing body for allowance.

Front 76

In Va, what is the "presentment requirement"?

Back 76

Presentment Requirement: before suing, you must present the claim/demand to the governing body for allowance. You then cannot suit for 30 days. And you must PLEAD presentment in your suit or it can be demurred.

Front 77

In Va, what do you call the requirement that before suing a locality for contract or equitable relief, you must present the claim/demand to the governing body for allowance.

Back 77

The "presentment requirement"

Front 78

Timing: In Va, how long must you wait before filing suit against a locality AFTER presenting the claim to the governing body?

Back 78

30 days.

Front 79

In Va, can you bring a claim against the locality in General District Court?

Back 79

No. You must bring such claims in circuit court.

Front 80

In Va, are cities and towns immune from tort suits?

Back 80

They have sovereign immunity only for government functions (as opposed to proprietary functions)

Front 81

In Va, how do you distinguish between government functions and proprietary functions?

Back 81

Test: A function is governmental if it is an exercise of political, discretionary, or legislative authority.
Generally, when the act involves maintenance or operation of the service being provided, it is proprietary.
--Tiebreaker: If the function has both govt’al and proprietary aspects, governmental prevails.

Front 82

In Va, if you were injured by an act by a city or town that involved both government and proprietary functions, can you bring a tort suit based on the act, or is the city/town immune?

Back 82

If the function has both govt’al and proprietary aspects, governmental prevails, and the locality will be sovereign.

Front 83

In Va, what is the general framework for determining whether an officer/employee of a locality will be immune from suit?

Back 83

Step 1: Is the employing governmental unit immune?
Step 2: Should the individual employee share the immunity?
1) Top-level people: governors, mayors, legislators, locality council members, heads of major depts, and judges automatically share the immunity.
2) Lower level employees: 4 factors to consider (listed elsewhere)
3) Independent Contractors: Never immune

Front 84

In Va, do governors, mayors, and judges always share in the sovereign immunity of the locality?

Back 84

Yes.

Front 85

In Va, when do lower level employees of a locality share in the locality's sovereign immunity?

Back 85

4 factors to consider:
i) The nature of the function provided (public or private?)
ii) The extent of the govt’al entity’s interest (does it matter how the job gets done?)
iii) The degree of control and direction exercise by the govt’al entity
iv) Whether the wrongful act involved the exercise of judgment and discretion

Front 86

In Va, when do independent contractors hired by the locality share in the locality's sovereign immunity?

Back 86

Never.

Front 87

In Va, can an employee of a locality have sovereign immunity even when the locality for which he works is not immune?

Back 87

NO. The only question is whether he SHARES in the locality's immunity.

Front 88

In Va, if a school, school board, administrator, or bus driver has insurance against liability, do they still have sovereign immunity?

Back 88

Special rule:
If they have insurance, their liability is limited to their coverage (immune thereafter)

Front 89

In Va, can recreational facilities be liable for damages?

Back 89

Liable only for gross or wanton negligence. (Special rule for recreational facilities.)

Front 90

In Va, are doctors who work for the locality immune from suit?

Back 90

Special rule for doctors:
They are not immune UNLESS they are govt controlled, which is true if they decide (1) their patients; (2) their treatments; and (3) their fees.

Front 91

In Va, when is an emergency responder immune from liability?

Back 91

Special rule:
If responding to an emergency situation, they are performing a governmental function and are thus immune. Otherwise no immunity.

Front 92

In Va, when are employees immune from gross negligence?

Back 92

NEVER. (But awfully hard to prove)

Front 93

In Va, can a locality be liable for the gross negligence or intentionally tortious behavior of its employees?

Back 93

No. (Narrow execption for claims involving recreational facilities: if you can show gross neg of employees, you can also sue the locality)

Front 94

Timing: In Va, when suing a locality, whom must you give written notice of suit, and how long do you have?

Back 94

Within 6 months after the cause of action ARISES, you must give notice in writing to the designated municipal officer (unless injuries prevent notice)

Front 95

In Va, when suing a locality, when you give notice to the designated municipal officer of your suit, what must be in this notice?

Back 95

Must describe claim nature, date, time, and place.

Front 96

In Va, when suing a locality, when you give notice to the designated municipal officer of your suit, who qualifies as such an officer?

Back 96

Either (1) city/county attorney, (2) mayor, OR (3) chief executive of locality.

Front 97

In Va, when you sue the locality and give notice to the designated municipal officer, in what form must this notice be?

Back 97

Any form. Form is not important. It just has to be within 6 months of the cause of action arising.

Front 98

In Va, can a locality be liable for the negligence of its employees?

Back 98

Yes, if the locality is not otherwise immune, the locality can be liable for acts of agents if it had power over the agent and he was acting in scope of employment.

Front 99

In Va, can a locality give its employees insurance against negligence?

Back 99

Yes.

Front 100

In Va, under what circumstances can you sue a locality for a nuisance?

Back 100

a. Localities are liable to the same extent as private individuals for injuries resulting from nuisances. E.g., blocked streets are a nuisance if the impediment is substantial
b. Proof: If the locality had authority for the act causing nuisance, you must show negligence. Otherwise, you only need to show “dangerousness of condition.”
c. Remember: the notice requirement applies

Front 101

In Va, can localities sue as PLAINTIFFS in contract and tort cases?

Back 101

Yes. Notes:
1. Statute of limitations applies.
2. If sued by a locality, you may NOT raise equitable defenses.

Front 102

In Va, if a locality sues you for on a tort or contract action, can you raise an equitable defense? Can you raise a statute of limitations defense?

Back 102

You CANNOT raise equitable defenses, but statutes of limitations DO apply.

Front 103

In Va, can localities get property through purchase, gift, lease, bequest, or condemnation?

Back 103

Yes, so long as acquisition is for the purpose of exercising its authorized functions.

Front 104

In Va, can a locality condemn personal (i.e., not real) property?

Back 104

Yes.

Front 105

In Va, under what circumstances may a locality condemn ("take") property?

Back 105

Two requirements:
1. There must is a public need for the property, which must be declared in the resolution/ordinance directing the condemnation
2. The condemnor must make a good faith offer to purchase the property

Front 106

In Va, can a locality take private property to improve its tax base?

Back 106

No. This is not a valid purpose.

Front 107

In Va, can a locality take private property to create jobs for local residents?

Back 107

No. This is not a valid purpose.

Front 108

In Va, what must a condemnor do before taking a property?

Back 108

The condemnor must make a good faith offer to purchase the property

Front 109

In Va, what is an action called where the locality attempts to "take" private property?

Back 109

A condemnation proceeding

Front 110

In Va, what is the measure of recovery in a condemnation proceeding?

Back 110

Measure of recovery: fair market value + FMV impact on residue

Front 111

What is "residue" and what is its significant in a Va condemnation action?

Back 111

When taking of some property causes damage to the remaining property (residue) the owner can recover for those damages as well (calculate difference between value of residue day before and day after the taking)

Front 112

In Va, what are the factfinders called in a condemnation suit?

Back 112

“jurors,” and they are selected like civil jurors (Batson applies)

Front 113

In Va, what is an action for inverse condemnation?

Back 113

When a property is taking without formal condemnation, property owner can file an “inverse condemnation” claim seeking declaratory judgment (Based on 5th Am’s Takings Clause)

Front 114

In Va, can a locality sell or lease public property?

Back 114

Generally yes, with these limitations:
i. Sale of land must be by an ordinance passed by 3/4s of governing body
ii. Leases of real property by a locality are limited to 40 yrs

Front 115

Timing: In Va, what is the maximum length of time that a locality may lease public property?

Back 115

40 years