Virginia Supreme Court Opinions Affecting Local Government Law: December 17, 2015, January 14, 2016 and February 12, 2016

By: Andrew McRoberts, Editor. This was posted Monday, February 15th, 2016

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The Virginia Supreme Court issued opinions on February 12, 2016, just before Jane Marum Roush’s second interim gubernatorial appointment to the Virginia Supreme Court expired.

This author does not typically make political commentary, but in this case, I will make an exception.  No matter how this situation happened, I hope that this issue will be resolved and that elected officials act in the interests of the Court and Commonwealth.  The Virginia Supreme Court should not be held hostage to petty politics.

Although no opinions directly relevant to local government law were issued on February 12, a couple of other important opinions relevant to Virginia local government law were issued earlier during Justice Roush’s time on the high Court, and due to busy-ness of its editor and primary author, these opinions were not posted to this blog.  This post brings the blog up-to-date, and includes two important opinions. One opinion issued December 17, 2015 deals with the important issue of the void ab initio doctrine and whether a void governmental act can provide the basis for estoppel.  Another opinion issued January 14, 2016 deals with issues related to a demurrer after grant of a motion craving oyer and important zoning/legislative principles such as the “fairly debatable” standard, the burden of proof on a zoning applicant challenging a governing body’s zoning decision, and who may be considered “similarly situated” in a challenge to a zoning decision on equal protection grounds.

The case summaries below are  taken from the Virginia Supreme Court opinions website. Click on the case number to read the opinion.

150150 Butler v. Fairfax County School Board 12/17/2015  Code § 22.1-296.1(A) requires, as a condition precedent to employment, that every applicant for employment by a school board must certify that he or she has not been convicted of any felony. An applicant who has been convicted of a felony prior to his or her application cannot fulfill this statutory condition precedent, and is not eligible to be hired. The statute is not ambiguous, and there is no inconsistency between this section and other Code provisions relating to school boards and teacher hiring, termination, or licensure by the Board of Education. Because of a prior conviction, the teacher in this case could not fulfill the statutory condition precedent to employment and the school board lacked authority to hire her, or to make a continuing contract with her the following year. The continuing contract therefore is ultra vires and void ab initio. There was no showing that the teacher reasonably relied on representations of the board to her detriment and, since the contract was void ab initio, it cannot form the basis for a claim of estoppel. The judgment is affirmed.

150335 EMAC, L.L.C. v. County of Hanover 01/14/2016  In an action for declaratory judgment and damages against a county and its board of supervisors, challenging the board’s decision to deny the plaintiff’s application for an extension of a conditional use permit for a sign, the circuit court did not err in granting the defendants’ demurrer and motion to dismiss. Considering the pleadings and documents brought before the circuit court for consideration on the demurrer by craving oyer, the plaintiff failed to show that it was situated similarly to another land owner which was granted an extension on its conditional use permit for a sign under county ordinances. Nor did plaintiff demonstrate that granting an extension of its permit was in the public interest. The judgment of the circuit court granting a demurrer and dismissing this action with prejudice is affirmed.

 

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