The cases involve (1) the Gloucester County School Board and the Public Procurement Act, (2) Albemarle County and sovereign immunity, (3) a Spotsylvania County assistant high school superintendent and a claim of negligent and gross negligent failure to prevent an attack on another student, and (4) the City of Hampton and the standing of the plaintiff, a committee of petitioners authorized to act under the City Charter.

The following summaries come from the Virginia Supreme Court website (click on the case number to read the opinion):

110410 Professional Bldg. Maintenance Corp. v. School Board 04/20/2012 In a lawsuit asserting causes of action under the Virginia Public Procurement Act, Code § 2.2-4300 et seq., the plaintiff’s allegations that it submitted the lowest bid in response to a contract solicitation by a county school board, which failed to either award it the contract or to determine that plaintiff was not “responsible” as required by the Act, and that certain scores given to its bid had no basis in fact and did not bear a rational relationship with the information provided, were not merely conclusory averments, and sufficiently state a cause of action under the Act. Thus the circuit court erred in sustaining the defendant’s demurrer, and the action is remanded for further proceedings consistent with this opinion.

110733 Seabolt v. County of Albemarle 04/20/2012 The circuit court lacked subject matter jurisdiction to hear a tort claim against a county arising from the alleged failure to maintain a public park, and did not err in dismissing the complaint. Counties, as political subdivisions of the Commonwealth, enjoy the same tort immunity as does the sovereign and cannot be sued unless and until that right and liability are conferred by law. Neither the Virginia Tort Claims Act, nor the recreational facilities statute, Code § 15.2-1809, waives the immunity of Virginia counties from tort claims, and the presentment and appeal provisions in Code §§ 15.2-1243 et seq. also do not abrogate sovereign immunity of counties in tort. The judgment of the circuit court dismissing the complaint is affirmed.

110754 Burns v. Gagnon 04/20/2012 In a suit alleging negligence and gross negligence against an assistant high school principal for failure to prevent an attack upon the plaintiff by a fellow student, there was no evidence that this defendant knew or should have known that plaintiff was in danger of serious bodily injury or death, and no “special relationship” is found between principal and student. The principal had a duty to supervise and care for the plaintiff as a reasonably prudent person would under similar circumstances. The issue whether he undertook the duty to investigate a reported threat of an impending attack, and to notify security personnel, is a factual matter to be determined on remand, along with whether plaintiff can show the elements for liability set forth in the Restatement (Second) of Torts § 324A. While the principal does not have immunity under Code § 8.01-220.1:2, common law sovereign immunity applies because he was required to exercise judgment and discretion in responding to the reported threat of an attack. However, the common law immunity of the principal does not obviate claims for gross negligence, and the trial court erred in refusing to instruct the jury on that theory. Various statements admitted in the prior trial were either non-hearsay or admissible under an established hearsay exception, and thus it was not an abuse of discretion to admit them. The case is affirmed in part, reversed in part, and remanded for a new trial limited to the gross negligence claim against this defendant.

111144 Deerfield v. City of Hampton 04/20/2012 In a declaratory judgment proceeding against a city and a developer, brought by a committee of citizens initially constituted pursuant to a city charter provision to seek a referendum on repeal of an ordinance, the circuit court did not err in dismissing the action, albeit for the wrong reason. After the city council’s action repealing the ordinance, the citizens’ committee lacked standing to challenge the development. The judgment of the circuit court dismissing the committee’s complaint is affirmed.

Look for more on some of these cases on this blog.

As is typical, I found the Justices to be polite, attentive, intelligent and inquisitive.  Not surprisingly, the justices asked good questions which went to the heart of the issues to be decided.  I came away with a renewed respect for the Court and our Virginia judicial system.  ….  And this was BEFORE I learn what they decide in my client’s case!

As it typical, there were a number of spectators in attendance.  If you have never observed at oral argument, consider doing so.  I have attended many oral arguments in recent years in local government cases, and have learned a bit about how the justices think and act in general, and some of their views on local government issues in particular.  I’ve found this information to be valuable in advising my local government clients.

The Supreme Court room is awesome, in the traditional sense of the word – it inspires awe.  If you get there a bit early, you can sit there and have few distractions.   The Court does not allow any cell phones, smart phones or other electronic devices.  You have time to observe the enormous temple-like columns behind the dais, the veil of velvet hangings in between, the paintings on the walls of former justices with stern faces, the three-story high ceiling, the thick red carpeting, the long pew-like seats for the spectators, the lonely-looking podium for the one making argument.  You get to sit, in near total silence.  In today’s busy, connected society, there are few times available to you to be disconnected.  Enjoy it.

A few minutes before the arguments start, the Clerk, in a kind voice, gives a briefing of what to expect and how to make the best impression upon the justices (“Always start with ‘May it please the Court, my name is….’”).  There are a few hushed conversations here and there, but there is mostly silence, with plenty of time to simply sit, free of electronic distractions and take in the beautiful and imposing room.

Giving oral argument at the Virginia Supreme Court is participating at the highest level of our state government, in the judicial branch.  It an important responsibility, not only to your client, but to the Commonwealth of Virginia itself.  I have enjoyed my times there.  I hope that one day you get a chance to give or attend an oral argument there.

The 2012 honorees include a number of women attorneys who practice in local government.  They include:

• Ann Neil Cosby, Sands Anderson PC, Richmond (also Deputy County Attorney for Caroline County and author of the Virginia Environmental Law Blog)

• Alexandra Fannon, Greater Richmond Bar Foundation, Richmond (formerly City of Richmond Attorney’s Office)

• Cynthia Hudson, Hampton City Attorney, City of Hampton (our very own LGA Secretary-Treasurer)

Although not an attorney, the 2011-2012 President of LGA member Virginia Municipal League (and City Council member in Virginia Beach), Rosemary Wilson, is also honored.

The honorees will be celebrated at a gala luncheon on May 10 at the Richmond Marriott in downtown Richmond. The “Influential Woman of the Year” for 2012, to be voted on by the 2012 honorees themselves, will be announced at this luncheon.

Congratulations to all of those honored, and for such a great showing by some of our fine local government attorneys!

102409 City of Richmond v. SunTrust Bank 03/02/2012 The question presented by this appeal is whether a municipal corporation has the authority to tax a non-exempt entity for the exempt entity’s ownership interest in property owned by the two entities as tenants in common. Because the municipal corporation’s arguments based on purportedly applicable case authority and a non “public purpose” use theory are without merit, and its statutory authority argument is procedurally barred, the circuit court’s judgment ruling that the city lacked the authority to impose the tax is affirmed.

Analysis of this case will be forthcoming from this blog.

Bus drivers in Albemarle County claimed that their rights under the Federal Labor Standards Act (FLSA) were violated, and sought unpaid wages, overtime, liquidated damages and attorney’s fees pursuant to 29 U.S.C. § 216(b) in a federal lawsuit filed in the U.S. District Court for the Western District of Virginia.  The Albemarle County School Board reported these claims to its CGL insurer, Republic Franklin Insurance Company, which denied coverage saying the claims were not “losses” arising from a “wrongful act” covered by its CGL policy.  On cross-motions for summary judgment, the federal judge agreed, finding in favor of the insurance company.  The court reasoned that payment of due wages and overtime was a “pre-existing duty” and therefore was not a “loss” and not a “wrongful act.” 

The Albemarle County School Board appealed, arguing that an FLSA violation was, indeed, a “wrongful act” and that although payment of due wages and overtime was a pre-existing duty, the payment of the liquidated damages and attorney’s fees was not, and therefore was a “loss” under the CGL policy.

The Fourth Circuit Court of Appeals (Niemeyer, Motz and Floyd, Circuit Judges) agreed with the School Board.

The Fourth Circuit held that the district court incorrectly used the “pre-existing duty” doctrine too broadly to not only negate any coverage for due wages and overtime, but also to find no “wrongful act” and no “loss”.  The Fourth Circuit cited the language of the CGL policies which call for insurance company liability in the event of a “wrongful act” — broadly defined to include  ”any breach of duty.”   A violation of the FLSA is plainly such a breach. 

The Fourth Circuit similarly relied upon the CGL’s policy’s definition of “loss” to include “any amount which an insured is legally obligated to pay as damages.”  The Fourth Circuit cited controlling U.S. Supreme Court precedent that the liquidated damages are not “fines or penalties.”  Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 707 (1944).  The Court also relied upon as persuasive Eleventh Circuit and U.S. District Court for the Eastern District of Virginia precedent that in the FLSA context liquidated damages and attorney’s fees are compensatory and not punitive in nature. Snapp v. Unlimited Concepts, Inc., 208 F.3d 928,934-35 (11th Cir. 2000); Lanza v. Sugarland Run Homeowners’ Association, 97 F. Supp. 2d 737, 740 (E.D. Va. 2000).

In summary, the Fourth Circuit stated, “because the underlying FLSA complaint against the School Board asserts claims for liquidated damages and attorneys’ fees arising, not from a preexisting duty, but because of the School Board’s alleged wrongful acts, we conclude that they are damages resulting from a claim for the alleged wrongful act and therefore are covered losses.”

This decision is significant for local entities that may be subject to FLSA claims because it squarely places FLSA claims within the scope of most CGL policies as alleged “wrongful acts” which may result in a “loss” insurable (and therefore to be defended) by their insurance companies.

That was the situation in rural Highland County, where private property owners erected a gate and blocked access to a roadway long used by the public.  This dispute  lead to a lawsuit by members of the public against the property owners and a recent opinion of the Virginia Supreme Court in the case of Dykes v. Friends of the C.C.C. Road, decided January 13, 2012.

Stipulated facts showed that the roadway in question was originally built and used by the Civilian Conservation Corps, the “C.C.C.” in the 1930s.  The roadway was used since then by the public for access between river valleys in the mountainous area, and for access to the George Washington National Forest.  Various public officials used the roadway on official business and considered it a public road.  In 1941, the Highland County Board of Supervisors noted an agreement for the private property owner to maintain a gate a cattle guard on the C.C.C. road at its intersection with a state highway.  If the property owner failed to do so, the state highway department (today, VDOT) “may remove [the] gate and cattle guard.”

However, no government record shows that either the County or the state formally adopted the road as public, and the road was not shown on official VDOT maps.  In fact, a VDOT official in 2001 advised a private property owner along the C.C.C. road that such ”emergency fire trails … established on private property, with the permission of the landowners, by the Civilian Conservation Corps … were never official state maintained roads, nor did the Commonwealth have legal easement to use them.  The trails belong to landowners on [whose property] they cross.”   Private property owners who erected the gate gave keys to other private property owners along the C.C.C. road and also the Sheriff’s Office, and utility company, and offered keys to the Forestry Service.

The Friends of the C.C.C. Road made two basic claims.  First, that the road was impliedly dedicated as a public road and accepted by long use by the public and government officials.  Second, that the public gained rights to use the roadway by prescription by long continuous use and “recognition”of public use by the government.  The circuit court ruled against the Friends of the C.C.C. Road on the first argument, but ruled in their favor on the second, reasoning that the 1986 Virginia Supreme Court opinion in Burks Brothers of Virginia, Inc. v. Jones supported unrestricted public use of the road.

On appeal, the Virginia Supreme Court ruled against the Friends of the C.C.C. road on both claims.  While the Supreme Court agreed with the circuit court that the C.C.C. road was not a public road by dedication and acceptance, it disagreed with the circuit court that the right of way could become public through prescription arising from long use and government recognition of that use.  

Like the circuit court, the Supreme Court found no evidence of express dedication by the property owners or acceptance by the government.  The Court noted that unlike dedication which could be implied, government acceptance of a public road must be express.  Therefore, the Court held that the Friends of the C.C.C. Road failed to prove that the road became public through dedication and acceptance.

The Court similarly held that a public easement or right-of-way cannot be acquired solely through long and continuous use by the public and “recognition” of that use by the government without formal acceptance, saying, “The law of this Commonwealth simply does not allow for a conversion of private property to public property solely by public use.” 

On the claim of the Friends of the C.C.C. Road that the roadway became public through prescription, the Supreme Court noted that no prescriptive rights can be obtained by the public at large.  The Court noted that one required element of a prescriptive right, exclusivity, was lacking because the general public — by definition — excluded no one.  While a long and continuous public use can imply a dedication by the property owners, it cannot create a prescriptive easement. 

The Court said that the sentence from the Burks case relied upon by the circuit court did not support prescriptive rights without government acceptance, but rather simply confirmed that use by the general public –lacking in Burks — was necessary element of a prescriptive right of way.  The Court stated that an implied dedication through long public use could give rise to a public right of way, but it must be coupled with an “affirmative act by a competent authority of acceptance of the dedication the use implies.”  Such an express acceptance was wholly lacking here.

This opinion reaffirms long-standing principles — the “rules of the road,” if you will — on road dedication and creating prescriptive rights of way.  In this case, the lack of any formal acceptance of the road or roadway as public doomed the claims that the C.C.C. road was public. 

The Dykes case has reaffirmed that, under Virginia law, the government, and not the public, decides whether a road is to be public.

The Virginia Freedom of Information Act (VFOIA) grants “citizens of the Commonwealth” (and representatives of media in Virginia) access to public records.  Non-Virginians who had ties to Virginia only through divorce, child custody and child support decrees (McBurney, a citizen of Rhode Island)  and business gathering public information for sale to customers (Hulbert, a citizen of California) challenged the VFOIA “citizens only” provision on two grounds.

First the Appellant challengers argued that the “citizens-only” provision violated the Privileges and Immunities Clause of Article IV of the United States Constitution.  The Fourth Circuit Court of Appeals disagreed, saying that the rights granted under the VFOIA are not “fundamental rights” sufficiently basic to the livelihood of the nation so to be protected under the Privileges and Immunities Clause. 

The Court held that the rights asserted by Appellants which previously had been recognized as fundamental in this context — the right to access courts and the right to pursue a common calling — were not implicated by the “citizens only” provision of VFOIA.  The Court held other rights asserted by the Appellants that were implicated by the VFOIA — “equal access to information” – were simply not fundamental within the meaning of the P&I Clause.  In so doing, the Court distinguished a similar Third Circuit Court of Appeals case (Lee v. Minner, 458 F.3d 194 (3d Cir. 2006)) by reasoning that the right asserted here (equal access to information) was simply not the same right asserted in Lee (engaging in the political process).  The Court also reasoned that the right to information under VFOIA was not a right directly related to litigation, saying that the P&I Clause “is not a mechanism for pre-lawsuit discovery,” and access to information pre-lawsuit was no sufficiently basis to be a fundamental right under the P&I Clause.

Next, one of the Appellants (Hurlbert) challenged the citizens-only provision of the VFOIA under the Dormant Commerce Clause, a “negative implication of the U.S. Constitution’s Commerce Clause.  U.S. Constitution, art. I, section 8, cl. 3 empowers Congress “[t]o regulate Commerce … among the several States.” 

This clause is intended to stop state from erecting barriers to interstate trade either intentionally or in effect.  Thus, it has two tiers.  The first tier strictly prohibits facial discrimination in its practical effect or in its purpose against interstate commerce.  The second tier is less strict, but prohibits regulatory measures which “unjustifiably … burden[s] the interstate flow of articles of commerce.”  Under the second tier, the regulatory measure “will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”

The Court held that the VFOIA is simply not the kind of statute to which the Dormant Commerce Clause applies.  The VFOIA “is wholly silent as to commerce or economic interests, both in and out of Virginia.  Therefore, the VFOIA does not facially, or in its effect, discriminate against inter-state commerce or out-of-state economic interests.”  Moreover, the Court held that Hurlbert did not adequately preserve a challenge to the district court’s use of the second tier to analyze his challenge.

So, at least in the Fourth Circuit, and at least under these facts, the Virginia Freedom of Information Act’s “citizens only” provision does not violate the Privileges and Immunities Clause or the Dormant Commerce Clause.  It is legal for the Commonwealth of Virginia to allow its citizens the right to access state and local government public documents while denying non-Virginia citizens that same right.

In McBurney v. Young, in a way, the Fourth Circuit Court of Appeals has reaffirmed the basic sovereignty of the several states of our grand Republic.

If these bills pass the proposed amendment in the same form as last year, the amendment will be on the ballot in Fall 2012 for voter approval.   This blog, which until now has been silent on the topic, now weighs in as a source for information on the proposed amendment.

First, the con view.

Some have asserted that eminent domain authority can be (and is) set by statute, and a constitutional amendment is unnecessary.  They note that the General Assembly has heavily amended the statutes authorizing eminent domain to address (and arguably over-address) the Connnecticut-based Kelo case, thus making the amendment arguably unnecessary or at least premature, until the true impacts of the statutory amendments are known.  Thus, “Virginia would be wise to allow the 2007 reforms to be fully implemented before pursuing any additional legislation for a problem that may no longer exist.”  See Craig Wilson op end, “Eminent Domain Amendment Unnecessary in Virginia,” published March 5, 2011.

A major criticism of the proposed amendment is the cost to taxpayers.  Additional moneys will be required to condemn anything, even for scenarios in which the public purpose is unquestioned, like a condemnation for a needed school or an improvement to a crowded intersection.  Additional awards to landowners will be mandated for “lost profits” and “lost access”, heretofore not recognized as a property right (except for a complete or “unreasonable” loss of access).  The Roanoke newspaper said this:  “State lawmakers must take a more discerning approach and defeat this amendment. The constitution should be reserved for long-standing principles, not used as a test tube for untried feel-good measures. This is one experiment Virginia taxpayers cannot afford.”  See Roanoke Times editorial:  “A Costly Over-Reach on Condemnation: A proposed constitutional amendment would force taxpayers to pay more for roads and utilities.”

Although there is likely no real way to know the total fiscal impact, or the impact on individual projects being delayed or canceled because of additional cost, the official state fiscal impact study estimates the annual cost to taxpayers would be $36 million.  This is due to requirement that new sources of damage awards never before recognized will be added — lost profits and lost access. 

“Lost profits” are not real property and therefore not part of the condemned property.  They are incidental costs to a landowner’s business and very difficult to discern given the variety of factors in determining a profit.  “Lost access” is typically not real property, either, as a landowner only has a right to “reasonable” access to a public street.  The government’s police power to provide for safe, effective transportation for the public trumps any particular mode or route of access.  The proposed amendment may make these non-realty business interests compensable in a taking of land for the first time.

Others have raised concerns about the wording and the harm that may befall the Commonwealth’s economic development efforts if a necessary access road or utility easement for a major potential user cannot be promised in a timely fashion (or at all).  These concerns are not just from governments, they come from businesses as well.  For example, the Northern Virginia Chamber Partnership — comprised of the Dulles Regional, Greater Reston and Loudoun County chambers of commerce — announced the formation of a broad coalition of business organizations across Virginia to oppose the proposed constitutional amendment regarding eminent domain.  In a press release, Tony Howard, President and CEO of the Loudoun County Chamber of Commerce, stated that “all Virginians agree that private property rights are fundamental; however, the proposed constitutional amendment suffers from serious flaws that have the potential to stop critical infrastructure in its tracks and to jeopardize Virginia’s economic recovery. ….  In the current economic climate, Virginia can ill afford to diminish its competitiveness with other states and reduce its ability to attract the investments that will create much needed jobs for Virginians.”  You can read more on Chamber of Commerce efforts to oppose the proposed amendment here.

As noted, a large number of business-related organizations oppose the wording of the proposed amendment, and sent a letter to the members of the General Assembly on January 18, 2012, opposing passage.  These organizations included American Council of Engineering Companies of Virginia (ASEC-VA), Apartment and Office Building Association of Metropolitan Washington, CenturyLink, Community Planning Partners, Greater Richmond Association for Commercial Real Estate, Hampton Roads Association for Commercial Real Estate, Home Builders Association of Virginia, NAIOP Northern Virginia, Northern Virginia Building Industry Association (NVBIA), Northern Virginia Chambler Partnership, Northern Virginia Transportation Alliance, Old Dominion Highway Contractors Association, Portsmouth Partnership, Prince William Chamber of Commerce, The Virginia Society – American Institute of Architects (VSAIA), Virginia Association for Commercial Real Estate, Virginia Association of Realtors, Virginia Beach Vision, Virginia Society of Professional Engineers (VPSE), Virginia Telephone Industry Association (VTIA) and Virginia Transportation Construction Alliance.

Hanover County Attorney and Legislative Liaison Sterling Rives has noted a number of concerns about the wording of the proposed amendment in an op ed published in the Richmond Times-Dispatch on January 9, 2012, “Eminent Domain Amendment Needs More Work.”  He points out that there are some unintended pitfalls in the proposed amendment.  He states that ”the specific language and provisions of the pending proposal are seriously flawed. If approved as currently drafted, this amendment will cost Virginia taxpayers dearly and will severely hamper economic development in the commonwealth. A flawed constitutional amendment, once approved, is time-consuming and extremely difficult to remedy. The General Assembly owes it to the taxpayers to get this right.”

Another concern may be that, as proposed, the language of the actual constitutional amendment will not be on the ballot at all.   See HB 5 here.  SB 240 is identical.  The actual constitutional amendment states in significant part:

“That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The term “lost profits” and “lost access” are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.”

This language will not appear on the ballot.  Instead, the ballot will only include the following question:

“Question: Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended to eliminate the General Assembly’s authority to define a public use for which private property may be taken or damaged and to provide that no private property shall be taken or damaged for a public use without just compensation to the property owner and that only so much of the property as is necessary to achieve the public use is taken or damaged?”

One can argue that this proposed ballot text is not fairly descriptive of the amendment’s actual language, let alone describe its various parts or legal effects.  Several of the more problematic parts of the amendment described by Mr. Rives are not referenced in the ballot question at all.  One might ask, do we trust the voters to know exactly what they are voting upon?

Now, the pros.

Virginia Attorney General Cuccinelli responded to some of the criticisms and made his case in favor of the proposed amendment in an official Attorney General’s Opinion, dated January 26, 2012.  He opines, among other points, that compensation for lost profits will not be payable to a  business owner if his land is not taken, and that, assuming the condemnor’s proposed use meets the new definition of “public use”, a condemnor can use condemnation to replace a sprawling development with a mixed use, compact one.  Of course, that definition prohibits any condemnation if the “primary” use is to increase jobs or for economic development.  You can find his opinion here.  

The Attorney General has also appeared before a House subcommittee to lobby in favor of the proposed amendment.  In response to concerns over the estimated $36 million annual cost, he argued that this $36 million annual cost is now absorbed by private business owners.  He asserted that the current law was “morally wrong” not to compensate the business owners in these new ways.

In response to critics who complain that the public does not know how the terms “lost access” and “lost profits” will be defined and how these will be determined, ”companion bills”  have been introduced to do so.  These bills would provide the statutory basis for considering lost profits and lost access in a condemnation award, as well as define these terms as authorized in the proposed amendment.  See HB 597 here.  See HB 1035 here.  See SB 437 here.  

Proponents of the proposed amendment argue that this is a logical step and necessary as the political pressure to protect individual property rights from eager governments begins to ebb, and criticizes local government as being opposed, essentially saying that local governments were opposed to the current statute and will always be opposed to eminent domain reform.  Some even assert that conservatives and liberals alike should favor the proposed amendment.  See Barton Hinkle’s column published in the Richmond Times-Dispatch on November 25, 2011.

Many proponents see the constitutional amendment as simply enshrining existing property rights and call the opponent’s concerns and arguments about soaring costs “hollow.”  See Delegate Mark Obenshain’s commentary, “Property Rights Need Constitutional Protection,” published on January 22, 2012 in the Richmond Times-Dispatch.  Others see this as a logical re-ordering of priorities and the first reconsideration of Virginians’ constitutional property rights in a hundred years. See eminent domain lawyer Jeremy Hopkins’ op ed, “Debunking property rights amendment fears: Virginians need measure to temper eminent domain” published in the Washington Times on January 22, 2012.

In summary, it appears that if this amendment takes effect, private landowners will gain new rights and new protections for existing rights, costs for public projects will rise significantly, private business owners will get more money in awards, condemnation will be made far more difficult in many cases, and condemnation will be unconstitutional even if for needed economic development that affects no one’s home or business.  No one truly knows the fiscal impacts of this proposal, or the ultimate legal effect of calling property a “fundamental right.”  Opponents are very concerned and point out that it would take years to amend the Virginia Constitution again if the impacts prove to be unaffordable or undesirable over time.  Proponents say the opponents are alarmists on the impacts, and we need to protect private property rights and business owners and to this degree.  

Whether this amendment is good or bad depends on who you ask, and if adopted, we will all know soon enough.

___________________

Update:  SJ 3 cleared the Senate on 23-17 vote on February 13, 2012.  All 40 Senators voted.  Here are the results of the vote:

SJ 3 Constitutional amendment; taking or damaging of private property for public use (second reference).

floor: 02/13/12  Senate: Agreed to by Senate (23-Y 17-N)

YEAS–Black, Carrico, Deeds, Edwards, Garrett, Hanger, Martin, McDougle, McWaters, Newman, Norment, Northam, Obenshain, Petersen, Puckett, Reeves, Ruff, Smith, Stanley, Stosch, Stuart, Vogel, Wagner–23.

NAYS–Barker, Blevins, Colgan, Ebbin, Favola, Herring, Howell, Locke, Lucas, Marsden, Marsh, McEachin, Miller, J.C., Miller, Y.B., Puller, Saslaw, Watkins–17.

Update:  HJ3 passed the House on February 13, 2012 on an 80-18 vote.  Two members did not vote.  Here are the results of the vote.

floor: 02/13/12  House: VOTE: ADOPTION (80-Y 18-N)

YEAS–Albo, Alexander, Anderson, Bell, Richard P., Bell, Robert B., Bulova, Byron, Cline, Cole, Comstock, Cosgrove, Cox, J.A., Cox, M.K., Crockett-Stark, Dance, Dudenhefer, Edmunds, Fariss, Farrell, Garrett, Gilbert, Greason, Habeeb, Head, Helsel, Hodges, Howell, A.T., Hugo, Iaquinto, Ingram, Joannou, Johnson, Jones, Keam, Kilgore, Knight, Kory, Landes, LeMunyon, Lewis, Lingamfelter, Loupassi, Marshall, D.W., Marshall, R.G., Massie, May, Merricks, Miller, Minchew, Morefield, Morris, O’Bannon, O’Quinn, Orrock, Peace, Poindexter, Purkey, Putney, Ramadan, Ransone, Robinson, Rush, Scott, E.T., Sherwood, Spruill, Stolle, Tata, Torian, Tyler, Villanueva, Ward, Ware, O., Ware, R.L., Watson, Webert, Wilt, Wright, Yancey, Yost, Mr. Speaker–80.

NAYS–Brink, Carr, Englin, Filler-Corn, Herring, Hope, James, Lopez, McClellan, McQuinn, Morrissey, Plum, Rust, Scott, J.M., Sickles, Surovell, Toscano, Watts–18.

ABSTENTIONS–0.

NOT VOTING–BaCote, Pogge–2.

The case arose out of development proposed on a steep slope in excess of 25% grade in Albemarle County.  The County zoning ordinance allows development on such slopes with a waiver from the planning commission, which is required to consider certain environmental impacts and the report of the County Engineer before making certain findings that the environmental issues have been addressed.  Under the facts of the case, the Albemarle County Planning Commission granted such a waiver, which would have permitted development of a wireless telecommunications tower for New Singular Wireless PCS, LLC.  Kent Sinclair, a law professor at the University of Virginia, was the adjacent property owner and filed a complaint to stop the tower.

Professor Sinclair raised two issues addressed by the Court in its opinion  — (1) whether the “critical slopes” waiver by the planning commission was in fact a variance or zoning modification, requiring consideration of criteria set forth in Virginia Code sections 15.2-2309(2) and 15.2-2286(A)(4), and (2) whether the planning commission was authorized to grant the waiver.

All the justices agreed that the approval authorized in the Albemarle County Zoning Ordinance for steep slope developments meeting certain environmental and engineering criteria was not a “variance” or a “zoning modification” required to meet the requirements of Virginia Code sections 15.2-2309(2) or 15.2-2286(A)(4).  As stated by the Court, “a variance ‘allows a property owner to do what is otherwise not allowed under the ordinance.’  Bell v. City Council, 224 Va. 490, 496, 297 S.E.2d 810, 813-14 (1982).  But where ‘the property may be developed in a way consistent with the ordinance, but only with approval of the [locality] after specified conditions are met,’ a variance is not necessary.  Id. at 496, 297 S.E.2d at 814.”  

Yes, the justices agreed on the first issue, but for different reasons.  The majority opinion (by Justice Mims) appeared to view the waiver as a form of “special exception,” as was considered in the case of Bell v. City Council, or more generally, a “departure” from the zoning ordinance, not necessarily a “variance” under 15,2-2309 or a “zoning modification” under 15.2-2286(A)(4).  As a “special exception” or other “departure” from the zoning ordinance, the waiver was not necessarily a “variance” or a “zoning modification” reasoned the majority.  However, the dissent simply saw the waiver as an administrative approval after consideration of certain criteria under the zoning ordinance.  This led to the split in the opinions on the second issue and the resolution of the case in favor of Professor Sinclair.

On the second issue, the Court held that a planning commission had no authority to grant such a waiver, holding that as a form of “special exception,” the waiver was a legislative decision beyond the “general role of planning commissions, as reflected in their enabling statutes.” There is no statutory grant of authority, the Court stated, “authorizing planning commissions to consider and rule upon departures from a zoning ordinance.” 

The Court disagreed with the defendants, Albemarle County and New Singular Wireless PCS, LLC, which argued that the planning commission could be delegated responsibility under the zoning ordinance to grant this approval as an administrative matter.  The Court reasoned that the General Assembly does not appear to have envisioned a role for planning commissions to do much except comprehensively plan, assist in subdivision and site planning, and advise the governing body in zoning matters.  The Court noted that the only entities authorized to grant “special exceptions” or “modifications” were set forth by statute —  governing bodies, zoning administrators and BZAs. 

Viewing the waiver as a legislative departure from the zoning ordinance, the Court held that the General Assembly “has not … authorized local governing bodies to delegate to planning commissions approval of departures  from zoning ordinances or any other powers to administer or enforce zoning ordinances.”  Lastly, the Court distinguished Ours Properties, Inc. v. Ley, 198 Va. 848, 96 S.E.2d 754 (1957) and similar cases relied upon by the defendants that seemingly allow such delegated decision-making, holding that those cases did not involve zoning, which is “a legislative power … and approval of departures from zoning ordinances is a legislative act.”

The two-justice dissent (Justices McClanahan and Powell) disagreed, and sided with the defendants, reasoning that a local governing body has authority to delegate by ordinance to administrative approvals to bodies and individuals.  The minority cited as controlling Ours Properties and its progeny.  In these cases, the Virginia Supreme Court has allowed a legislative body to delegate final decision-making authority to subordinate bodies, officials and staff if adequate criteria were prescribed for the exercise of that authority, making the decisions administrative and not legislative.

In summary, the split in the opinions was due to the majority’s characterization of the planning commission’s waiver as a legislative “special exception” or “departure” from the zoning ordinance, and thus outside of the planning commission’s authority, rather than an administrative exercise of delegated decision-making permitted under the zoning ordinance within its authority under the Ours Properties line of cases. 

In response to Sinclair, many localities are asking questions. 

Is a local planning commission an entity authorized solely under state statute, or can it be authorized by local ordinance as well, and if so, when?  Is a delegation of authority to a planning commission (per Ours Properties) allowed in a zoning context different from that presented in Sinclair? If all “departures” from the zoning ordinance are legislative, can waivers by other bodies or staff be permitted, even if specific criteria for the waivers are provided? 

If a planning commission is not authorized to administer or enforce the zoning ordinance, how does this impact the reviews and approvals in site plans and plans of development that involve an application of, or, in some cases, “departures” from the zoning ordinance?  (Frequently, in small rural counties with little staff, the planning commission carries out such tasks by necessity, and in larger, urbanizing or urban localities, sophisticated environmental or development conditions may be addressed on a site-specific basis by staff or the commission for the convenience of the developer as much as the local government.)

And perhaps, more generally, localities are asking, “Whose planning commission is it, anyway?”  After Sinclair, it appears that a local planning commission must look to the General Assembly for most of its authority, and for the governing body’s authority to delegate the rest by ordinance.

The reach of the Sinclair opinion will likely be explored in future cases.  In the meantime, proactive amendments to local zoning ordinances should be considered.  With an apparent narrower reading by the Supreme Court of the authority of local governing bodies to craft their zoning ordinances and delegate authority, at least under some circumstances, local governments should take note.

On its face, the law applied by the trial court seemingly supported the judgment.  A county like Campbell is a “person” to whom the “Discharge of Oil into Waters” law (part of the State Water Control Law) applies.  See Virginia Code sections 62.1-44.34:14 through 62.1-44.34:23 (the “Oil Discharge Law”).  Also, what occurred there, the “passive, gradual seepage of leachate and landfill gas” appears (in isolation, at least) to fit the definitions of “oil” and “discharge” making the person liable for damages, attorneys’ fees and costs under the Oil Discharge Law.

However, the Virginia Supreme Court’s majority looked beyond the statutory language in the Oil Discharge Law that the trial court used to find the County liable.  The Court held that there is another statutory scheme that  comprehensively addressed prevention, remediation and penalties associated with slow seepage of landfill leachate and gasses from a landfill: the Virginia Waste Management Act (“VWMA”), see Virginia Code sections 10.1-1400 through 10.1-1457, and the Virginia Solid Waste Management Regulations (“SWMR”) adopted pursuant thereto, 9 VAC section 20-81-10, et seq. 

The plaintiffs (the Royals) could not point to another provision of the Water Discharge Law that applied to a landfill operation.  Given the “larger legislative context” of the VWMA and SWMR, and the apparent lack of a General Assembly intent that the Oil Discharge Law apply to a landfill operation, the Virginia Supreme Court held the VWMA and its SWMR “exclusively applied” as the General Assembly intended them to occupy the entire field.  The Oil Discharge Law simply did not apply.

This analysis and finding lead to the reversal of the $9.6 million judgment and final judgment for the County for several additional reasons. 

First, the only damages instruction offered to the jury was nearly word-for-word from the Oil Discharge Law.  This instruction was the “law of the case” and binding on the parties and even the Virginia Supreme Court.  Since the Oil Discharge Law did not apply, the liability under the law was reversed.  Second, although the Royals had a second claim for inverse condemnation, the damages instruction did not contain the legal standard for damages under inverse condemnation.  Finally, because there was no further basis for liability and the trial had been concluded using the jury instructions given, a remand was not appropriate, and final judgment for the County followed.

The dissent strongly disagreed. 

The dissent (Justice Lemons and Justice Powell) asserted that the definitions and the other wording of the Oil Discharge Law plainly applied.  They pointed out that the scope of the Oil Discharge Law was broad and apparently intended by the General Assembly to “supplement” other, existing laws for the purposes of the statute.  The dissent adopted the reasoning of a federal district court decision, Gallobin v. Air Distributing Co., 838 F.Supp. 255 (E.D. Va. 1993), which concluded that “the statute’s purpose is to provide the Commonwealth of Virginia or any political subdivision thereof or any person with a remedy when a discharge of oil causes harm to human health or welfare, harm to the environment, or damage to personal or real property.”  That being the case, the dissent would have held the Oil Discharge Law applied to make Campbell County liable and upheld the trial court.

This opinion shows that “plain meaning,” while very important in the interpretation of statutes, must sometimes take a back seat to an overall intention of the Virginia General Assembly when a statutory scheme is involved that occupies the entire field.  This time, it worked to the benefit of Campbell County.  Big time.

   101168 Campbell County v. Royal 01/13/2012 In an action by landowners for damages resulting from contamination of groundwater, the trial court erred in granting summary judgment for the plaintiffs under the “Discharge of Oil Into Waters” Law, Code § 62-1.44.34:14 through § 62.1-44.34:23, because those statutes do not apply to the passive, gradual seepage of leachate and landfill gas into groundwater. Since no damage instruction was tendered setting forth the proper measure of recovery on the plaintiff’s alternative claim for inverse condemnation, there is no basis on which the plaintiffs can pursue that claim or retain the jury’s award of damages. The judgment is reversed and final judgment is entered for the county.

   101352 Jean Moreau & Assoc. v. Health Center Comm’n 01/13/2012 In an action by a contracting party against a county healthcare commission arising out of an agreement to plan and develop an independent-living community, the circuit court did not err in dismissing a breach-of-contract claim because plaintiff did not comply with the contractual claims procedure for timely submission of claims under the Virginia Public Procurement Act, Code §§ 2.2-4300 through 2.2-4377, and did not err in finding that a quantum meruit claim was barred by the doctrine of sovereign immunity because it arose out of the commission’s exercise of a governmental function. The judgment of the circuit court is affirmed.

   101630 Dykes v. Friends of the C.C.C. Road 01/13/2012 In a suit for an injunction to bar owners of real property from interfering with use of a road over their property, which the plaintiffs contended was a public road, the circuit court did not err in finding that there had been no dedication and acceptance of the road as a public road. There can be no implied acceptance of an implied dedication of a rural road, and there is no evidence of a formal acceptance of the road in this case. However, the circuit court erred in finding that the road is public solely by virtue of its long and continuous use by the general public and recognition of that use by the county. The law of this Commonwealth simply does not allow for a conversion of private property to public property solely by public use. The judgment of the circuit court granting a permanent injunction and requiring the property owners to remove the pole gates and to allow the general public unrestricted access to the road is reversed, and final judgment is entered for the property owners.

   101761 Eberhardt v. Fairfax County Employees’ Retirement System 01/13/2012 In a circuit court proceeding seeking review of the denial of service-connected disability retirement benefits by a county, ostensibly pursued under Code § 51.1-823, the court lacked subject-matter jurisdiction to hear the appeal because that Code provision applies only to police officer retirement systems in counties with the urban executive form of government. The judgment of the circuit court granting a motion to dismiss the proceeding is affirmed.

101831 Sinclair v. New Cingular Wireless PCS, LLC 01/13/2012 In a challenge to Albemarle County Code § 18-4.2.5, the circuit court correctly determined that waivers permitting construction on certain slopes within the county are not variances within the meaning of Code § 15.2-2201 and therefore need not be considered solely by the board of zoning appeals under Code § 15.2-2310 using the criteria set forth in Code § 15.2-2309(2). However, the circuit court erred in ruling that such waivers may be granted or denied by the planning commission because the General Assembly has authorized local governing bodies to delegate such legislative power only to the zoning administrator or board of zoning appeals. Accordingly, the judgment is affirmed in part, reversed in part, and the case is remanded.

I am proud of how well this article turned out.  Let me hear from you if you want a copy.  Let me hear about ways to improve the article.

Many thanks to all those that helped in its creation.  The original idea for the local government annual survey article came from discussion I had with Sands Anderson’s own Sarah Warren Beverly, former University of Richmond Law Review Annual Survey Editor.  Thanks, Sarah Warren, for passing on this idea to your successor, Laura May!  Thanks to Dan Siegel, head of the Sands Anderson Government Group, for thinking that I was the right author for the article when the Law Review called.  Ian Lambeets, UR Law Student and Sands Anderson Summer 2011 Clerk, assisted in initial drafting and with those pesky citations.  Thanks to Laura May and her Law Review Annual Survey staff who helped spade and edit the article. 

Many local government attorneys involved in the cases or in the legislative process assisted me over the year to understand better the Virginia Supreme Court cases and adopted General Assembly bills.   These attorneys are a testament to the excellence found in Virginia’s local government attorney offices.  They included Albemarle County’s Andy Herrick, Arlington County’s Ara Tramblian, Chesterfield County’s Rob Robinson, City of Falls Church’s John Foster, Fairfax County’s David Bobzien, Cynthia Bailey and Erin Ward, Isle of Wight County’s Mark Popovich, Town of Leesburg’s Jeanette Irby, Frederick County’s Rod Williams and Virginia Municipal League’s Mark Flynn. 

Thanks to all who made the article possible.  I hope that Virginia local government law annual survey will return again next year!

(To be clear, secondary roads are more than just your subdivision streets.  They include nearly all roads with a number above 600.  These include significant carriers of traffic including the Fairfax County Parkway, Robious Road in Chesterfield County, and many of the major through routes in rural counties.)

It is well known that the “crumbling” state highway system is in bad shape due to years and years of deferring maintenance by the General Assembly.  Even the conservative blog Bacon’s Rebellion has forcefully stated, “Virginia is not spending enough on its transportation system.” See Bacon’s Rebellion post, “A Glimpse into Virginia’s Road Maintenance Future?” 

Given this “legacy cost” associated with years and years of deferred maintenance, and the anticipated costs associated with future required maintenance, counties are understandably opposed.  Many counties see hundreds of millions of dollars spent just to perform required but unfunded maintenance.  They criticize the state for failing in its responsibilities and describe ”devolution” as yet another unfunded mandate “that is neither justifiable nor reasonable.”  See “Why road ‘devolution’ is a bad idea for northern Virginia” by the Chairs of the governing bodies of Arlington County, Loudoun County and Prince William County.

Jim Campbell, the Executive Director for the Virginia Association of Counties does not mince words.  He sees this proposed transfer of the responsibility and costs of secondary road maintenance another step in a long history of “devolution” passing mandates and costs on to localities.  He says, “[W]hile state lawmakers beat their chests and brag about reducing taxes, they are actually vicariously causing local property taxes to increase.”  In effect, “$60 million of your local property taxes were remitted each year to balance the state budget.” 

On the underfunding of maintenance by the state, Campbell reports, “transportation dollars are so scarce that Virginia is losing federal transportation money because it cannot provide the modest matching funds.”  He describes the condition of the state highway system today as a ”neglected system of potholes and traffic gridlock.”  Campbell concludes his op ed by suggesting that allowing counties more flexible taxing authority to go with the mandates may be one solution to paying for the needed road maintenance.  His op ed on the subject, “State Forces Local Taxes Higher” was published in the December 11, 2011 Richmond Times-Dispatch.

Devolution of the state secondary highway system may happen whether local governments are opposed or not.  Some members of the General Assembly suggest that local governments need to step up to fund secondary roads given the fact that localities approve the development of new secondary roads with no fiscal obligation.  Local governments respond that there are many major state secondary roads and many older subdivision roads that have nothing to do with the land use policies or decisions of current governing bodies, and given the “legacy cost” of a system woefully-underfunded for years, devolution is fundamentally unfair.

Some members of the Virginia General Assembly agree with VACo’s Jim Campbell that localities cannot be given this mandate without the tax authority necessary to pay for it.  See Senator Watkins’ quote in Chesterfield Observer, November 23, 2011. 

Whatever the answer, the 2012 Virginia General Assembly will be grappling with devolution and whether all of the state secondary road system will be passed off on local governments, or perhaps just some larger localities.  If so, this will be the largest mandate to local governments in a generation and will undo a system that has been in place since the Byrd Act in 1932. 

If devolution comes, a big question is whether the proposal for devolution be unfunded or accompanied by the necessary local control, revenues and taxing authority?  Some local elected officials might welcome devolution if ownership, local control, revenues and additional taxing authority come with it. See John Cook’s December 7, 2011 op ed from Washington Post, “How Virginia Can Make Devolution Work.”

What do you think?  Is devolution of the state secondary highway system to local governments a good idea? 

If so, is devolution a good idea for all local governments, even the rural ones that are not much more developed than they were in 1932?  And if so, what should the state provide local governments in the way of revenue, ownership, local control and taxing authority to allow them to do what the state has not — properly fund secondary highway maintenance?

Although personal property taxes are imposed locally by Virginia’s counties, cities and towns, the assessments (valuation) of the items of property for public service corporations are done centrally by order of the State Corporation Commission.  By statute, challenges to the SCC’s assessment are filed and litigated at the Commission, rather than in local circuit courts. 

Once given an opportunity to do so, over 100 Virginia local governments filed notices of participation.  Sands Anderson PC represented 29 of those localities over the course of the litigation.

Along with Fairfax County and other large localities with in-house tax litigators, the Sands Anderson Government Group was pleased to take a lead in the ultimately successful Virginia local government effort to defend Verizon’s applications.  On August 3, 2011, Verizon moved to voluntarily dismiss its multi-million dollar claims and the Commission granted those motions.  No refunds were paid.

While there were many issues arising from the cases, we took away a number of “lessons learned” that we are pleased to share.  Here are the top ten:

# 1:  Just because they’re big, doesn’t make them right.  Being right on the law and the facts make you right.

One opinion involves a Virginia local government (Montgomery County) and an interpretation of the internal improvements clause and the credit clause of Article X, Section 10 of the Virginia Constitution:

100350 Montgomery County v. Va. Dep’t of Rail and Public Transportation 11/04/2011 In an action by a county challenging the constitutionality of Code § 33.1-221.1:1.1 and an agreement entered thereunder between the Virginia Department of Rail and Public Transportation and a railroad, approved by the Commonwealth Transportation Board, for the development of an “intermodal” terminal in the county as a transition point for shifting the transportation of freight by road to shipment by rail, and vice versa, the statute as applied in this case does not violate either the internal improvements clause or the credit clause of Article X, Section 10 of the Constitution of Virginia. Accordingly, the judgment of the circuit court denying summary judgment to the county and awarding summary judgment in favor of the Department defendants, the Board, and the railroad, is affirmed.

Another is not a local government case, but interprets the Freedom of Information Act as it applies the Act’s definition of “public body” to the State Corporation Commission:

102477 Christian v. State Corporation Commission 11/04/2011 In an appeal from proceedings before the State Corporation Commission in which an individual sought injunctive and declaratory relief for the Commission Clerk’s alleged failure to produce information as required under the Virginia Freedom of Information Act, Code §§ 2.2-3700 through -3714, that Act is inapplicable to the Commission, which is not a “public body” under the Act, but derives its authority from Article IX of the Constitution of Virginia, and the Commission is not subject to a constitutional enforcement mechanism under the Act. The order of the Commission dismissing the petition is affirmed.

These summaries come from the Virginia Supreme Court website: http://www.courts.state.va.us/scndex.htm

Brad and Nikki represent local government clients all over Virginia, with an emphasis on local school boards and K-12 school districts.  We are pleased that Brad and Nikki have joined our Virginia local government team, and appreciate the strength that they add to our representation of government entities and public officials across Virginia!

Welcome, Brad and Nikki!

There is one opinion, however, that will be of interest to local government attorneys — Doud v. Commonwealth, Record No. 100285, opinion by Senior Justice Russell.  The Doud v. Commonwealth opinion addresses the topics of sovereign immunity, the need for a clear and express waiver thereof, and the relationship between a sheriff/constitutional officer and the Commonwealth under the Virginia Tort Claims Act.   

This case arose from alleged injuries against an inmate caused by the actions of the County Sheriff’s deputies. Originally, Russell County, the Sheriff and a host of others were named as defendants, but all except the Commonwealth were nonsuited before the circuit court’s final order. In this order, the circuit court dismissed the remaining claim against the Commonwealth of Virginia on sovereign immunity grounds.

On appeal, the issue presented was “whether such an express waiver of sovereign immunity renders the Commonwealth liable for the negligent acts or omissions of deputies and jailors employed by a county sheriff.” The Court recited the strength of sovereign immunity and again reiterated the need for a clear and express waiver of sovereign immunity. The Virginia Tort Claims Act (VTCA) waives sovereign immunity for certain cases against the Commonwealth and, as applicable here, “employees.”

The Court quoted Carraway v. Hill, 265 Va. 20, 24, 574 S.E.2d 274, 276 (2003): “[A] constitutional officer is an independent public official whose authority is derived from the Constitution of Virginia even though the duties of the office may be prescribed by statute. While constitutional officers may perform certain functions in conjunction with units of county or municipal government, neither the officers nor their offices are agencies of such governmental units.”

The Court then reasoned as follows: “Constitutional officers are responsible to the voters who elected them but do not depend upon either the government of the Commonwealth or upon the governing bodies of their counties or cities for their authority. Accordingly, we hold that the sheriff of Russell County was not an “employee” of the Commonwealth within the definitions contained in the VTCA. The sheriff’s deputies and jailors were employees of the sheriff, not of the Commonwealth. The sheriff had sole authority to employ them, to discharge them, and to direct their work. They were responsible to the sheriff and not to the government of the Commonwealth.”

Thus, the Court concluded that “they were not “employees” of the Commonwealth within the express waiver of sovereign immunity contained in the VTCA” and affirmed the circuit court’s dismissal of the case against the Commonwealth arising from the conduct of the Sheriff and his deputies.  

A Sheriff, like all constitutional officers under Article VII, Section 4 of the Constitution of Virginia, is a quasi-state, qauasi-local office whose power is drawn directly from the voters by means of the authority of the Virginia Constitution itself.  A constitutional officer is quite often, as shown here, not of the locality and not of the Commonwealth.

Fortunately, local government attorneys, public officials, and citizens have resources that can help with compliance with the Freedom of Information Act — the primary resource being the Freedom of Information Act Advisory Council.  The staff and attorneys of the Council field questions over the telephone, and issue formal advisory opinions that can guide compliance.  The Council can even informally assist in resolving disputes involving the Virginia FOIA.  I have often appreciated the backup the Council can provide to a local government attorney in a heated political environment.

Recently, I received a reminder of the annual training provided by the FOIA Advisory Council.  Here are excerpts from the reminder I received on the Council’s 2011 FOIA Workshops:

It’s that time of year again! The 2011 FOIA Workshops have been scheduled for September and October [2011].  Registration forms and additional information are available on the FOIA Council website at http://foiacouncil.dls.virginia.gov/2011_workshops.htm.  ….  The registration form should provide all of the relevant information, but if you have any questions or require additional information, please contact … Maria Everett, or Darlene Jordan. Darlene may be contacted at djordan@dls.virginia.gov or 804.786.3591. [Maria may be contacted at meverett@dls.virginia.gov or 804.786.3591.]

On its website, the FOIA Council provides links or mentions a large number of other resources for interpreting or applying the Virginia FOIA.  One of the resources mentioned is the Local Government Officials’ Guide [to FOIA] ($5) available from the Weldon Cooper Center for Public Service, Charlottesville, VA 22903, a popular resource among local government practitioners and officials.

As counsel to counties, cities and towns, local government entities and their officials throughout the Commonwealth of Virginia, the attorneys of the Sands Anderson PC Local Government Team interpret FOIA issues regularly, and can provide a formal interpretation, assist with a FOIA problem, or litigate a FOIA case, if needed.

As a long-time local government attorney, most of my practice involves representing and defending litigation against governments, governmental entities, officials and their employees.  That is what I have done for most of my legal career in private practice and as a full-time attorney with Arlington, Culpeper and Goochland Counties. 

But a small but growing part of my practice involves representing businesses in need of a government solution. 

What do I mean by a “government solution?” 

A governmental solution is assistance that a governmental body, official or employee can provide to help solve a problem.  This assistance could take the form of an ordinance or statute, amendment of an ordinance or statute, a zoning or other governmental approval, enforcement of applicable state or local laws, a needed administrative interpretation, or simply getting the right people talking to one another.  Government can be a powerful ally and problem solver. 

To me, litigation is not a government solution.  Litigation is a judicial solution and an adversarial one at that, with no guarantee of result.  Being adversarial with government can often be the wrong course, and actually delay or prevent a solution.  Working cooperatively with government can be wise investment of time and resources.

I happily represent governments and defend them in litigation.  My record speaks for itself in that regard.  However, in addition, I am pleased to represent select businesses needing a government solution.