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.

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.

The Riverside Owner L.L.C. v. City of Richmond case involved the appropriate amount for a tax exemption earned by a developer under Virginia Code § 58.1-3221 and Richmond City Code § 27-83.  These laws provided for a partial exemption of the real estate taxes under the City’s tax Abatement Program for Rehabilitated Real Estate.  Qualifying properties earned an exemption if the “assessment” of the rehabilitated property increases by 40% after rehabilitation. 

Under the facts of the case, Richmond Power Plant, LLC developed a site located on Brown’s Island, which was originally valued at $500 dollars. After significant rehabilitation and development, the mixed-use property was subsequently sold to Riverside Owner, L.L.C. Rather than use the property’s actual assessment after rehabilitation, the staff had applied its long-standing ”Chandler policy” to calculate the exemption, using only the part of the assessment due to the rehabilitation.  The purpose and effect of the “Chandler policy” was to “eliminate from the final estimate of value any enhancement created by something other than rehabilitation or physical improvement.”   Using this policy, the City staff assessed the rehabilitated offices after rehabilitation at $63.8 million.  However, applying the ”Chandler policy,” the City staff only awarded an exemption to Riverside in the amount of $45.2 million, rather than the actual assessment of the offices.

The Supreme Court determined the language of the statute required that a partial exemption be based on the “first assessed value of the rehabilitation.” This assessed value is the first fair market value “assessment” after the rehabilitation (in this case $63.8 million), which had a statutory and well-settled meaning.  The Supreme Court held, therefore, that the amount calculated under the “Chandler policy,” $45.2 million, was far less than the City’s “assessment” of $63.8 million, which must be used under Virginia Code § 58.1-3221 and Richmond City Code § 27-83.

Riverside won its additional tax exemption.  The plain meaning controlled.  The “assessment” is the assessment, not some other amount.

The study is getting quite a buzz in Hampton Roads and in Northern Virginia, as it should all across the state.

The study makes no recommendations, but strongly suggests that devolution — handing off the secondary road dilemma to local governments — may be in our near future. The study draws a roadmap (sorry for the pun) for the Commonwealth to address the problem of lack of maintenance and construction of secondary roads. Of course, given the fact that the study finds (i) the current administrative arrangement is “appropriate,”  (ii) the current state funding is resulting in a “deteriorating” secondary road system, and (iii) the current local options for assuming road maintenance are not attracting any takers, it is hard to see how the status quo options are real options at all.  This leaves devolution in some form as the most likely path forward.

Glaring in its absence in the press release is an option to raise state revenues adequate to solve a problem largely created by lack of — yes — state revenue.

Isn’t that the real problem here?  Isn’t the real problem that the state has not adequately funded its secondary road system, leaving many localities in gridlock and secondary roads in the shambles they are today?  It may be time for devolution on some basis.  But perhaps it is the Commonwealth’s unwillingness to shoulder its burden that has made this so.

Some mandatory devolution in some form appears to be our future, accompanied by increased local taxes to pay for it.  If real local option revenue sources come with the responsibility, this may not entirely be a bad thing.  As pointed out in the study, combining local land use authority with a local control over road construction and maintenance makes sense.  And, with devolution, the elected local officials closest to the citizens and the problems created by inadequate roads will be tasked to solve the problem.  

One shortcoming of devolution is the loss of  the economies of scale when handling roads on a regional or district basis. Another is suggested by the finding in the study that says: “Many counties have limited capacity to assume secondary maintenance responsibilities.”  Well said.  Many smaller localities utterly lack the staff, resources and tax base to pull off devolution.  Some counties are in not much better financial position today than they were in the 1930s when the state assumed control over the former “county roads.”

Even in a relatively large and wealthy counties, a shift to local control over secondary roads would be difficult and no local taxpayer will be happy to see their taxes go up.  New revenue must be found, and in the current political environment, it does not seem forthcoming from the state.  Better to focus taxpayer anger at local boards and councils than at the Virginia General Assembly, right?  

 However, what if the political environment is not much friendlier at the local level for increased taxes? What if the same state officials that pushed this expensive burden on local officials and local taxpayer then complain about out of control local taxes and seek limits on tax increases or local taxing authority?

What do you think about devolution?  Is it the right answer?

Reprinted here in total is the VDOT press release:

RELEASE: Immediate June 29, 2011
CONTACT: Joe Vagi 804-371-8304 (office) CO-1119
804-837-3261 (cell)
Joe.Vagi@VDOT.Virginia.Gov

NEW STUDY ADDRESSES ISSUES FACING VIRGINIA’S SECONDARY ROADS

All options examined to address secondary road system needs

RICHMOND – Today Secretary of Transportation Sean T. Connaughton announced the publication of a new study titled Policy Options for Secondary Road Construction and Management in the Commonwealth of Virginia. The study, authored by Dr. Jonathan L. Gifford, a professor at the George Mason University School of Public Policy, discusses historical aspects of Virginia’s secondary roads policy, the current issues facing secondary roads in Virginia and potential policy options for the Commonwealth’s secondary roads.

“The Commonwealth of Virginia is one of only four states in the nation that maintains responsibility for the vast majority of its secondary roads,” said Secretary Connaughton. “Virginia’s 97,629 lane miles of secondary roads are vital to the Commonwealth’s economic prosperity and our citizens’ quality of life. This study looks at every option to adequately address future secondary road system needs.”

The study identifies 10 findings related to the secondary roads program:

- The secondary road system as currently configured is not an appropriate administrative apparatus for maintenance and operations of the roads it contains;

- The condition of the secondary system is deteriorating;

- In recent years the VDOT secondary construction program has provided minimal funding support for constructing new roads in the secondary system;

- The current budget allocation process for maintenance funds gives relatively low priority to the secondary system;

- The current “devolution mechanisms” for construction and maintenance are not attracting county participation;

- County officials generally agree that state payments will not cover all the costs of a local road program for maintaining secondary roads;

- Many counties have limited capacity to assume secondary maintenance responsibilities;

- Local control over local roads and streets affords significant opportunity to integrate decision making over transportation and land use and improve development outcomes;

- Local option transportation taxes have been used throughout the U.S. to generate revenue for local road construction and maintenance programs; and

- Current secondary road acceptance procedures have and may continue to add roads to the secondary system in ways that exacerbate the maintenance budget shortfall.

Secretary Connaughton continued, “Our secondary road program is facing an enormous array of challenges. VDOT’s current resources are sufficient to do a few missions well or many missions inadequately. This report provides an excellent overview of the choices ahead.”

Several policy options are discussed in the report, including:

- Maintaining the current policy on construction and maintenance
devolution;

- Maintaining the current policy with enhanced budgetary priority for
secondary road construction and maintenance;

- Restructuring the secondary road system;

- Performance-based maintenance contracting on the secondary system;

- Empowering counties to raise revenues;

- Imposing devolution on all counties; and

- Imposing devolution on select urban counties.

“The Commonwealth of Virginia is currently in a unique position,” said Dr. Gifford. “While decreases in available funding and statutorily mandated prioritizations have led to deteriorating secondary roads, Virginia has a number of viable options to consider in solving these challenges.”

A link to the study is provided here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865957

(END)

The import of the opinion is being hotly debated in the press and elsewhere.  However, the Supreme Court’s opinion was quite limited.

Supreme Court opinion did not alter the test in Virginia for determining whether equipment is fixtures in Virginia.  Rather, the opinion quoted and applied the long-standing test in Virginia for determining whether equipment is considered fixtures from Danville Holding Corp. v. Clement, 178 Va. 223, 16 S.E.2d 345 (1941).

The Court also did not suggest that it will be difficult for condemnors to assert that restaurant equipment are not fixtures.  The Court certainly did not express an opinion as to whether the equipment in this case were fixtures.  The Court only held that that the trial court erred in making the decision itself. 

The Court remanded the case to the circuit court for a new trial, saying that a condemnation award is a “unitary award” of all of the take, and that it is not severable into its various parts.  See opinion’s footnote 2.  Thus, the Court reasoned, a new trial is required.  The Commissioner had argued that remand was only required on the question of whether the equipment at issue were fixtures or not.

Like a proposed amendment to the Virginia Constitution making compensable new items with values difficult to calculate such as “lost access” and “lost profits” due to the taking, this decision may drive appraisers’ opinions of value up and even farther apart, making needed public infrastructure more expensive for the taxpayers, and settlements and condemnation trials more difficult to resolve.

100347 Riverside Owner v. City of Richmond 06/09/2011
In a taxpayers’ action for relief from allegedly erroneous assessment of taxes on real property under Code § 58.1-3984, seeking a refund of overpayments, and recovery of attorney’s fees, the city’s use of an internal “policy” to calculate the amount of a partial exemption was inconsistent with provisions of the governing local ordinance, which requires that a property’s first assessed value after rehabilitation be used to determine the amount of a partial exemption. The taxpayers were not given a partial exemption that was greater than the increase in assessed value resulting from rehabilitation, because the first assessed value after rehabilitation did not include market appreciation. Any error in admitting expert testimony about real estate appraisal and the underlying rehabilitation program was harmless because it did not address issues decided by the trial court and could not have affected the result. There was no error in including retail space in the final order under these pleadings and this evidence. Nor was there error in denying attorney’s fee recovery since this action was brought under the tax Code and not the parties’ agreement where the purported fee recovery right is found. The judgment of the circuit court is affirmed.

100632 Davis v. County of Fairfax 06/09/2011
In proceedings under former Code provisions relating to an alleged unfit pet owner, the Court of Appeals erred in affirming the judgment of the circuit court, which had exercised subject matter jurisdiction over a case that originated in general district court, was appealed to the circuit court and non-suited there, was subsequently re-filed in the general district court, dismissed, and then appealed to the circuit court. The judgment is reversed and final judgment is entered.

Summaries are quoted from the Virginia Supreme Court website.

One of the problem issues for Virginia local governments and their officials and employees across the state is how to deal with blight. Such structures, singular or in groups, can become a large problem to a community.  Often, historic structures fall victim to lack of maintenance, or neighborhoods suffer because of harmful and dangerous conditions.  Fortunately, there are a number of tools localities can use to address blight in their communities.

The tools can be broken down into three groups, based upon what conditions (and preconditions) exist.

I.  Tools available if a blighted structure presents an “imminent and immediate threat to the health, safety or welfare of the general public:”

     (A) Tool # 1 — If the locality has adopted Part III of the Virginia Uniform Statewide Building Maintenance Code (the “Property Maintenance Code”), the local building officials can authorize emergency repairs to or demolition of the blighted property and recover the cost of abatement from the owner of the blighted structure.  In emergency situations, the official can even authorize repairs to make the structure temporarily safe or even demolish structures under certain circumstances.

     (B) Tool #2 — Any locality may utilize §15.2-900 of the Code of Virginia and abate, raze, or remove the unsafe or dangerous blighted structure and recover the cost of abatement from the owner of the blighted structure.

II. Tools available if a “blightes structure is unsafe or unfit but does NOT present an imminent or immediate threat or danger to the general public:” 

     (A) Tool #1 – If the locality has adopted the Property Maintenance Code, the building official can direct the owner to make the necessary repairs or improvements to the blighted structure. If the owner fails to comply with the Building Official’s directive within 30 days, the Building Official can secure, repair, vacate, condemn or demolish the blighted structure and recover the cost of abatement from the owner.  The Property Maintenance Code contains comprehensive procedures for dealing with blighted structures. 

     (B) Tool #2 — Upon adoption of an ordinance, any locality can utilize §15.2-906 of the Code of Virginia and require the owner to remove, repair, or secure any building, wall or other structure which might endanger public health or safety. If the owner fails to comply the locality’s directive, the locality can remove, repair, secure or provide exterior maintenance to the blighted structure and recover the cost of abatement from the owner or place a lien on the property after giving written notice and after publishing such notice in a newspaper of general circulation in the community, and even prescribe civil penalties for violations of the ordinance.

     (C) Tool #3 — Any city or town (but not county) can utilize §15.2-1115 of the Code of Virginia and compel the abatement or removal of all nuisances, including unsafe, dangerous or unsanitarybuildings, walls or structures which constitute a menace to the health and safety of the occupants thereof or the public. If the owner fails to comply the locality’s directive, the locality can abate the nuisance and recover the cost of abatement from the owner.  Every such cost in excess of $200 which has been assessed against the owner of any such property and which remains unpaid shall constitute a lien against such property and shall have the same priority as other unpaid local taxes.

     (D) Tool #4 — Any locality can utilize the Spot Blight provisions in §§36-49.1:1 and 36-19.5 of the Code of Virginia to acquire “blighted properties” through purchase or eminent domain of their owners fail to properly maintain them.  Effective tool to deal with absentee owners by getting these blighted (and often historic) properties out of the hands of neglectful owners and into the hands of new owners that will maintain them properly.  As used here, a “blighted property” is defined in part as “any individual, commercial, industrial, or residential structure or improvement that endangers the public’s health, safety or welfare because the structure or improvement upon the property is dilapidated, deteriorated, or violates minimum health and safety standards.”  There are procedural requirements and limitations contained in the statutes. 

     (E) Tool #5 — Any locality can utilize §§ 58.1-3965 and 58.1-3870.1 of the Code of Virginia to sell blighted properties in order to recover delinquent real estate taxes and get blighted properties out of the hands of neglectful owners and into the hands of new owners who will maintain them.  Note:  This firm uses these statutes to recover delinquent taxes for a large number of local government clients, and our services are typically paid for my the delinquent taxpayers themselves through statutorily-permitted and judicially-mandated fees. 

III. Tool available to abate a blighted structure that might endanger the public’s health, safety or welfare, which for a continuous period in excess of six months has been vacant and boarded up in accordance with the building code and has not had any utiluty service (i.e. a “derelict building”). 

     (A)  Tool #1 — By ordinance, any locality can utilize §15.2-907.1 of the Code of Virginia and establish a tax abatement program to encourage the owners of any “derelict building” — as defined — to demolish or renovate such buildings, using a combination of required abatement plans, expedited procedures and tax breaks for the owner.

Used properly by localities, these tools can make the difference in our communities.  What tools are being used in your communities, or what problems with blight have you seen?

From time to time, I have been asked how best to work with local governments. Perhaps because I also double as a local scoutmaster, these guidelines parallel the principles of the Boy Scouts of America, which have stood the test of time for more than 100 years.

For guidance in government, business and in life, one can do a lot worse than following the Boy Scouts!

As a long-time local government attorney, I appreciate how many scouting principles can help businesses in dealing with local governments. I’ll focus on a handful:

The Patrol Method

Boy Scouts do most activities in a patrol, a group of scouts headed by a patrol leader. A team, if you will.

The team approach works best for dealing with local government. You may need experts to conduct studies or answer fair questions from local government officials and employees. You may need team members experienced in local government to be prepared as discussed below. Some may have stronger ties to decision-makers than others, or a better way to approach an issue. Experience counts. By assembling a team, your team can be stronger and more successful.

Be Prepared

This is the Boy Scout motto.

Every piece of real estate is unique.  Similarly, every governmental situation is different in some ways, and every local government varies in how it approaches approvals. Businesses dealing with local governments should learn how the government works and how decisions are made. Understand the policies and ordinances of the local government. Learn who the decision-makers and influencers are, and who your likely allies and opponents are. Meet with elected officials, staff, allies, opponents, and of course, your team. Make it easier to win. Know what approaches work best in that locality. Find ways your plan or position can also serve the plans and needs of the locality.

Do your homework. Diligently prepare a case for your project (or against a project you oppose). Never assume that approval or denial is in the bag. The political winds shift quickly in the local government world. Be prepared for last-minute shifts and changes. Keep working until the end.

Be Trustworthy

This is the first point of the Scout Law.

Your credibility is critical. This goes beyond telling the truth, which is essential. Gaining a reputation for half-truths can be deadly. Explain accurately the upsides to your plan or position, certainly. But also explain how you address the opposition’s plan or position. Explain accurately what you can and cannot do. Explain why you do or do not support a certain plan or position. Accurately describe your opponents’ plan or position.

Never promise something you cannot deliver. Remember that if local government approves your project, the local government is endorsing you to its citizens. Do not betray that endorsement.

Be Helpful/Do a Good Turn Daily

Helpfulness is both a point in the Scout Law (“helpful”) and an explicit promise in the Scout Oath (“to help other people at all times”). “Do a good turn daily” is the scout slogan.

Be ready to answer all questions and do so. Share information and address all issues. Share studies, pictures, reasoning behind your plan or position. Help allies with arguments to aid you. Help opponents understand why you believe you have addressed their issues as well as you can. Craft your plan or position to conform to local government plans or policies so you are helping to serve public goals. Help local government officials and staff help you. Making their jobs and decisions easier not only does them a “good turn,” it will also help you.

* * * *

Getting local government approvals (or seeking a denial) can be a difficult task, but it can be made easier by following some of the basic principles from the Boy Scouts of America.

Just ask any scoutmaster.

The webinar was a big success!  About 130 separate registrations were logged on and many of them had multiple attendees.  We estimate that somewhere in the ballpark of 200 participants shared in the experience.  Two hours of CLE credit have been applied for and all registrants will be contacted when approval is received from the Virginia State Bar.

With apologies to David Letterman, here are my Top Ten “take-aways” from the webinar:

10.  The two bills in question — HB 1588 and SB 3015 – are the same, as adopted.  So, good news!  You only need to read one.

9.  With full compliance with the required notices and disclosures of assessment records in Virginia Code §§ 58.1-3331, 58.1-3379 and 58.1-3984, as amended, the worst of the legislation for localities – shifting the order of presentation of evidence at the BOE and/or circuit court — is avoided.

8.  Likewise, if the appeal does not involve the “assessment of residential property filed by a taxpayer as an owner of real property containing less than four residential units,” the worst of the legislation for localities is avoided.

7.  The disclosure requirements of Virginia Code § 58.1-3331(A), (B) and (C) are not new.  However, the new requirements and deadlines for notices and production of the 58.1-3331 information in Virginia Code §§ 58.1-3379 and 58.1-3984, as amended, ARE new.  Local assessing officials should make sure they comply with them all.

6.  The change to the burden of proof for all tax appeals — i.e., ”preponderance of the evidence” rather than the former “clear preponderance of the evidence”  — may not be that significant due to the presumption of correctness.

5.  Since these bills strike the language formerly in Virginia Code § 58.1-3379 saying that there is no need to prove “manifest error” before the BOE, and return the relevant portion of the statute largely to its pre-2004 wording, a taxpayer might again have to prove “manifest error” on appeal at the BOE stage.

4.  Given the similarity of the description in Virginia Code § 58.1-3984, as amended, of the taxpayer’s cause of action (i.e., WHAT needs to be proven, as contrasted with the amount of evidence), with the traditional statutory text of this statute, it is likely that proof of manifest error remains a part of taxpayer’s cause of action under Virginia Code § 58.1-3984.

3.  The locality should identify who its “assessing officer” is and ensure the “assessing officer” is complying with HB 1588 and SB 3015.  This is true for rural counties with a board of assessors, too.

2.  In circuit court, counsel should consider addressing the timing of production of information described in Virginia Code § 58.1-3331(A), (B) and (C) in a pretrial scheduling order, and the local government attorney should ensure any notices required under Virginia Code § 58.1-3984 are sent.

1.  If the order of presentation of evidence at the BOE or in circuit court is shifted because of assessor failure to provide required notices or disclosures, address this up front, but be aware that the presumption of correctness of the assessment still exists, and the burden remains on the taxpayer to prove the necessary elements to prevail.

My thanks again to Mark Flynn for participating and sharing his expertise, and to all the local government officials, attorneys and staff that joined us for the webinar!