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.

During the session, the state legislature adopted some important changes in the law affecting local governments.  Over the coming weeks, I will be touching on some of the most significant bills.  In this post, I’ll discuss HB 1588 (and its companion, SB 1350), which will change the manner in which tax appeals are handled effective for tax year 2012.

Tax assessment cases have always been difficult for taxpayers to win. Some form of manifest error must be shown, the taxpayer bears the burden of proof, and a mere difference of opinion is insufficient to prevail.  The law in this regard has mostly been well-settled.  For a discussion of much of the law in this area, see the previous blog post on TB Venture LLC v. Arlington County and the three-part series of posts on West Creek Associates v. Goochland County: Part 1, Part 2 and Part 3.

In the 2011 General Assembly session, an attempt was made to change the tax appeal procedure and burdens on taxpayers.  Early versions of HB 1588 and SB1350 would have even completely shifted the burden of proof from the taxpayer to the locality.  (If successful, these early versions would have resulted in the only lawsuits in America in which the plaintiff would have had absolutely no burden!)

After a compromise and several amendments, the final versions of the bills will result in some significant changes to tax appeal procedures, effective for the 2012 tax year. 

In brief:

– Written notice will be required of certain of taxpayer’s rights in the event of an owner appeal to a board of equalization or circuit court involving residential property containing less than four units.  Virginia Code section 58.1-3331.E, as amended.

– For board of equalization appeals, if provision of assessment records is not given to an owner of residential property containing less than four units as required by law, the assessor is required to present certain types of evidence first in the BOE hearing.  There is a change in the evidentiary standard. Virginia Code section 58.1-3379, as amended.

– For circuit court appeals, the law is unchanged for most tax assessment appeals, but for appeals seeking “relief from real property taxes” there are change in the procedure.  There is a difference in evidentiary standard.  In addition, if the assessor’s records are not produced as required by law in an owner’s appeal involving residential property containing less than four units, the assessor must produce certain types of evidence first at trial. Virginia Code section 58.1-3984.B, as amended.

The wording of some of these amendments is complex, and is still being interpreted by attorneys who practice in this area.  Litigation is likely for many years before the meaning of these amendments are truly decided.

A Sands Anderson Webinar will be held in the Spring to assist local government attorneys and assessors in interpreting these new amendments.  Check back to this site and the Sands Anderson PC website, www.SandsAnderson.com, for further details.

What can replace that maleable and useful standard?

As localities continue to struggle post-Tanner, many would say that noise decibel limits are the answer.  They are plainly objective.  However, it is not entirely clear that air pressure readings measured by noise meters is all that easier for the average person to understand than the “reasonable person” standard.  

Writing a decibel-based noise ordinance is on the one hand very easy.  Place decibel limits in zoning districts or locality-wide, perhaps with different standards for night versus daytime. 

But adopting decibel limits by ordinance is a notoriously difficult line-drawing exercise.   Why is 65 decibels a violation at 8:01 p.m but not at 7:59 p.m.?  Why is a higher noise level appropriate in a commercial zone and not right next door in an office zone?  A washing machine makes a noise quivalent to 75 decibels.  A conversation can easily reach 65 decibels.  But do you want to hear such a noise in your home as you try to sleep?  

Taking into account all of the differences in public perception and community consensus of what is appropriate and what is inappropriate noise is difficult.  A lawn mower is very, very loud, but acceptable during daytime for a while, right? Using a power saw during a nighttime storm to remove a branch that threatens your house is certainly not unreasonable, but writing that into a decibel-based ordinance is easier said than done. A locality may want to exempt in its ordinance common and accepted noises such as church bells or carillon music on Sunday morning.  But how to do this without facing a complaint that the locality is treating the sports bar opening early for the big NFL game that is just as loud unfairly?

Noise decibel limits are also not that easy for a typical law enforcement officer to apply and could have other disadvantages for enforcement.  See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities and the New Policing, 97 Colum. L. Rev. 551, 614 (1997).  At a minimum, the right (fairly expensive) equipment and an authorized person trained to use it must be available at the time of the complaint and the noise.  I previously raised concerns with the difficulty of using decibel limits and meters on this blog.

We anticipate continued challenges to noise ordinances post-Tanner, and nearly as many creative ways to address the regulation of noise as there are Virginia local governments.  Will decibel levels be the answer to Tanner?

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Update: March 10, 2011 — In one Virginia county, the answer is “yes.”  Albemarle County adopted a noise ordinances for farm wineries using decibel levels with a civil penalty and did NOT adopt another noise ordinance using an “audible” standard and criminal penalties.  See article here.

Forecast has become fact, as ordinances across the state have been struck down or charges dismissed.

In the City of Richmond, a noise ordinance adopted after the Tanner decision was struck down by the Richmond General District Court as being too vague and ambiguous.  The City chose not to appeal, and is now in the midst of amending the ordinance rather than keep fighting.

The City’s proposed new ordinance has already received a lot of criticism, and so there appears no end in sight to the challenges to find an enforceable Richmond noise ordinance post-Tanner!

And just recently, in Souter v. County of Warren, a panel of the Virginia Court of Appeals issued a majority opinion that a noise ordinance adopted by the Warren County Board of Supervisors pre-Tanner was similarly vague and ambiguous.  Based on Tanner, the Court’s opinion ruled the Warren County noise ordinance unconstitutional on essentially the same grounds of vagueness and due process.  A third judge wrote in his concurring opinion that he personally believed that the ordinance “withstands constitutional muster” but felt he had to concur with the majority because of Tanner and the principles of stare decisis.

Warren County had already amended its ordinance, and its new ordinance has yet to be tested.

As I suggested on this blog previously, the reasonable person standard is a maleable standard that has been upheld time and time again throughout legal history as an objective standard.  In Tanner, the Virginia Supreme Court held it to be a subjective and vague standard in a criminal noise ordinance and therefore violating the constitutional due process standard.

As noted by the U.S. Supreme Court in upholding the “reasonable person” standard in a noise ordinance against a vagueness due process challenge, localities are “condemned to the use of words” and therefore “we can never expect mathematical certainty from our language.”  Virginia courts now are required to apply the law from Tanner, but should be cautious not to hold the standard of certainty so high that no local noise ordinance can pass constitutional muster.  But the standard is plainly higher than it once was.

By rejecting the reasonable person standard as being too vague, Tanner has left local governments struggling to adopt ordinances that are not only objective but also can be readily applied.  This struggle was played out most recently in Warren County and the Court of Appeals, as shown in the separate opinion written by one justice. We expect to continue to see this struggle played out in the Virginia courts.

What are the rights of the public attending a meeting to speak to the public body? Do the members of the public body have a right not to be personally attacked? And does the public body have an obligation to all citizens to get its business done?

Virginia Local Government Attorneys and other public officials get presented these difficult questions in various forms, often at a heated or difficult moment.  Given the importance of the competing interests, and the likelihood that lay people involved have strong beliefs in their rights in this regard, it is important for local government attorneys to be clear in their legal advice on the matter, and for public officials to be firm and fair.

The relative importance of these competing interests and the proper balance between the competing public and individual rights and the need for civil public discourse became the subject of debate after the recent incident in Arizona, and caused my fellow member of the Sands Anderson Local Government Team to write this essay on ‘Civil Discourse and Free Speech.”

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Civil Discourse and Free Speech:  Can Good Manners be Mandated?

By:  M. Ann Neil Cosby, Esquire

Since the deadly attack in Arizona just weeks ago, much ink and air time has questioned whether “political vitriol” has gone too far, and civil discourse and cooperation in America are now mere niceties of the past.   

While it does seem that economic distress, nationwide polarization on issues, and widespread personal hardships have led to heated, and sometimes nasty debates, legally speaking, is there anything that local legislators can do to tone it down?  Where to draw the line between mandating civil discourse in a public meeting and infringing on free speech? Can a local government really stop someone from expressing themselves when political rhetoric turns into a personal attack?

The answer is a resounding – “yes, probably.”  While free speech is a First Amendment constitutional right in this country, it is not free from all restriction.  And while many people may be familiar with the prohibition against yelling “fire” in a crowded theater, most may not know what, if any, restrictions may be placed on a speaker in a public forum.  Fortunately, in Virginia we have direction from the U. S. Court of Appeals for the Fourth Circuit about how local governing bodies can help keep public discussion peaceful and polite.

In 2008, the Fourth Circuit held in Steinberg v. Chesterfield County Planning Commission, et al. 527 F.3rd 377 (4th Cir.2008), that in a “limited public forum,” like a public meeting, the government has a “significant interest in maintaining civility and decorum during the public comment sessions of its public meetings, both to ensure the efficient conduct of the people’s business and to maximize citizen participation in the discussion.”  As such, the Court opined that  local government officials were entitled “to cut off speech which they reasonably perceive to be, or imminently to threaten, a disruption of the orderly and fair progress of the discussion, whether by virtue of its irrelevance, its duration or its very tone and manner.” (Emphasis mine)

Explaining further, the Court stated that the “’disruption’ to which this interest extends — as an ‘evil’ to be avoided – […] is of course not confined to raw, physical violence, but includes any conduct that significantly violates generally or specially established rules of parliamentary order, and ‘disrupts’ by that means the orderly conduct of a meeting.”  As personal attacks on local officials and/or other individuals lead “almost inevitably to a responsive defense or counterattack and thus to argumentation that has the real potential to disrupt the orderly conduct of the meeting,” the Court found that local policies prohibiting “personal attacks” are not per se invalid.  

The Court cautioned, however, that any restriction, including policies against personal attacks, must not discriminate or be misused “to chill or silence speech” based on a speaker’s viewpoint. In other words, so long as a speaker stays on topic, does not speak unreasonably long, and speaks in a tone and manner that, while pointed and direct – and maybe even a bit heated – could not reasonably be perceived as disrupting the conduct of a meeting, he or she is entitled to express his or her viewpoint.  Even one that others might not want to hear, and even those that may be patently offensive.  

Have you experienced any display or behavior in a recent public meeting that crossed the line? How was it handled?

Legislative bodies like our local elected boards and councils should have an absolute privilege for good reason. Frank advice and reports from staff, and unconstrained comment from the public is important for our representative democracy.  Dishonesty, error or even mean-spirited accusations can sometimes be (an unfortunate) part of the noise of democracy, just as honesty, truth and positive and well-meaning comments can (fortunately) be.  Public policy suggests that letting the legislature weigh all the information and act in the best interests of its citizens is better than the legislature receiving half of the story from staff or the public for fear of a lawsuit.

Apparently, Virginia local government attorneys were right. But not entirely.

Isle of Wight County v. Nogiec Decision

In a recent opinion handed down on January 13, 2011 by the Virginia Supreme Court in the case of Isle of Wight County v. Nogiec, the Court assumed without deciding that a local elected body had an absolute legislative privilege “when it is creating legislation,” but held that no absolute privilege exists when the governing body is acting “in its supervisory or administrative capacity.”  In the latter case, only a qualified privilege exists, which can be overcome by allegation and proof of malice. 

On the facts of this case, the Court went on to hold that no evidence had been presented that the Isle of Wight Board of Supervisors was considering legislation when it received the report in question from an assistant county administrator.  To the contrary, the evidence showed that the “Board had convened to receive a report on the efforts being undertaken to repair County property….”  (The Court did not reach the issue of whether a failure to plead absolute immunity as an affirmative defense constituted a waiver of that defense.)

So under Nogiec, reports and statements to a local governing body can be absolutely privileged.  But that absolute privilege only attaches if the governing body is acting legislatively. 

Concerns with Nogiec Rule

There are concerns with Nogiec’s “sometimes but not always” approach to privilege in speech before a governing body.  While the Nogiec rule plainly makes it easier for an allegedly harmed plaintiff to bring a defamation case to trial, it may harm the public process.

Whether a local governing body is acting legislatively is frequently not clear to the governing body and certainly not to those speaking to the body. And, since the question of whether a governing body is acting legislatively may not be decided until after trial, this could have a chilling effect on information flowing to elected officials.

Is a Local Governing Body Acting Legislatively?

Local elected bodies have lots of roles, as pointed out by the Supreme Court. They are not always obviously legislative or administrative, but frequently can be a blend of several roles.  Acting legislatively may not be limited to “creating legislation” like an ordinance.  And the true nature of the governing body’s role at the time certainly may not be clear in the heat of the moment when a question is being asked by an elected official.

Backstopping all of its roles is the governing body’s chief role as the local legislature, with the ability to craft and make the laws that govern the locality.  Every report, every investigation, every answer, every record, and all information assists the local legislative body in determining whether its existing ordinances or new ordinances being considered are appropriate, need amending or adopting.  While it is true that some items on the agenda may, on their face, appear to be supervisory or administrative, underlying them frequently is a legislative consideration or local law that is being applied or could be adopted. 

Everything informs the legislature, even if an ordinance amendment may not be on the agenda at the moment.  Potential legislation may be in the mind of the elected official when asking a question during a seemingly-unrelated agenda item. Is it less important for our elected officials to get the full picture before deciding to start “creating legislation” than after?

The Possible Chilling Effect of Nogiec

Unlike with an absolute privilege, a qualified privilege must be proven by the defendant.  Therefore, a potential defendant might not know until trial whether a privilege exists or not.  The ruling in Nogiec, then, could chill the comments of staff and even the public in significant matters before the governing body.  If a plaintiff alleges malice, a full trial may be required before resolution of a qualified privilege defense. This gives potential plaintiffs a big stick to carry.

As the Virginia Supreme Court has noted in its sovereign immunity jurisprudence, the threat of being dragged into litigation can have a serious detrimental effect on a public servant and his or her efforts on behalf of the public.  Messina v. Burden, 228 Va. 301, 308, 321 S.E.2d 657 (1984) (describing “eliminating public inconvenience and danger that might spring from officials being fearful to act” and  “preventing citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation” as among the purposes of sovereign immunity).

For this reason, Nogiec could mean that a governing body will receive less than the full and candid thoughts of staff or the public in the future.  Getting the complete story is arguably no less important for a governing body than for a court, before which an absolute privilege always applies.

In its opinion, the Court said it was striking a balance between the “public interest in free speech” and the “potential harm to an individual’s reputation.”  What do you think?  Did the Court strike the right balance?

The following is the summary from the Virginia Supreme Court website:

091693 Isle of Wight County v. Nogiec 01/13/2011 In a lawsuit charging a county with breach of an employment severance contract and asserting a defamation claim against its assistant administrator, the circuit court erred in denying the county’s motions to strike and set aside the verdict because the evidence was not sufficient to support a claim for damages. The judgment for plaintiff on the breach of contract claim is reversed. The circuit court, however, did not err in denying motions to strike and set aside the verdict on plaintiff’s defamation claim. The statements alleged were not absolutely privileged because they were not made during a legislative proceeding. The qualified privilege report to a subordinate legislative body was applicable, whether the executive’s statements were compelled or volunteered, making them actionable only if plaintiff was able to prove that they were made with malice. Accordingly, the circuit court did not err in denying the individual defendant’s motions to strike and set aside the verdict on the defamation claim.

On Monday evening, Phil Baxa, my good friend and colleague, stood in my office, chatting about “work stuff,” catching up after several days of not stopping to speak, even though our offices are next door to each other. Having both recently moved our practices to Sands Anderson, we had a lot in common. We talked about how “life is too short” to let negative situations rent space in our heads, and how happy we were to be working in our new (his) and relatively new (my) home.

Little did we know that less than 12 hours later, Phil would take his last breath.

As I lay awake not able to sleep over the shock of his passing, I wondered what Phil would have done if he had known that he had just a few short hours to live. Not stand there talking in my office, for sure.

On second thought, he would have taken time out to at least stop in for a second on his way out to see how I was doing after recent foot surgery. Then he would have told me I looked pretty good even with a limp, and with a wave of his hand and a smile, he would have left. That was Phil. He truly cared about those around him.

For sure he would have headed home to his wife, and held her close, called his children, given last words of advice. He would have thanked them, and he would have told them all how much he loved them. With only 10 hours remaining, there would not have been a whole lot to do but just say goodbye. But Phil didn’t know that he had so few short hours left.

Tomorrow is Thanksgiving Day. I know that those of us at Sands Anderson will all give thanks for the privilege of having known and worked with Phil. While we can’t live out our lives constantly in fear of possibly having only a few hours left, Phil’s premature passing serves as a stark reminder. What we say to others and what we do as we pass through our workaday lives is important. Memories of how we treated others in the workplace will stay behind forever. Our memories of Phil are good ones.

Godspeed, Phil.

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Note:  This is a proud reprint of a post authored by Karen Elliott, Esquire, first appearing on November 24, 2010 on the Sands Anderson PC Virginia Workplace Blog.  Check out the Virginia Workplace Blog at http://virginiaworkplacelaw.com.

We will miss you, Phil.  At this time of family, friends and good cheer, I am reminded that you are one who lived out the best of this season year round.

In addition to excellent and helpful CLE and several networking opportunities, many LGA attorneys also honored the conference theme of “Let’s Get Active!” It helped that the weather was lovely, cool and sunny — perfect for outdoor activities.

As reported in the Virginia Lawyers Weekly, some LGA attorneys participated in a motorcycle ride, organized by Frdericksburg City Attorney Kathleen Dooley and local attorney Jim Guynn.

A number (including this author) partcipated in a bicycle ride organized by Roanoke City Attorney Bill Hackworth on the Roanoke River Greenway, touring along the way some of the redevelopment successes in the City of Roanoke.

Some (including this author) hiked to the summit of nearby McAfee Knob on the Appalachian Trail, and took in the incredible view of the adjacent valleys, mountains and Roanoke City Reservoir watershed. The hike is very popular in the area and given the weather, was well-traveled by Virginia Tech students, couples and others. The 270 degree views were amazing as we stood on the granite shelf almost 3,000 feet above sea level.

Yes, we local government attorneys practice law and spend lots of time in an office, court or government buildings. But, we also like to get active!

Thanks to the LGA Board, staff and conference committee for an excellent conference. And special thanks to the organizers of the outdoor activites that added so much to our time in the Roanoke valley.

As reported by the Virginia Lawyers Weekly, the Richmond Bench Bar Conference addressed the issue of sanctions yesterday.

A panel consisting of Richmond Circuit Court Judge Beverly Snukals and Richmond General District Court Judge Barbara Gaden and U.S. Magistrate Judge Dennis W. Dohnal (named by Virginia Lawyers Weekly as Virginia’s top “Leader in the Law” later that day) discussed sanctions.

Among the reasons the judges cited for not imposing sanctions, the article reported, were failure to “meet and confer” under Rule 4:1(g), a “gotcha” aspect to some motions, existence of a competing motion for sanctions and the court’s understandable desire to get to the substance.

The “take away” from these judges seems to be to avoid these disputes where you can, act reasonably in your approach to discovery, make the evidence of abuse clear, give the to-be-sanctioned party notice and discuss ways to avoid the sanctions with the party in advance.

And perhaps, expect not to get them very often.