http://www.courts.state.va.us/scndex.htm)

090444 James v. City of Falls Church 06/10/2010 The trial court did not err in granting a motion to strike the evidence, or in dismissing an action by a church which had been denied an application for consolidation of several lots after consideration by a zoning administrator, planning staff, and the locality’s planning commission. The circuit court did not fail to apply the correct standard of review, and the church failed to show that the planning commission’s denial of its consolidation application was not properly based on the applicable ordinances, or was arbitrary or capricious, as was its burden of proof under Code §§ 15.2-2259(D) and -2260(E). The circuit court did not err in finding that the commission had the right and authority to disregard the zoning administrator’s interpretation of a local ordinance in deciding whether to approve or disapprove the consolidation application. The judgment is affirmed.

091180 Advanced Towing v. Fairfax County Board 06/10/2010 The trial court did not err in sustaining demurrers in a suit for declaratory relief filed by two towing companies challenging an ordinance requiring them to have a vehicle storage facility within the boundaries of the county. A reasonably conceivable state of facts appeared on the pleadings concerning enforcement of the provision that could provide a rational basis for the classification made by the ordinance under review, and the territorial limitation therefore survives analysis under the Equal Protection guarantee of the Fourteenth Amendment. Likewise, the Dillon Rule of limited local government powers allows a reasonable selection of method permitting local governing bodies to exercise discretionary authority where a statutory grant of power has been expressly made but is silent upon the mode or manner of its execution. The judgment is affirmed.

091271 TC MidAtlantic Development v. Commonwealth 06/10/2010 In a construction contract dispute, the trial court did not err in dismissing on demurrer two counts of a complaint brought by a construction company against the Virginia Department of General Services on the ground that compliance with conditions precedent for such claims was not adequately pled. The trial court erred in sustaining a demurrer and dismissing another count of the complaint as to which the timely claims requirement set forth in the demurrer was not applicable. The judgment is affirmed in part, and reversed in part, and the action is remanded for further proceedings.

091343 Covel v. Town of Vienna 06/10/2010 The judgment is affirmed in three consolidated circuit court actions involving challenges to a local historic preservation ordinance and decisions made by the locality thereunder. No evidence in the record rebuts the presumption of validity of the locality’s decision denying a certificate of appropriateness to build a fence and denying permission to remove various parcels from the historic district. Code § 15.2-1427(C), reenacted in 2000, bars all non-constitutional challenges to the adoption of ordinances existing at that time, such as the ordinance involved in these cases. The ordinance provisions at issue here are sufficiently precise and definite to give fair warning of the information required for applications under its terms, and no error is found in the judgment of the circuit court dismissing the as-applied challenge to the ordinance.

We’ve been busy!  (This will explain, in part, the length of time since my last post, for which I apologize.)

Planned for several months, the webinar was well-received and timely, given two major vested rights decisions by the Virginia Supreme Court in 2009, Hale v. Board of Zoning Appeals of Blacksburg, 277 Va. 250, 673 S.E.2d 170 (2009) and Board of Supervisors of Stafford County v. Crucible, 278 Va. 152, 677 S.E.2d 283 (2009), and the amendment  of the vested rights statute, Virginia Code § 15.2-2307, by the 2010 General Assembly via HB 1250.

The webinar included an overview of vested rights law that lead up to the codification of a Virginia statutory vested rights standard in 1998, the vested rights cases since codification, most notably City of Suffolk, ex rel Herbert v. Board of Zoning Appeals, 266 Va. 137, 580 S.E.2d 796 (2003), and, of course, Hale and Crucible.

The webinar also included excellent analysis by Karen Harwood, former Deputy Fairfax County Attorney and long-time legislative liaison for Fairfax County.  Karen gave her perspective as one involved in both the General Assembly process that lead to the original codification of vested rights in Virginia in 1998, and this year’s process that led to this year’s HB 1250.  Her extensive experience in both land use law and in the legislature, and her straight-forward commentary and advice made the webinar a learning experience for everyone.

Joining me on the panel from Sands Anderson were Ann Neal Cosby and Annemarie Cleary, fellow members of the Sands Anderson local government team and primary authors of the local government amicus curiae brief in the Crucible case.  Since I authored the local government amicus curiae brief in the Hale case, Sands Anderson has been very active in the advancement of vested rights law in Virginia!

There were two primary goals in offering the webinar for free to local government attorneys, zoning officials and staff: (i) to give local governments free training at a time when their budgets are stretched, and (ii) to give timely commentary and assistance to local governments trying to address HB 1250.

As discussed in an earlier post on this blog, HB 1250 added a new defined “significant affirmative governmental act” (SAGA) to the six already delineated in the statute.  Now, for the first time, a written determination by the zoning administrator can, under the right circumstances, be a SAGA.  By statute, a SAGA can potentially vest rights to a use or density despite a change in the zoning ordinance.  So the stakes can be quite high.

Here is an excerpted version of the outline on Vested Rights 2010, to give you an idea of the content of the webinar.  Local government attorneys, zoning officials and staff members are welcome to contact me for the full outline.

Thanks to the over 200 local government attorneys, zoning officials and staff who participated, and the entire team that made the webinar a success! 

We are planning another installment of the Sands Anderson Land Use Forum for Fall 2010, tentatively scheduled for November 17, 2010.  What topic would you like to see presented?

The U.S. Supreme Court denied the request for a writ of certiorari by the City of Virginia Beach to review the Virginia Supreme Court’s decision overturning the City’s noise ordinance in Tanner v. City of Virginia Beach, 277 Va. 432, 674 S.E.2d 848 (2009).  The Daily Press article on the writ denial is here, and the Virginia Lawyer’s Weekly article on the same topic is here.

Unfortunately, the U.S. Supreme Court did not ride to the aid of Virginia Beach, Virginia localities and others dealing with the aftermath of Tanner.

This leaves Virginia localities to grapple with various issues.  Local government drafting issues were discussed in my first blog article from last year, while larger questions of law were discussed in my second blog article on the topic. 

The two biggest issues that remain post-Tanner have nothing particularly to do with noise ordinances.  Tanner may cast a big shadow.  The question is — how big?

The first issue is the arguable inconsistency in how the Virginia Supreme Court has interpreted the Virginia and U.S. due process clauses.  The Virginia Supreme Court has repeatedly held them to be co-extensive.  And yet, the Virginia Supreme Court has ruled in Tanner that the “due process clause” is violated by the “reasonable person standard” as inherently vague and subjective.  This is inconsistent with how the federal courts have dealt with the issue, including the Fourth Circuit Courts of Appeals, which have upheld the standard as inherently objective.  This is discussed further in my earlier article.   

What does this mean for other due process cases down the road?  Are the two due process clauses no longer the same legal standard?

The second issue is also significant one in legal jurisprudence — that is, the arguable end of the objective “reasonable person” standard in Virginia, at least in criminal statutes and ordinances.  Since violations of most local government ordinances are misdemeanors, this falls heavily upon Virginia localities.  Already, criminal cases have been thrown out by judges in localities because the ordinance in question used the “reasonable person” standard.

But is Tanner limited merely to criminal statutes and ordinances?  What is Tanner‘s effect in the civil context?  After all, the “reasonable person” standard is used frequently and routinely in statutes, ordinances, regulations, and contracts.  Is it subjective and vague in all contexts? 

Since law school, I have been taught and read in case after case that the “reasonable person” standard is objective.  This has been sustained in legal jurisprudence through the centuries.  Now, in Tanner, the Virginia Supreme Court has apparently held that it is subjective (at least in Virginia, in this case).  Does this mean that the venerable “reasonable person” standard is now off-limits, or at least inadvisable in any context that calls for an objective standard for clarity and enforceability, be it statute, ordinance, regulation or contract?

Many local government attorneys would say “no.”  The Virginia Supreme Court made its ruling in a criminal context, applying a familiar due process vagueness standard — “that a statute or ordinance be sufficiently precise and definite to give fair warning to an actor that contemplated conduct is criminal.”  Tanner, 277 Va. 432, 439, 674 S.E.2d 848 (2009).  The Court used the word “context” several times in its discussion of  the ‘reasonable person” standard, and even distinguished the use of the “reasonable person” standard in a noise ordinance from other criminal contexts.  The analysis and reasoning the Supreme Court used in Tanner simply does not apply to a civil ordinance, and may not even apply to a non-noise ordinance.

Because of this criminal – civil distinction, many localities have sought to address Tanner by making the noise ordinance a civil affair, thus avoiding the  case’s criminal due process analysis. 

As I write, 2010′s Senate Bill 246 (Watkins) and several identical bills are making their way through the Virginia General Assembly.  If adopted, these bills would clarify that localities have the authority to impose civil penalties on noise ordinance violators.  Many localities intend to retain the often-preferred “reasonable person” standard to regulate noise, but avoid the constitutional infirmity of the Virginia Beach criminal noise ordinance.

So, the “reasonable person” is not dead. It’s being resuscitated as we speak.  If it needed such heroic measures at all.

What do you think?  Is the “reasonable person” standard dead in Virginia? On life support? Or, alive and well, just not for use in defining criminally loud noise?

Let me briefly mention some of the more significant ways that life at the BZA has become more complicated and difficult over time:

1993. First statutory authorization of zoning administrator vested rights determinations, complex legal and factual cases that are quite adversarial when appealed to the BZA. 1993 Acts ch. 672 (amending former Virginia Code § 15.1-491, now § 15.2-2286(A)(4)).

1995. The so-called “sixty-day rule” is adopted. 1995 Va Acts ch. 424 (amending Virginia Code § 15.1-496.1, now § 15.2-2311(c)). The complicated and curious statutory exception to the settled general “no estoppel against local government” has been raised more and more by landowners in recent years. See, e.g., Goyonaga v. Board of Zoning Appeals of Falls Church, 275 Va. 232, 244, 657 S.E.2d 153 (2008)

2003. Virginia State Bar issued LEO 1785 (November 14, 2003), which declared it unethical for a local government attorney to provide any legal services to a BZA (even review the advertisement) and later represent the zoning administrator in that case. This caused many local government attorneys (including this one) to take the position that they would not represent the BZA at all. Many local governments decline to hire their BZAs counsel when requested. Given the complex nature of what a BZA is expected to do, this has sometimes caused or exacerbated a division between the local BZA and the governing body. See, e.g., Board of Zoning Appeals of Fairfax County v. Board of Supervisors of Fairfax County, 276 Va. 550, 550, 666 S.E.2d 315 (2008).

2004. BZAs used to issue variances more frequently as a “relief valve” in many communities. Cochran v. Fairfax County Board of Zoning Appeals, 267 Va. 756, 756, 594 S.E.2d 571 (2004) largely shut the valve by clarifying the tough standard to qualify for a variance. This has caused more appeals of zoning administrator determinations to the BZA, which are frequently quite adversarial between the locality and the landowner.

2006. As BZAs were called upon to hear increasingly complex and numerous appeals from zoning administrator determinations, they were given less deference on appeal. 2006 Va. Acts c.446 (amending Virginia Code § 15.2-2314). Since July 1, 2006, BZAs are only given a presumption of correctness on factual determinations, and all legal issues are presented to the circuit court de novo. And, of course, when an appeal goes to circuit court, the BZA gets named as a party.

There is going to be greater detail in an article I will publish in the coming year. What are your thoughts on the plight of our BZAs and the increasing complexity of their job? What’s a better way for local governments deal with them? Y0ur comments are welcome in the form below. Please let us hear from you!

These questions arise from the Virginia Supreme Court’s reliance on the “Due Process Clause” – all caps, with no citation – to strike down the City’s noise ordinance for being unconstitutionally vague.   The Court mentioned U.S. Supreme Court opinions whenever referring to this clause, so it appears the Court applied the Due Process Clause of the U.S. Constitution, found in the Fourteenth Amendment, Section 1.

If so, this presents the first question:  Has Virginia’s highest court has ruled contrary to the United States Supreme Court in interpreting the federal Due Process Clause?

The justices in Washington, D.C. have repeatedly upheld some version of the “reasonable person” standard in Due Process Clause vagueness challenges.  See Grayned v. City of Rockford, 408 U.S. 104 (1972), Cameron v. Johnson, 309 U.S. 611, 616 (1968),  Kovacs v. Cooper, 336 U.S. 77, 79 (1949).  For example, the nation’s highest court has opined that so long as an ordinance contains an “ascertainable standard” such as “the sensitivity of a hypothetical reasonable man,” the ordinance is not unconstitutionally vague.  Coates v. City of Cincinatti, 402 U.S. 611, 613-614 (1971).

Not surprisingly, the Fourth Circuit Court of Appeals has reached the same result. See Jim Crockett Promotion, Inc. v. City of Charlotte, 706 F.2d 486, 493 (4th Cir. 1983) (“we have no difficulty sustaining the Section [prohibiting “loud, disturbing … noise”] against the charge of vagueness.”); Asquith v. City of Beaufort, 139 F.3d 408, 411 (4th Cir. 1998) (upholding local noise ordinance against constitutional due process vagueness challenge because it had been interpreted by the state supreme court to prohibit noises “unreasonably loud under the circumstances.”)

Given this, is it possible that the Virginia Supreme Court intended to apply the state due process standard found in Article I, Section 11 of the Virginia Constitution?  It does not appear so.  The Court did not cite the Virginia Constitution, or even cite its own precedent which has interpreted the Virginia due process standard.  However, if the Court did rely upon the Virginia Constitution, it seems that the federal Due Process Clause now provides a different standard of protection than its Virginia counterpart.

But, if so, this raises a second, more troubling question.

The Virginia Supreme Court has always declared Virginia’s due process protection to be “co-extensive” with the federal Due Process Clause of Section 1 of the U.S. Fourteenth Amendment.  E.g., Willis v. Mullett, 263 Va. 653, 657 (2002).  In its Tanner opinion, while the Virginia Supreme Court cited numerous federal cases to support its opinion, it did not address the “co-extensive” issue.  In fact, the Court declined to discuss this issue when explicitly requested to do so.  In its Petition for Rehearing, the City of Virginia Beach fairly presented the second question:  Does the Virginia Constitution’s due process protection remain co-extensive with the U.S. Constitution’s Due Process Clause?

Two major, alternative questions remain after the Tanner decision:  (1) Has the Commonwealth’s highest court interpreted the U.S. Constitution’s Due Process Clause differently than the U.S. Supreme Court?  (2) Has the Virginia Supreme Court, without discussion or comment, uncoupled the formerly identical constitutional due process protections so they are no longer “co-extensive?”

As big an impact as the Virginia Supreme Court’s striking down the “reasonable person” test as a criminal standard will have on local noise regulation, the answers to these two questions may have an even greater long-term impact on constitutional jurisprudence.

In its opinion, the Virginia Supreme Court ruled that the City’s noise ordinance was facially unconstitutional because its use of the “reasonable person” standard did not provide “ascertainable standards” for potential defendants.  The Virginia Beach ordinance at issue, in part, prohibited noise that was “unreasonably loud, disturbing and unnecessary.”  This, the Court held, violated the “Due Process Clause” because it was too vague to give fair notice to prospective defendants of what conduct was prohibited.  See the opinion at the Court’s website.

After some weeks, I am recovering from surprise and disappointment, but remain concerned with the aftermath of the opinion.

My concern does not arise solely from the Court’s choice to adopt a minority position, although I do note that a majority of state supreme courts have reached a contrary result.  My concern relates to the impact of the ruling on the ability of local governments to regulate noise in the public interest.  Do not underestimate the difficulty facing local government attorneys.  As I write, many across the state are struggling to write an enforceable noise standard to replace the reasonable person test.

Two major types of standards appear to remain.  First, ordinances may regulate noise by use of decibel levels.  These ordinances are fairly common, but are notoriously difficult to write and even more difficult to prosecute.  Second, ordinances may define examples of noise disturbances.  These are also difficult to write, although the courts seem to accept them more readily than other types of noise ordinances.  One thing local government attorneys may wish to consider in defining examples of noise disturbances is referencing another state statutory standard similar to disturbing the peace.  However, none of these options are easy to draft or easy to prosecute.

In addition, beyond noise ordinances, I am concerned with the broader impact of the ruling on other ordinances and criminal statutes. Warrants have already been dismissed in at least one locality because the local ordinance, not having anything to do with noise, referenced the “reasonable person” standard.  This bedrock of jurisprudence appears to be off limits for Virginia local governing bodies and even the Virginia General Assembly in defining criminal conduct.  I predict this will be a significant issue in the aftermath of Tanner, and one not immediately obvious.

Next time: Tanner v. City of Virginia Beach, Part Two: Lingering Questions and the “Due Process Clause” Applied to Local Noise Ordinances