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.

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 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.

The Virginia Supreme Court issued several opinions today affecting Virginia local government law.  The following summaries come from the Virginia Supreme Court website:

092583 Volpe v. City of Lexington
In a suit by the administrators of a minor decedent who was an invitee at a city park that included a dammed portion of a river, and drowned in a dangerous water current (hydraulic) around the dam, the natural, ordinarily encountered dangers of the river were as a matter of law open and obvious, but the dangerous current was not necessarily visible to a swimmer, and the circuit court erred in holding as a matter of law that the dam presented such an open and obvious danger. That factually specific determination was an issue for the jury. Regarding plaintiffs’ gross negligence claim, reasonable persons could differ on whether the cumulative effect of the circumstances constituted a form of recklessness or total disregard of precautions, an absence of diligence or lack of even slight care by the city, and it was error to strike the evidence on that claim. However, there was no error in the granting of a motion to strike plaintiffs’ claim for willful and wanton negligence against the city. The judgment is affirmed in part and reversed in part, and the case is remanded.

100048 Dean v. Board of County Supervisors                                                                                                                                 In a condemnation proceeding, there was no abuse of discretion in the ruling of the circuit court barring, on a motion in limine, introduction by the landowners of evidence at trial regarding a particular purported comparable sale of property to the same condemnor, because the landowners in the present case failed to produce evidence sufficient to establish that the purported comparable sale was voluntary and free from compulsion and not by way of compromise. The judgment is affirmed.

100068 Jenings v. Board of Supervisors
In a challenge by a landowner with riparian rights to a locality’s authority to regulate the construction of additional mooring slips and accompanying piers beyond the mean low-water mark of a tidal, navigable body of water, the circuit court did not err in denying relief on claims that the regulation was beyond the jurisdiction of the locality, and that the special exception permit ordinance is void for lack of adequate standards to guide the governing body’s decision to grant or deny a special exception permit. The judgment of the circuit court is affirmed.

092158 Ford Motor Credit Co. v. Chesterfield County   In ruling on a taxpayer’s application for refund of business, professional and occupational license taxes paid to a county, the circuit court erred in holding that all the taxed gross receipts from a car manufacturer’s credit and financing subsidiary’s local branch were attributed to the exercise of a privilege subject to licensure at the branch within the county under Code § 58.1-3703.1(A). The circuit also erred in concluding that it was not “impractical or impossible to determine to which definite place of business gross receipts should be attributed” under the requirement of Code § 58.1-3703.1(A)(3)(a)(4) and (b) that the gross receipts from the performance of services shall be attributed to the definite place of business at which the services are performed. The judgment is reversed and on remand the entitlement to a deduction must be determined under Code § 58.1-3732(B)(2).

092323 Johnson v. Woodard    In proceedings following petitions to remove members of a county board of supervisors pursuant to Code §§ 24.2-233 and 24.2-235 for alleged neglect of duty and misuse of office, a nonsuit order granted by the circuit court avoided the application of the 21-day time period of Rule 1:1 by including specific language stating that the court was retaining jurisdiction to address matters still pending, and that “for the purposes of Rule 1:1, this is not a final order.” While the court thus had jurisdiction to consider a sanctions application pending when the nonsuit was granted, under Code § 8.01-271.1 a court may only sanction an “attorney or party” who violates a duty imposed by the statute. Because the citizen petitioners were not parties to the removal action, the circuit court erred in imposing sanctions against them. The judgment is reversed and final judgment is entered on this appeal.

092385 Lee v. City of Norfolk   In an action for alleged constitutional, statutory and common-law wrongs by a city in demolishing a building needing repair on the plaintiff’s property that the city had deemed to be a public nuisance, there is no reversible error in the circuit court’s dismissal, upon demurrer and pleas in bar, of the claims for compensation and damages. The judgment is affirmed.

092486 Fairfax Redevelopment and Housing Authority v. Riekse   In an action by a county for specific performance, the circuit court’s determination that it could not order the former owners of a parcel to perform because it was impossible for them to offer the parcel to the county under a right of first refusal to repurchase the land was correct. The judgment is affirmed.

Check back to this blog later for more on some of these individual cases.

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?

_________________

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.

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.

The statutes involved are Virginia Code section 15.2-2400, et seq., dealing with creation of service districts.

Background

Stafford County had adopted two service district ordinances to provide “road improvements” which “are expected to generally improve vehicular traffic flow and transportation safety” and “enhance business opportunities … [and] improve access to businesses” in the service districts.  Funding for the imrpovements was to come from a special tax assessment within the districts, as well as other state, county and private sources.  Significantly, the Board of Supervisors excluded residential but not industrial and commercial properties from the special tax.

The Challenge

The plaintiff challenged the ordinances on several grounds.  The Supreme Court disagreed with the plaintiff on all of them. 

First, the plaintiff argued that the Stafford County Board of Supervisors lacked the authority to adopt the ordinances.  If the Board of Supervisors had authority, the plaintiff argued that the Board’s exemption of residential properties constituted unconstitutional special legislation.  Lastly, the plaintiff argued that the ordinances failed to state their purpose, plan for improvements and benefits as required by Virginia Code section 15.2-2402(2), (3) and (4).

The Holding

The Supreme Court easily held that localities have express authority to adopt ordinances creating service districts, citing Virginia Code section 15.2-2400. 

The Court went on to uphold the tax classification scheme to exempt residential properties as expressly authorized under Virginia Code section 15.2-2403(6) (“Such tax may be levied on taxable real estate zoned for residential, commercial, industrial or other uses, or any combination of such use classification….”).  And, citing FFW Enterprises v. Fairfax County, the Court held that such a classification was not unconstitutional, as the Virginia Constitution expressly empowers the General Assembly to define and classify taxable objects. 

The Court then held that the relatively simple statements of purpose, proposed plan and benefits of the service districts expressed in the ordinances (see quotes above) satisfied the requirements of Virginia Code section 15.2-2402(2), (3) and (4).

Significance

This order is significant for many reasons, beyond the obvious importance to Stafford County.  All Virginia localities are facing a growing lack of state funding for infrastructure such as roads.  As a result, funding for transportation and other important infrastructure are increasingly being funded through special taxes imposed within service districts, Community Development Authorities, and other authorities and means. 

There are many excellent reasons why exempting or excluding residential properties from a special or additional tax is reasonable as well as legal.  Some are discussed in the FFW Enterprises opinion.  But as a practical matter, governing bodies can more easily tax businesses that have the ability to grow and create revenue, which can be enhanced by the improvement being financed by the special tax.  This goes beyond convenience and is an economic and political reality.  The inability of a governing body to exclude residential property from a special tax could have severely limited the utility of these taxes to local governments.

Also importantly, the Supreme Court’s upholding the relatively simple descriptions of purpose, plan and benefits adopted by Stafford County as sufficient assists local governments by requiring a fairly low threshold of detail, and therefore allows some necessary flexibility as a major project unfolds.

Lastly, there is little authority in Virginia regarding how to adopt service district ordinances.  A series of Attorney General’s Opinions from about 1981 onward is the best we have.  This decision from the Virginia Supreme Court, although not in a published opinion, is a big help to local governments understanding the rules of (financing) the road.  

Note:  Citing unpublished judicial dispositions like this one “is permitted as informative, but shall not be received as binding authority.”  Rule 5.1(f) of the Rules of the Supreme Court of Virginia.  Citation to this unpublished order is controlled by Rule 5.1, which allows citation to a ”publicly accessible electronic database,” and, failing that, requires ”a copy of that disposition must be filed with the brief or other paper in which it is cited.”

Specifically at issue in this case was the constitutionality of two special tax levies, authorized by Virginia Code section 33.1-431, et seq and section 58.1-3221.3. Both statutes allowed special taxes to be imposed upon commercial and industrial properties, but not residential. This omission by classification was called into question by a taxpayer owning commercially-zoned property in Fairfax County.

Background

In 2004, Fairfax County created a special transportation district as authorized by Section 33.1-431, and in 2006, began to levy a special tax as authorized by Section 33.1-435 on all real property located in the district that is zoned for commercial or industrial use or used for such purposes, including property owned by the taxpayer, FFW Enterprises. Special tax revenues collected were to be used for transportation improvements within the district. Residential real property within the district is not subject to the special tax.

In 2007, the General Assembly adopted Virginia Code section 58.1-3221.3, which declared real property zoned or used for commercial and industrial uses in certain jurisdictions including Fairfax County to be a separate class of property and authorized assessment of an additional amount of real property tax on the class. The revenues are dedicated to local transportation improvements. In 2008, Fairfax County began to levy and collect this additional tax on all commercial and industrial property in the County.

Taxpayer’s Argument

The taxpayer asserted that Sections 33.1-435 and 58.1-3221.3 on ther face violated the requirement for tax uniformity of Article X, Section 1 of the Virginia Constitution under various theories.

First, citing the lack of specific constitutional authority expressly authorizing the General Assembly to separately classify different kinds of real property, the taxpayer asserted that under the principle of statutory construction, expressio unius est exclusio alterius, “rule of universality” should be applied so that “all real property be deemed one indivisible subject class for purpose of taxation.” Slip Opinion, at 9. Characterizing the two statutory tax classifications as exemption statutes, the taxpayer argued that the General Assembly could not exempt particular classes of property from taxation beyond those exemptions expressly provided in the Constitution itself.

The taxpayer also argued that the classifications had no reasonable basis because residential property, which was excluded from the two tax classes, also would benefit from the transportation improvements that would be constructed with tax revenues (notably in the case of 33.1-435 the extension of Metrorail service to Dulles Airport), based upon an older case, City of Hampton v. Insurance Company of North America, 177 Va. 494, 14 S.E.2d 396 (1941), that never had been cited by the Court for any purpose.

The Ruling

Applying the strong presumption under Virginia law for the constitutionality of statutes, the Virginia Supreme Court upheld both statutes as constitutional, and disagreed with both of the taxpayer’s arguments.

The Court declined to adopt a “rule of universality,” citing the broad authority granted the General Assembly in Article IV, Section 14 of the Virginia Constitution. Quoting Professor Howard, the Court noted that expressio unius est exclusio alterius does not apply in interpreting the legislative powers of the General Assembly. Rather, the Constitution restricts powers otherwise practically unlimited. Slip Opinion at 12. Observing that the uniformity requirement of Article X, Section 1 is tempered by language expressly preserving the general Assembly’s power to define and classify the subjects of taxation and noting long-standing rules against implied limitations on legislative power, the Court declined to imply a “rule of universality.”

The Court also ruled that there was no evidence that the classifications in question were unreasonable or arbitrary. Noting that the challenger on these grounds must affirmitively disprove every conceivable reasonable basis, the Court held that the taxpayer had failed to do so here. The Court observed that the City of Hampton case was based on specific circumstances not present in this case. The Court also ruled that even if it had been applicable, the taxpayer failed to meet the benefit/burden test of City of Hampton because the taxpayer here did not prove that residential property owners would benefit “as much [if] not more” than the commercial and industrial property owners. This latter ruling is especially important for all special taxes, because the Court rejected the taxpayer’s argument that proof merely that the untaxed would benefit to some extent from the funded improvements was proof enough of unreasonableness. This argument, if adopted, could have been the end of all special taxes for transportation and otherwise.

The tax classification authority of the General Assembly which resulted in these statutes was upheld.

Significance

This is a significant win for local governments, which are facing less and less support from the state for needed infrastructure improvements. Special taxes such as these, and those in service districts and CDAs, are an increasingly important source of needed revenue for infastructure critical to economic development. Legal limitations such as those argued by the taxpayer could have reduced or eliminated many opportunities for special taxes.

This opinion also affirms the scope of legislative discretion when reasonably classifying as needed for tax purposes. The opinion specifically upheld classification for taxation between commercial and industrial properties on the one hand, and residential on the other. This sort of classification is becoming more common on the state and local level.

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Note: Also on November 4, 2010, the Virginia Supreme Court issued an unpublished order in the case of Nageotte v. Board of Supervisors of Stafford County, Record No. 09053. Citing FFW Enterprises, the Court upheld a similar classification by local government within two service districts adopted pursuant to Virginia Code section 15.2-2400, et seq. This significant result for local governments will be discussed in a future post. In the meantime, see the Virginia Lawyers’ Weekly SCoVA Blog post regarding the order.

Wrong. The facts are actually quite analogous and the law is essentially the same.

At issue in TB Venture was whether the condomimum development could be valued as a whole on a “leased fee” basis, with the value of the whole then allocated to each unit, rather than a fee simple valuation of each unit. The plaintiff’s expert justified his “leased fee” approach on rent restrictions that applied across the entire development. On cross-examination, the expert admitted his was a “bulk valuation” and “purely an allocation.” The trial court granted the County’s motion to strike.

On appeal, the Virginia Supreme Court upheld the striking of plaintiff’s evidence. Just like the individual parcels in the business park in West Creek, the Court noted, each unit in a condominium is a separate piece of real estate, and the value of each must be at fair market value. Any restrictions on sale or rental, just like the alleged limitations on access and utilities in West Creek, can be taken into account in the individual fair market value, but does not alter the need to treat condominiums as separate parcels of real estate. Nor, the Court noted, do such factors alter the plaintiff’s burden to establish the value of each unit in order to prevail.

Yes, indeed. A condominium development in Arlington and a business park in Goochland can have a lot in common.

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Note: West Creek Associates LLC v County of Goochland and its 8-year saga is discussed by this author earlier on the VaLocalityLaw blog in a three-part series, Part 1, Part 2, and Part 3.

The case involved out-of-town water and sewer rates set by ordinance of the Town Council of Leesburg. Ordinances are legislative matters, and the Virginia Supreme Court has held several times that setting of rates by the governing body is a legislative action. E.g., Eagle Harbor LLC v. Isle of Wight County, 271 Va. 603, 628 S.E.2d 298 (2006). Every legislative action may be challenged , but a challenger faces a difficult test — overcoming the fairly debatable standard. Under this standard, even if the challenger introduces significant, even compelling evidence of unreasonableness, the locality can prevail if there is “any evidence” of reasonableness. Board of Supervisors v. Stickley, 263 Va. 1, 556 S.E.2d 748 (2002).

Here, even though the plaintiffs’ expert witness did a complex rate study and testified at length to the unreasonableness of the rates, Town witnesses testified that the method to set rates was appropriate, that an out-of-town differential is common, that this differential was in line with others across Virginia, and that the rates themselves were reasonable. Locality won. Simple. Right?

Maybe. The majority certainly so held, and confimed the “fairly debatable” standard as applying in reviewing the reasonableness of local government rate setting, and that “any evidence” of reasonableness is all that is required to uphold a legislative act.

But maybe not. The dissent pointed out that these particular utility customers lived outside of the Town limits and so had no say in the election of this Council. The dissent even compared the Council’s act to the taxation without representation in the not-so-recent “unpleasantness” of the late 18th century. The dissent suggested that the Town Council “had an obvious incentive to please their constituents at the expense of those who could not vote.” Opinion, n.2. As a result, the dissent disagreed not only with the majority but also the trial court, all of which applied the “fairly debatable” standard. Instead, the dissent suggested a “preponderance of the evidence” standard should apply.

This is an interesting argument and won the support of two justices.

But courts defer to legislators not just because of who elects them, but because of a separation of powers concern. The “fairly debatable” standard is deferential for good reason. Courts should not be in the business of deciding the contents of ordinances unless there is no reasonable basis whatsoever. Otherwise, the concern is unelected judges or worse, hired gun experts will be in the process of second-guessing officials elected to make these tough calls when evidence suggests that either result could be considered reasonable.

Like many tough calls our elected bodies make every month, utility rates are not a matter of a mere calculation or an expert’s report. Although involving financial models and mathematics, rates are based in part on policy considerations which are unquantifiable.

For example, in this case, the evidence showed that Town bore “owner’s risk” for losses, regulatory changes and weather-related expenses, and was required to raise Town taxes if the utility fund ever failed to pay bonds or necessary expenses of the utility. Customers outside the Town could not be taxed and did not bear that risk, which was largely unquantifiable. Given this evidence, the majority agreed to leave this decision to the elected officials.

This case is a significant case for local government ratemakers, as it reaffirms the deference afforded their decisions, and the proper application of the “fairly debatable” standard of review. This case also reaffirms the discretion municipal utilities have to measure owner’s risk and other unquantifiable factors and set rates accordingly.

Sands Anderson PC authored two amicus curiae briefs in this case on behalf of the Virginia Municipal League.

091455 Town of Leesburg v. Giordano 11/04/2010 In an action against a town challenging an ordinance that imposed a 100% surcharge on the water and sewer rates affecting properties owned by the complainants that were located in the county, but outside the town, the circuit court erred in ruling that the town failed to present sufficient evidence to meet its burden under the fairly debatable standard. The testimony of an expert that the increased water rate charged to out-of-town customers is fair and reasonable, and that the increased sewer rate charged to out-of-town customers is practicable, equitable, and uniform, supported by his justifications for his opinion, was sufficient to make the issue fairly debatable. The judgment of the circuit court is reversed and final judgment is entered for the town.

091621 TB Venture v. Arlington County 11/04/2010 In a taxpayer’s petition to correct erroneous tax assessments, the taxpayer failed to carry its burden to present evidence establishing the fair market value of individual condominium units, when its expert opined as to the fair market value of the group of units as a whole and then allocated a value to each unit based on its pro rata share of the income generated by all of the units. The judgment of the circuit court striking the taxpayer’s evidence is affirmed.

091883 FFW Enterprises v. Fairfax County 11/04/2010 In proceedings involving a challenge to Code §§ 58.1-3221.3 and 33.1-435 under the Constitution of Virginia, the plaintiff failed to meet its burden to prove that no reasonable basis for the tax classifications in these provisions can be conceived. The fact that untaxed others will benefit to some extent from the improvements funded by the taxes does not prove that there is no rational basis for the tax classifications approved by the General Assembly. The judgments of the circuit court are affirmed.

Discussion of each will be coming soon to this blog.

This opinion addresses what happens after a finding that an assessor has failed to consider and properly reject alternate valuation methods. After such a “failure,” what is the “next step” a trial court must take? What is the burden of the taxpayer at this point? Importantly, such a “failure” is not “error.” There are plenty of Virginia Supreme Court cases describing what happens after “manifest error.” But what happens after this sort of “failure?”

Opinion

The Keswick II opinion resulted from the second appeal of this case to the Virginia Supreme Court, which previously found that the assessor failed to consider and properly reject all three methods of calculating the fair market value of the property. See the Keswick I opinion here. Therefore, on remand, the assessment was not entitled to a presumption of correctness.

On remand, the circuit court took additional evidence from both sides, then determined the proper value was somewhere in between the experts for the two parties, at a figure submitted in a pre-litigation letter to the Board of Equalization and testified to at trial by the Club’s general manager.

The Court’s majority found that the circuit court misunderstood the holding in Keswick I, which held that because the assessor had failed to consider and properly reject alternate valuation methods, the presumption of correctness had been lost. The circuit court believed that because of this, the value itself was erroneous and set the value in accordance with the evidence. The majority noted that the Supreme Court in Keswick I did not find that the assessment value was erroneous. However, the majority then held that because the lower court went on to hold that the taxpayer’s expert’s opinion was “sufficient to support the circuit court’s finding that the County committed error in its assessment” this was a sufficient finding of erroneousness supported by evidence. Slip Opinion, at 10. Having made that finding of erroneousness, the Supreme Court majority held that the circuit court then had the power to set the value in accordance with the evidence.

Interestingly, Justice Kinser, in a firm dissent, disagreed that the circuit court did not err. Rather, she dissented and would have remanded the case back to circuit court because (i) the lower court misinterpreted the holding of the Virginia Supreme Court in Keswick I by assuming that failure to consider and properly reject alternate valuation methods and erroneousness of the assessment were the same, and (ii) the lower court erred in finding that the taxpayer had showed the assessment to be erroneous after the court rejected the expert evidence of the Keswick Club and set the value in accordance with other evidence presented originally to the Board of Equalization.

Key Issue

This is rare focus by the Virginia Supreme Court into what steps the trial court must next take after a finding that an assessor has failed to consider and properly reject alternate valuation methods. A previous case addressing this failure is Board of Supervisors v. HCA Health Services of Virginia, Inc., 260 Va. 317, 330 (2000) (court went on to hold manifest error was shown). Interestingly, the Court did not hold in either Keswick case that merely failing to consider and properly reject alternate valuation methods was itself error, but rather held it to be a “failure.” The Keswick II case then turned on this issue: What burden should the taxpayer bear after such a finding of “failure?”

Lesson Learned

It appears the lesson after such a “failure” is this: After a finding that an assessor has failed to consider and properly reject alternate valuation methods, the presumption of correctness is lost. However, the taxpayer still must bear a burden of proof to prove error. Thus, the trial court must determine whether the taxpayer’s evidence proves that the assessment itself or the application of the methodology is simply erroneous (“simple error”) — rather than manifestly erroneous (“manifest error”). If so, the trial court goes on to set the value itself in accordance with the evidence.

In other words, the burden is still on the landowner to prove erroneousness of the assessment amount or the application of the methodology, even if the assessor failed to consider and properly reject alternate valuation methodologies.

This makes sense, because simply failing to consider alternate valuation methods, for example, does not necessarily result in an assessment above fair market value. The two are not necessarily linked. A correct, fair market value could result from an erroneous methodology. Or, as pointed out in the West Creek Associates, LLC v. County of Goochland case, discussed in a three-part series earlier on this blog, Part 1, Part 2, and Part 3, a correct methodology could result in an erroneous assessment if the difference between the evidence of fair market value and the assessment is “substantial” enough.

The majority in Keswick II found that the trial court correctly relied upon the taxpayer’s expert opinion and the letter to the Board of Equalization to find the necessary error. Justice Kinser, in her dissent, felt that the trial court had rejected the taxpayer’s expert and therefore erred in relying upon that expert opinion to show erroneousness of the assessment.

Virginia Supreme Court Summary

Here is the Virginia Supreme Court’s summary of the case opinion:

091590 County of Albemarle v. Keswick Club 09/16/2010 On remand from a prior appeal, the circuit court’s reduction of an assessment for a private recreational club for two tax years was not reversible error. The circuit court’s ruling as to the proper value for the taxpayer’s property is not erroneous because it is not plainly wrong or without evidence to support it and, pursuant to Code § 58.1-3987, a circuit court may fix the assessment in accordance with the evidence. Any error in admission of certain contested evidence was harmless. The judgment is affirmed.

Arogas v. Frederick County BZA deals with a proffer amendment made by the Board of Supervisors at the meeting but after the public hearing, and agreed to in writing by the landowner after the date of the public hearing. The petitioner argued that the proffer amendment was void because it was made after the date of the public hearing and without a new public hearing. The Supreme Court disagreed, saying that Virginia Code section 15.2-2285(C) and its local ordinance counterpart authorizes a governing body to make “appropriate changes or corrections in the [zoning] ordinance or proposed amendment” after the public hearing.

I note that to support the Frederick County BZA position, the Local Government Attorneys of Virginia filed an amicus curiae brief, ably prepared by Curt G. Spear, Jr. and Noah B. Klein, Assistant Prince William County Attorneys.

Other than a passing mention in footnote 3, the Court did not address (because the public hearing in this case was held back in 2004), the 2006 amendment of Virginia Code section 15.2-2297, 15.2-2298 and 15.2-2303 to add the language, “The governing body may also accept amended proffers once the public hearing has begun if the amended proffers do not materially affect the overall proposal.” See 2006 Va Acts of Assembly ch. 450.

Interestingly, since the Arogas opinion says that a later amendment of a proffer is permitted under the general zoning amendment statute, Virginia Code section 15.2-2285(C), the insertion of this language in 2006 allowing amendments after the public hearing if the amendment does not “material affect the overall proposal” may actually limit rather than expand the authority of the governing body to make amendments after the public hearing.

If so, this is appropriate. If an amended proffer materially changes the overall proposal, the applicant should take the time to get the proffered conditions right, and the public certainly would appreciate an opportunity to speak to the materially changed proposal at a public hearing.

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?