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To what does the term "locality" refer?
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To cities, towns, and counties
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What is a municipal corporation?
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Also called a municipality.
It includes cities and towns but not counties.
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What are counties?
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Counties are subdivisions of state government and they offer a variety of services to their residents
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What are cities, towns, and other municipal corporations?
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They are corporations created to serve the interests and needs of particular populated areas
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How is a city created?
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-It must have a population of 5,000 or more citizens
-Must be incorporated by a CHARTER
-Provide a wide range of services to its citizens
Note: they are completely independent of counties
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What is a town and how is it established?
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-More limited incorporated communities
-Population of 1,000 or more
-Not independent from towns
-No taxing powers but no responsibilities
-Cities can apply for permission to revert to town status
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How do localities get power?
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-NO INHERENT POWERS
-Must be expressly provided in the legislatively enacted charter for the locality or in general statutes conferring powers on localities in VA
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What does a locality's charter look like? What 6 powers do charters generally contain?
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All are different but most have the following powers:
1) Sue and be sued
2) Enter into contracts
3) Acquire, hold, dispose of revenue
4) Exercise eminent domain
5) Borrow money and issue tax-exempt bonds
6) Acquire, hold, and dispose of property
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What do most localities have in common? |
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May localities delegate their powers?
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GR: no.
EX: narrow execption allows them to use administration but not set policy
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What is "Dillon's Rule"?
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It states that a locality can exercise only those powers expressly given by statute and those necessarily implied in or incident to the express powers unless it's essential to the declared purpose for setting up a locality
-No implied powers
-With express powers, some zone of reasonable choice
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Does Virginia adhere to "Dillon's Rule"?
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Yes, strictly.
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How do localities incur debt?
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-Generally issue bonds through an election or special hearing
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What may bonds be used for?
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Only capital expenditures (except revenue anticipation bonds)
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Is there a limit on the amount of debt a locality may incur?
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GR: yes - 10%
With a few exceptions
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What are the exceptions to the 10% debt rule?
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The following are not subject to the 10% rule:
1) Revenue anticipation bonds (will be paid back from expected taxes already in place within one year)
2) Special fund bonds (paid down in 5 years and directly from the project to be funded)
3) projects where the debt will be paid by levying assessments on the property
4) debst from civil and criminal judgments against the locality
5) debts from daily operating expenses (ordering supplies, etc.)
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How broad is the locality's police power?
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Almost unlimited power to regulate the health, safety, morals, and welfare of its citizens but must pass constitutional muster
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May localities levy taxes?
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Yes, for public purposes.
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What kinds of taxes may localities levy?
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-Property taxes, sales tax, etc.
-MAY NOT IMPOSE A SALES TAX
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Do localities have the power to require licensing?
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Yes and licenses may be tied to revenues (income) but it's considered distinct from an income tax
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What are ordinances?
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-Legislative acts of the locality
-Same effect as statutes
-Usually misdemeanors and must have notice
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What are the three requirements of a valid ordinance?
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1) Prior published notice to alert residents who will be affected,
2) Majority vote at a public meeting, AND
3) Ordinance is reasonably certain--NOT VAGUE
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Who bears the burden of proving an ordinance's invalidity?
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-The challenger
-Ordinances presumed valid
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How can an ordinance be challenged?
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-Can be raised as a defense to a violation charge, AND
-Can file a complaint seeking declaratory judgment
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On what grounds may an ordinance be invalidated?
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1) Not enacted properly
2) Unconstitutionally vague
3) Arbitrary and discriminatory
4) Beyond the powers of the locality
5) Preempted by federal or state law
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What are the grounds under which the state may preempt local law?
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What are the grounds under which the state may preempt local law?
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What are four situations to analyze when considering whether local law is inconsistent with state law and the results of such analysis?
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"1) State prohibition of the activity; if state prohibits--it's prohibited (e.g., local legalization)
2) State authorization of the activity; if the state authorizes--it's legal (e.g., subdivisions)
3) State law is silent; where state is silent, ordinance may regulate or prohibit
4) Some state regulation; where state law REGULATES a topic, ordinances may also regulate so long as they're not inconsistent with state law (true even if state law regs extensively)"
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Where state law restricts an activity, may ordinances also regulate that activity?
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"Yes, so long as local restriction is more restrictive.
KEY INQUIRY: can a person comply with both the state law and local ordinance simultaneously (e.g., motorcycle helmet and kevlar jacket)"
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Can state principles oust local ordinances?
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"1) Only state ""principles"" that have the force of law can oust local regulation (e.g., statutes and regulations)
2) Mere recommendations or ""best practices"" cannot oust local ordinances"
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What is zoning? Do localities have the power to control zoning?
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Zoning is the regulation of land use and localities have the police power to regulate.
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What is the significance of a "comprehensive plan"?
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Comprehensive plans lay out zoning ordinances and contain a map of growth areas designated. Localities must update them every 5 years.
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What is a "zoning administrator" and what do they do?
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Zoning administrators administer the regulatory scheme and work as zoning enforcement officers byt issuing violation notices and prosecuting noncompliance.
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What is a "board of zoning appeals" (BZA) and what dio they do?
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A BZA is a quasi-judicial body set up by a locality to interpret zoning ordinances, rule on appeals, and grant variances and special use permits.
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What is the difference between a variance and a special use permit?
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"-Both are exceptions from zoning ordinances
-Variances allow noncompliance with zoning ordinances
-Special use permits allow a landowner to conduct an activity not generally permitted (don't see the difference here???)"
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What is the process of appealing to the Board of Zoning Appeals? Timing?
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"-Notice of appeal must be given to the BZA within 30 days after the decision
-Appeals can be taken from aggrieved persons or officers/departments affected by a zoning decision
-Tricky part is determining when exactly a zoning administrator made a ""decision"" (sending various letters, etc. -- no bright line rule)"
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What must an applicant for a variance show?
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"1) strict enforcement would result in unnecessary hardship approaching confiscation not shared by other properties in the zoning district
2) granting the variance will not be substantially detrimental to adjacent property or the character of the district"
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Are variances given lightly/freely?
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NO. Virginia will almost never grant variances. Unless the zoning denies an owner of all possible uses of the land, applicant will likely lose.
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If a person's application for a development project is not granted, what is another alternative? What must accompany the request?
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An applicant may seek a "conditional use permit" and submit proffers of conditions. (can include self-restrictions, promises to build parks, etc)
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Is zoning optional or mandatory?
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Zoning is optional but localities MUST regulate subdivisions
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If a current use of a lot, activity, or sign pre-existed a current zoning ordinance but does not meet the current standard, its use can be __________.
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Grandfathered. Its non-conforming use can be continued but not enlarged or structurally altered.
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How can a grandfathered use be cancelled?
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Through two years of disuse, it will be treated as abandoned. If the sign/etc. is destroyed, it cannot be rebuilt.
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Are nonconforming uses disfavored?
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Yes, so any grounds for terminating them will be pursued.
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What is a "vested right"?
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There is almost no such thing as a vested right in Virginia with one narrow exception for investment in reliance on government action.
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What must a person show to have a "vested right" recognized?
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1) locality makes a "significant affirmative act" supporting a planned use of the property,
2) landowner relies in good faith on that governmental act, and
3) landowner incurs extensive obligations or substantial expenses in pursuit of that specific project
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What can a party do after losing in a BZA decision?
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Appeal to the Circuit Court for review within 30 days of the BZA decision.
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What is the process of appealing a BZA decision?
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1) File a petition in the Circuit Court within 30 days after the BZA decision
2) Court can review the record or take new testimony if necessary
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What are the grounds for granting a writ of cert for BZA appeals?
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1) Petitioner can show BZA applied erroneous principles of law or was plainly wrong in interpreting the purpose/intent of the zoning law, OR
2) Petitioner can show that the decision was in error as to (a) any factfinding, or (b) the sufficiency of the facts
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What is the burden of proof on a party in a BZA appeal to the Circuit Court?
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Preponderance of the evidence.
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What is the standard of review on spot zoning issues?
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1) presumed that the zoning was appropriate
2) party can defeat that presumption by showing the zoning was incorrect, the area hasn't really changed, etc.
3) the matter need only be "fairly debatable" (some evidence) for the spot zoning to be upheld
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What is spot zoning?
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Imposing more restrictive zoning on one or two parcels
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Can parties appeal a Circuit Court zoning decision?
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Yes, to the Virginia SUpreme Court.
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