Non-Uniform Property Taxation Heading to Supreme Court in September
For those of you out there who are following whether commercial real estate can be taxed at a different rate than residential property, FFW Enterprises v. Fairfax County, et al. has been slated for the Supreme Court's September arguments docket. Like most other states, in the Commonwealth of Virginia the Constitution contains a "Uniformity Clause" which was intended to prevent the General Assembly from allowing the taxation of different classifications of real property in an inequitable manner. Specifically, Article X, Section 1 of the Constitution of Virginia provides:
"...All taxes shall be levied and collected under general laws and shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, except that the General Assembly may provide for differences in the rate of taxation to be imposed upon real estate by a city or town within all or parts of areas added to its territorial limits..."
The core of the dispute is whether Fairfax County may tax only commercial property owners, such as FFW Enterprises, without taxing residential property owners, to fund transportation projects. The General Assembly, through Section 58.1-3221.3 of the Code of Virginia, granted authority to Northern Virginia localities to levy special taxes for transportation projects, and in combination with this authority, Fairfax County created a special tax to fund portions of the Silver Line metro project using Section 33.1-431 of the Code of Virginia. In a nutshell, Fairfax County taxed commercial property owners a special transportation surcharge and exempted residential property owners from having to do so to fund metro improvements.
Last summer, the Circuit Court of Fairfax County (see here for opinion) held that the Uniformity Clause does not prohibit localities from "...provid[ing] for differences in the rate of taxation to be imposed upon real estate..." so long as these differences are not imposed upon the "same class of subjects." However, in 1947 pursuant to City of Hampton v. Ins. Co. of North America, the Supreme Court has already held that the test to determine the constitutionality of such a tax is:
"[Alre there others, who are benefited as much or more than those smarting under the tax imposition, who go unwhipped of its burden?"
FFW Enterprises plead just that, asserting that residential property owners will benefit as much from the construction of the Silver Line as commercial property owners in Fairfax, however commercial property owners will bear the sole brunt of the costs and taxes. Nonetheless, the Circuit Court of Fairfax County found FFW Enterprises failed to establish this, and that the 1947 standard is no longer relevant or applicable. These questions will now be put to the Supreme Court in just a few weeks - we'll keep you posted.
We have finally reached the last of the five cases from
Last week, Montgomery County, Maryland passed what has been described as the
For those of you that follow our blog who are familiar with land use planning in Virginia, I'm sure you already know that localities are required by the Code of Virginia to create and adopt a Comprehensive Plan. Typically, a Comprehensive Plan contains a land use plan component, a transportation plan component, various engineering plans, and open space plans, among other things. Makes sense right? It is common sense that localities should plan the build-out of their communities in a logical manner, taking into considerations planned densities and uses, necessary transportation systems, and the infrastructure to support everything.
Back to another of the cases highlighted in 
The study was a holistic review of modern retail policies that would be of value to any urban locality, focusing not just on any one piece of the puzzle, but instead on economic development/jurisdictional competitiveness, urban planning and transit goals, availability of space to both national and local retail businesses, and the cold, hard numbers that are the result of current land use policies in Arlington County. The report concluded that "[r]egional retail destinations, including Tysons Corner, Old Town Alexandria and Georgetown are siphoning sales within a very mobile and competitive market. Whereas Arlington’s land use policies have successfully concentrated development along Metro corridors, our 'retail everywhere' policy - the requirement for first floor retail in nearly all new development - has inadvertently resulted in producing marginal retail spaces in problematic locations...." as well as an overcapacity of retail space. The report provides that "[s]uccessful retail cannot be located just anywhere and everywhere. Retail needs sufficient concentrations and massing to build and benefit from synergies and to attract a solid customer base. Spreading retail away from these concentrated nodes dilutes its ability to work cohesively."
With well over two thousand bills filed for this session, I was curious to see what our local urban delegates and senators have chief-patroned this year. So here's what they're up to:
Wading through the various layers of requirements, enticements, incentives and regulations that apply to green building can be overwhelming to anyone, let alone the uninitiated. This process is made far more complicated by adding the layering of federal, state, and local government efforts in this field.
Andrew McRoberts
Step 1: Create Redevelopment and Housing Authority (the "Authority")