Virginia Real Estate, Land Use & Construction Law : Virginia Construction Lawyers & Attorneys : Bean Kinney & Korman Law Firm : VA Real Estate, Land Use & Zoning

With the General Assembly set to convene and prefiling ending on January 13th, I thought it would be worth while to take a look at the legislative proposals submitted thus far to see if anything  jumped out at me this year from the land use side of things.  Suprisingly, this session looks kind of light so far (everyone must be focusing on the budget bills...).

From the local government side, it looks like HB 33 proposes requiring additional disclosures by local governments when seeking bond approvals from voters.  It appears the idea is that public notices would have to include not only the amount of debt to be assumed, but now also the anticipated number of years to amortize and the total debt service payable on the principal amount of the bonds proposed to be issued.  More information for voters - how can you vote against this one?

Also, HB 51 proposes to allow localities' governing bodies the option to prepare their own amendments to comprehensive plans rather than having to request the local planning commission to do so.  HJ 11 proposes the necessary constitutional amendment to allow localities to establish their own income or financial worth limitations for granting local property tax relief to seniors (65 year-olds) and permanently disabled individuals.

On the transportation side, it looks like this will be a season of transportation reform.  The big one, HJ 5, according to LIS, proposes an amendment to the Constitution of Virginia to require the General Assembly to maintain permanent and separate Transportation Funds, that revenues dedicated to Transportation Funds actually have to be deposited into the Transportation Funds, and limits the use of Transportation Funds to only transportation related purposes, unless the General Assembly secures a 2/3 plus one majority to borrow from the Transportation Funds.  Borrowed funds would have to be repayed, with interest, within a specified period of time.

Transportation programs are also proposed to now be subject to performance audits by the Auditor of Public Accounts per HB 42.  These audits would include cost saving assessments, and organizational structure/efficiency and effectiveness analysis of transportation agencies by private management consulting firms.

Also, HB 25 proposes to amend the requirements of the Statewide Transportation Plan, and for evaluation of selection of transportation improvement projects, to include as an objective identifying quantifiable measures and achievable goals relating to reduce greenhouse gas emissions.  HB 55 puts forward limiting assessments on localities for VRE service to no more than a locality collects through its motor vehicle fuel sales tax while HB 19 attempts to allow the Potomac-Rappahannock Transportation Commission to charge higher fares to VRE passengers from localities who are not that are not embraced by the Potomac-Rappahannock Transportation District.

And finally, from the conflicts of interest camp, members of the General Assembly, per SB 4, would have to disclose any money paid to him/her, or immediate family, in excess of $10,000 by a state or local government or advisory agency.  Former Section 30-111 explicitly allowed members and their family members to exclude what they were paid by various governmental agencies/commissions on their Statement of Economic Interest conflict of interest disclosure form.  I wonder why?

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Step 1:  Create Redevelopment and Housing Authority (the "Authority")

Step 2:  Authority  identifies areas of city that it wants to designate as a "blight"

Step 3:  Authority creates a Master Redevelopment Plan for areas of city it has determined are blighted

Step 4:  Authority uses public funds to condemn all the privately owned land in redevelopment area where private property owners are unwilling to sell to the Authority at the Authority's price

Step 5:  Authority sells some of the land obtained from private citizens to private entrepreneurs for sums it deems appropriate, holds surplus land in inventory for no specifically identified public purpose

Apparently, this is the basic recipe Roanoke has been following in pursuit of a 110 acre redevelopment area created for Carilion's Riverside Center business and medical park complex.  This case is boiling again because the Roanoke Redevelopment and Housing Authority, whose board consists of 7 members appointed by the Roanoke City Council, condemned and took land from a private property owner that was not was not a blight and was not wanted by the private interests undertaking the redevelopment of the area; this private property was simply located within the area designated by the Roanoke Redevelopment and Housing Authority's Master Redevelopment Plan area.  In short, private property was taken by governmental authority for no specific public purpose, except that the City apparently did not like its use (a flooring business) and wanted to see it redeveloped at some time in the future, and then the land was to be held in inventory until the City decides how it intends to use it.

This raises some pretty interesting questions, doesn't it?  The government takes extensive areas of land from private property owners for no specific public purposes, entrepreneurs lobby the government to acquire the land for private use (or vice versa), and the government sells the land to private interests of their choice in order to achieve their vision of economic redevelopment of an area.  Without the authority to do this, localities will claim they have little ability to achieve badly needed, large-scale revitalization objectives in blighted areas.  With this authority, localities have the capability to take private property owned by one party and give it to another private party that the locality deems more favorable.

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The Supreme Court of Virginia recently accepted a Petition for Appeal by forty citizens of Gloucester County who were hit with sanctions for circulating a petition for signatures and filing the petition with the Circuit Court for Gloucester County to have some members of the Board of Supervisors removed by the Circuit Court.  These citizens circulated the petition per § 24.2-233 of the Code of Virginia, gaining over six thousand signatures, after a grand jury indictment of certain members of the Board of Supervisors.  After appointment of a special prosecutor, the trial court nonsuited the petition proceedings, ordered Gloucester County to pay for the legal fees incurred by the Board of Supervisors, and then imposed two thousand dollar sanctions on each of the forty citizens who circulated the petition. 

According to the facts set forth in the Petition for Appeal, two new members were elected to the Gloucester County Board of Supervisors in 2007, providing one voting bloc with a new majority of votes.  Among other things, upon being sworn in the members of this new controlling voting block promptly announced the termination of the then current County Administrator and the County Attorney.  This was apparently not discussed with the minority Board members, or announced to the public prior to their action to do so.  Upon learning this, the Commonwealth's Attorney for the county began an investigation and a grand jury was ultimately convened, which returned criminal indictments for the four Board members.

Generally speaking, § 24.2-233 provides a procedural avenue for citizens to have elected officials removed from office by the local circuit court for misuse of public office.  However, until July 1 of this year, § 24.2-238 did not have a Subsection B, which now explicitly prohibits the imposition of the aforementioned sanctions.  While there are several other arguments that have been made why sanctions should not be imposed, the Petition for Appeal begs the general question whether the judicial branch may impose sanctions on citizens who organize and petition the government where sanctions are not expressly statutorily prohibited.  What does Virginia want to discourage more: arguably wasteful and distasteful mass petitioning movements or the judicial branch's authority to suppress such petitions?

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