LOCAL GOVERNMENT LAW Fall 2018 Syllabus Instructor: Chris Costa Telephone: (202) 724-9733 Email: chcosta99@gmail.com Class hours: 8:00 p.m. 9:50 p.m. Mondays. We will not meet on August 20, 2018. Therefore, the first day of class is August 27, 2018. The last day of this course will be November 26, 2018. Required Textbook and Readings: Richard Briffault & Laurie Reynolds, Cases and Materials on State and Local Government Law (8th ed. West 2016). Additional case decisions to be accessed on Westlaw, Lexis, or on the respective court s website. I expect to modify assignments in class or by email. Course Focus: This course will focus on understanding Virginia state and local government law by comparing it with cases and legislation from other states. As the text book s title suggests, a study of local government law includes the state and federal laws that define local government power. The reading listed here will be modified because, among other reasons, new cases are handed down and new legislation is enacted. I approach this subject from a practitioner s perspective, and class attendance is imperative to understand the material. Office Hours: Barring unforeseen circumstances, I will be available after each class or by appointment. Appointments can be made by email, telephone, or by just asking before or after class. Grading: 100% of the grade will be a final exam, provided that I might adjust a grade to the next higher or lower grade (for example, a B to a B+ or an A- to a B+) based on class participation and attendance in accordance with any applicable school policy. First Assignment: Textbook pages 1-29 up to, but not including, the excerpt of the article by Charles M. Tiebout. Future discussions: The following is the tentative schedule. Please be aware that this will be modified, so do not read ahead. August: 20 NO CLASS. (Making up this time will be discussed in class.) 27 Introduction to the Law Governing State and Local Government; Why Do the People Want or Need Separate State and Local Governments? Reading: Textbook pp. 1-29 1
27 (continued) Constitutional Status of Local Governments: Text book pages: 73-83 (stop before Gomillion), 124-136 (stop before Milliken), and 169 (starting at Kessler) to 186 September: 3 LABOR DAY NO CLASS 10 Scope of State and Local Power and Mechanics of State Constitutions: I. State-Local Relations: Pages 289-292 stopping just before Section B II. State Constitutional Bans on Special Legislation: Pages 299-314 starting at Section 2 (The Ban on Special Legislation) BUT NOT Notes 1 or 4 or any part of the Emerald Isle case. Look over the following portions of the Virginia Constitution: Article IV, Section 14, subparagraphs (4), (7), (8), (9), and (10) (which identify certain limitations on the General Assembly's legislative powers). III. Dillon's Rule: Pages 327-338 and Note 1 on Page 344 (starting at Section C; please do not read the Hutchinson case). Advanced Towing Co., LLC v. Fairfax Cnty. Bd. of Sup'rs, 280 Va. 187, 694 S.E.2d 621 (2010). The following sections of the Virginia Constitution: Article VII, Sections 1, 3, 4, 5, and 7. 17 Scope of State and Local Power (continued); Preemption, and Other Limitations: I. Home Rule: Pages 346-364 (No need to read Note 1 or the City of Santa Fe case; please read the remaining notes to the end on page 364). II. Preemption of Local Regulation by State: Pages 432-439 (Not the Ibarra case) starting at Section D. to p. 414 stopping just before City of Northglen v. Ibarra, Pages 464-487, please read the Notes 1, BUT NOT Note 6 on Pages 471-474 or Note 3 on Pages 483-485. In addition, on the topic of preemption, please read: King v. Arlington Cnty., 195 Va. 1084, 81 S.E.2d 587 (1954). Bd. of Sup'rs of Loudoun Cnty. v. Pumphrey, 221 Va. 205, 206, 269 S.E.2d 361, 362 (1980). City of Norfolk v. Tiny House, Inc., 222 Va. 414, 421, 281 S.E.2d 836, 840 (1981). 2
24 Interlocal (Multi-Jurisdictional) Relations and Regional Governance: Page 501-510 (starting at the Notes on page 501). Pages 584-592 (starting at Note 3 on Page 584 and stopping just before the Board of Education of Town of Boonton case). Pages 596-599(only Notes 1, 4, 5, and 6). Pages 613-619 (stopping just before the Seto case). Pages 621-624 (only Notes 1, 2, and 3 (we will discuss neither the Seto case nor the questions in these notes about that case.)). Pages 631-639 (starting at Section 2 entitled Creating a Multi-Purpose Regional Structure and ending at Note 5 (Note 6 is not assigned)). October: 1 Enactment of Ordinances (parenthetical statements help explain what our focus will be): Va. Code 15.2-1425, 15.2-1426, 15.2-1427, and 15.2-1428. If you prefer, a public, unannotated version of the Virginia Code is at this link: https://law.lis.virginia.gov/vacode. Va. Code 15.2-2204 (relating to ordinances that address land use planning and zoning) and 15.2-2286(A)(7) (relating to the amendment or repeal of zoning ordinances). And the following four cases related to the enactment of ordinances: o Glazebrook v. Board of Sup rs of Spotsylvania County, 266 Va. 550, 587 S.E.2d 589 (2003). o Gas Mart Corp. v. Board of Sup rs of Loudoun County, 269 Va. 334, 611 S.E.2d 340 (2005). o Ace Temporaries, Inc. v. City Council of City of Alexandria, 274 Va. 461, 649 S.E.2d 688 (2007). o Arogas, Inc. v. Frederick County Bd. of Zoning Appeals, 280 Va. 221, 698 S.E.2d 908 (2010) (As we will discuss in more detail this semester, a rezoning is a legislative act of a governing body to amend the zoning ordinance with regard to a particular lot or collection of lots; a property owner can offer to mitigate the impact of the rezoning on the surrounding community by making proffers, which are voluntary offers from the property owner to the locality that is considering a rezoning). 8 COLUMBUS DAY CLASS MOVED TO OCT. 9. 3
9 Interpretation of Ordinances: o Town of Leesburg v. Giordano, 280 Va. 597, 701 S.E.2d 783 (2010) (explaining the fairly debatable standard to review legislative action). o Tazewell County School Board v. Brown, 267 Va. 150, 591 S.E.2d 671 (2004) (explaining the great weight given to public officials construction of a statute; considering an Attorney General s Opinion in statutory construction). o Nielsen Co. (US), LLC v. County Bd. Of Arlington County, 289 Va. 79, 767 S.E.2d 1 (2015) (clarifying the difference between deference and great weight; construction of statutes that impose taxes; and the cannon of plain meaning ). o Board of Sup rs of James City County v. Windmill Meadows, LLC, 287 Va. 170, 752 S.E.2d 837 (2014) (explaining the retroactive application of statutes that regulate localities). 15 Enforcement of Ordinances: o City of Richmond v. Hayes, 212 Va. 428, 184 S.E.2d 784 (1971) (discussing when a writ of mandamus lies). o WTAR Radio-TV Corp. v. City Council of City of Virginia Beach, 216 Va. 892, 223 S.E.2d 895 (1976) (discussing mandatory and prohibitory injunctions to enforce laws). o Carbaugh v. Salem, 225 Va. 310, 302 S.E.2d 33 (1983) (explaining the special rule regarding enjoining future, repeated violations of law). o Rainey v. City of Norfolk, 14 Va. App. 968, 421 S.E.2d 210 (1992) (explaining ex post facto and retroactive legislation; describing the broad array of remedies a court may impose when enforcing an injunction in a contempt proceeding). o Tran v. Gwinn, 262 Va. 572, 554 S.E.2d 63 (2001) (interpreting an ordinance in the face of a constitutional challenge; explaining the specificity required in injunctions). 22 Land Use (Zoning and State and Federal Control): Reading: For comparison, read the Fifth Amendment to the US Constitution and Article 1, Section 11 of the Virginia Constitution (relating to the damaging and taking of property for public use with just compensation). Also, the following four cases; there is no need to prepare the dissenting opinions: Nollan v. California Coastal Com'n, 483 U.S. 825, 107 S.Ct. 3141 (1987); Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309 (1994); Koontz v. St. Johns River Water Management Dist., 133 S.Ct. 2586 (2013); and Cupp v. Board of Supr's of Fairfax County, 227 Va. 580, 318 S.E.2d 407 (1984). 4
29 Land Use; Eminent Domain and Inverse Condemnation; Acquisition and Disposal of Property (continued): Livingston v. Va. Dept. of Transportation, 284 Va. 140, 726 S.E.2d 264 (2012); and Richmeade L.P. v. City of Richmond, 267 Va. 598, 594 S.E.2d 606 (2004). November: 5 Tort Liability; Sovereign Immunity; Claims Procedures: I. Tort Liability: In the Textbook Section B Tort Liability, pp. 1019-1021 and p. 1033-1040 BUT NOT Note 5. Virginia Code 15.2-209 (procedure for notice of tort claims against local governments) and the following cases: Nelson County v. Coleman, 126 Va. 275 (1919); Bialk v. City of Hampton, 242 Va. 56 (1991); Woods v. Town of Marion, 245 Va. 44 (1993); Messina v. Burden, 228 Va. 301 (1984); and Seabolt v. Cnty. of Albemarle, 283 Va. 717 (2012). 12 Tort Liability; Sovereign Immunity; Claims Procedures (continued): I. The current versions of the following sections of the Virginia Code (claims procedures against counties) and the following cases (NOTE: the cases cite earlier code section numbers that contained essentially the same statutory language): Va. Code 15.2-1243 through and including 15.2-1249; Viking Enter., Inc. v. Cnty. of Chesterfield, 277 Va. 104, 670 S.E.2d 741 (2009); Nuckols v. Moore, 234 Va. 478, 362 S.E.2d 715 (1987); Dominion Chevrolet Co. v. Henrico Cnty., 217 Va. 243, 228 S.E.2d 131 (1976); Stamie E. Lyttle Co. v. Hanover Cnty., 231 Va. 21, 341 S.E.2d 174 (1986); Parker v. Prince William Cnty., 198 Va. 231, 93 S.E.2d 136 (1956) (please be prepared to discuss whether this case involves an action in tort or other action; please be prepared to discuss whether the plaintiff should have used the above noted statutes or the procedure in Va. Code Section 15.2-209); Va. Code 15.2-2604; and Opinion of the Attorney General issued September 28, 2012, (Opinion No. 12-029) (found at 2012 WL 4754009). 19 Formation and Structure of Local Governments: 5
19 (continued) Reading: I. Municipal Incorporation: Text book page 206-207 (Just the introduction, not White v. Lorings) Bennett v. Garrett, 132 Va. 397, 112 S.E. 772 (1922) (Do not focus on the evidentiary issues; focus on the Court's general explanation of when incorporation should occur.) Notes at pp. 209-212 and 219-222 II. Annexation: Text book pp. 222-224 (not the City of Jackson, Mississippi case) and Note No. 6 on p. 234 Please read the 3 following cases and focus on the second one (Rockingham County) analyzing annexation: 1. Fairfax County v. Town of Fairfax, 201 Va. 362, 111 S.E. 2d 428 (1959); 2. Rockingham County v. City of Harrisonburg, 224 Va. 62, 294 S.E. 2d 825 (1982); and 3. City of Hopewell v. County of Prince George, 240 Va. 306, 397 S.E. 2d 793 (1990). III. Authority as a valid political subdivision: Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E. 2d 732 (1940). 26 The State Budget Process; Lobbying; and Federal, State, and Local Interaction: Articles for the reading will be handed out prior to this class, and there may be a guest speaker. End of Course Review and Exam Discussion 6