Fairly Debatable Standard Upheld: Town of Leesburg v Giordano

by Sands Anderson PC
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In Town of Leesburg v Giordano, the Virginia Supreme Court faced clearly-settled law but an interesting argument. And, as can happen in such cases, it resulted in a well-reasoned majority opinion and a strongly-worded dissent. The opinion was issued on November 4, 2010.

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?

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