Virginia Supreme Court Opinions Affecting Local Government Law: December 2016 and March, April, June, and August 2017

by Sands Anderson PC

Sands Anderson PC

Happy Fall!

The Virginia Supreme Court issued a number of opinions since my last update affecting local government law.  Its work resulted in opinions addressing:

  1. A city’s disability retirement benefits,
  2. Production of Standards of Learning-related student scores from a local county school division,
  3. Vested rights under Va. Code § 15.2-2311(C) due to zoning administrator error,
  4. Exemption of local BPOL tax under the federal Import-Export Clause of the Constitution of the United States, Article I, § 10, cl. 2,
  5. Who is custodian of court records under the Virginia FOIA,
  6. Where to find the line is between torts and inverse condemnation,
  7. Issues arising from wrongful termination of a town employee,
  8. Who has standing to oppose changes to a school division’s anti-discrimination and anti-harassment policy,
  9. Exemption from local personal property taxes of internet set top boxes as intangible personal property under Va. Code § 58.1-1101(A)(2a),
  10. Appeals from a decision of the BZA under Va. Code § 15.2-2314 to review a board of zoning appeals,
  11. Transfer of development rights under Va. Code § 15.2-2316.2, and
  12. Machinery and tools tax assessments.

That’s quite a bit of local government law made in the past 10 months!

The case summaries are taken from the Virginia Supreme Court opinions website. Click on the case number to read the opinion.

160979 City of Danville v. Garrett 08/31/2017   The circuit court erred by applying Code § 51.1-813 to determine the amount of disability benefits a city and its retirement system are obligated to pay a disabled former police officer. Under Code §§ 51.1-819 and -820 Article 2 of Title 51.1 of the Code of Virginia does not apply to localities, other than those counties having a county manager plan of government, unless a locality adopts the provisions of Article 2 by vote of its governing body in the manner described in Code § 51.1-819. In this case, it is undisputed that the city never passed a resolution adopting those provisions, and thus Code § 51.1-813 does not apply to the city. The circuit court erred in ordering the city and its retirement system to make payments to plaintiff pursuant to Code § 51.1-813, and in increasing the amount of plaintiff’s disability benefits paid by the city and its retirement system pursuant to local ordinances. The judgment is reversed and final judgment is entered on this appeal for the city.

161031 Loudoun Cty. School Board v. Davison 08/31/2017 Judgment in favor of a mandamus petitioner seeking production of Standards of Learning-related student growth percentile scores from a local county school division is reversed. Under Code §22.1-295.1(C), the word “used” refers solely to “other data” and not to “teacher performance indicators.” The information in the student growth percentile scores are teacher performance indicators and disclose identifiable teacher information, including teacher names and license numbers. This information requested by petitioner is confidential pursuant to Code §22.1-295.1(C) and the circuit court erred in ordering production of documents containing teachers’ identifiable information. The judgment is reversed and the issue of any attorney fee recovery is remanded to the circuit court. Combined case with Record Nos. 161017 and 161025  161017

Va. Education Assn. v. Davison (Corrected) 08/31/2017 Combined case with Record Nos. 161025 and 1161031   [See opinion summary above.]

161025 Va. Dep’t. of Educ. v. Davison 08/31/2017 Combined case with Record Nos. 161017 and 161031  [See opinion summary above.]

161209 Board of Supervisors v. Rhoads (Corrected) 08/31/2017 In an appeal pursuant to Code to Code § 15.2-2314 from an adverse decision by a local board of zoning appeals, the circuit court did not err in applying Code § 15.2-231l(C) and ruling that property owners had a vested right to the use of their property in violation of a zoning ordinance, when more than 60 days elapsed after a zoning administrator issued a determination which allowed that use, and the property owners had relied upon that determination and materially changed their position to their financial detriment. The property owners’ rights in using their property in the manner initially approved by the zoning administrator vested upon fulfillment of the requirements of Code § 15.2-2311(C), and were not subject to alteration by a successor zoning administrator, the board of zoning appeals, or the board of supervisors. Therefore, the circuit court did not err in applying Code § 15.2-2311(C) to uphold the property owners’ vested rights to use their property in the manner originally approved by the zoning administrator. The judgments of the circuit court are affirmed.

160939 Dulles Duty Free v. County of Loudoun 08/24/2017 Upon review of an airport-based “duty free” seller’s challenge to a county’s imposition of a Business, Professional, and Occupational License tax on a substantial portion of its sales – made to departing passengers as they board flights bound for destinations outside the United States – the Import-Export Clause of the Constitution of the United States, Article I, § 10, cl. 2, bars the county from imposing the tax on these sales. The judgment of the circuit court is reversed and the matter is remanded for calculation of the refund due to the taxpayer.

160889 The Daily Press v. Office of Exec. Secretary 06/29/2017 Under Virginia statutes, the clerks of court are the designated custodians of court records. Therefore, under the Virginia Freedom of Information Act, a party requesting copies of court records must ask each jurisdiction’s clerk of court for certain court records, rather than seeking to obtain a copy of a database in the Office of the Executive Secretary of the Supreme Court of Virginia. The judgment of the circuit court denying enforcement of an FOIA request directed to the Office of the Executive Secretary is affirmed.

160221 AGCS Marine Ins. v. Arlington County (Corrected) 06/15/2017 In an inverse condemnation action brought by two insurers who paid property damage claims for a grocery store and became subrogated to those claims, the circuit court did not err in concluding that the complaint against a county, as originally pled, failed to state a claim. The original complaint sounded wholly in tort and did not state a prima facie cause of action for inverse condemnation. However, the circuit court erred in denying the insurers’ motion for leave to amend, since the allegations in the proffered amended complaint, coupled with the reasonable inferences arising from these allegations, state a legally viable claim for inverse condemnation. The judgment is affirmed in part, reversed in part, and the action is remanded for further proceedings in light of this opinion.

160813 Hale v. Town of Warrenton (ORDER) (Corrected) 04/20/2017 In a wrongful termination action converted to an application for writ of mandamus for reappointment to a position with the defendant town, the circuit court erred in sustaining the town’s demurrer. The factual allegations, viewed in the light most favorable to the plaintiff at the demurrer stage, supported the reasonable inference that the Town Manager’s actions in hiring the plaintiff as the sole building official for the town on a full-time basis — subject only to a six-month at-will, probationary period — could be construed as a permanent appointment upon the expiration of that probationary status. The circuit court thus erred in concluding that plaintiff failed to plead sufficient allegations of material facts to withstand the town’s demurrer. The judgment of the circuit court is reversed, and this case is remanded for trial.

160777 Lafferty v. School Board 04/13/2017 In a declaratory judgment action against a school board involving claims by a student at a public high school, by and through his parents as next friends, alleging distress over potential repercussions from the school board’s expansion of its anti-discrimination and anti-harassment policy, the student lacks standing to seek this relief, and neither his parents, individually, nor a third resident of the county have taxpayer standing. Because the plaintiffs failed to allege an actual controversy sufficient to bring a declaratory judgment action, the trial court did not err in finding that none of the plaintiffs have standing, and they likewise may not recover the injunctive relief requested therein. The judgment of the circuit court dismissing the action is affirmed.

151955 Verizon Online v. Horbal 03/02/2017 In proceedings relating to the collection of personal property tax on television set top boxes used in providing cable television service, for a three-year period, the judgment of the circuit court upholding a determination by the State Tax Commissioner that the set top boxes are not subject to local taxation is affirmed, because these items used in the cable television provider’s business – while tangible in fact – are statutorily defined as intangible personal property not subject to local taxation under Code § 58.1-1101(A)(2a). That portion of the circuit court’s decision finding that the cable service provider was not entitled to recover refunds of taxes for two of the years for failure timely to appeal the decision of the local commissioner of revenue is reversed because that argument was not preserved in arguments before the Tax Commissioner, and thus could not be raised in an appeal thereafter to the circuit court. The judgment is affirmed in part and reversed in part, and the matter is remanded for completion of the refunds. Combined case with Record No. 151956

151956 Horbal v. Verizon Online 03/02/2017 Combined case with Record No. 151955   [See case summary above.]

160202 Boasso America v. Chesapeake 03/02/2017 To initiate a proceeding under Code § 15.2-2314 to review a board of zoning appeals decision, a petitioner must name the necessary parties in the caption of the petition or in the body of the petition, and the petitioner must serve a proper petition within the 30-day window provided by that statute. The governing body for the locality served by the BZA is a necessary party under Code § 15.2-2314, and a litigant may not amend the petition after the 30-day period to belatedly add the necessary parties identified in Code § 15.2-2314. In this case, the judgment of the circuit court, which dismissed a petition for writ of certiorari for failure to name the local governing body in the petition and denied the petitioner leave to amend after the 30-day period had expired, is affirmed.

160246 Johnson v. Arlington County 12/22/2016 The circuit court erred in upholding a county’s taxation of “transferrable development rights,” or TDRs, in their assessment of taxes upon the real estate of two taxpayers. If a county wishes to tax TDRs under Code § 15.2-2316.2(I), it must first enact an ordinance in conformity with the requirements imposed by Code § 15.2-2316.2(B). Here, the county did not establish an ordinance as required by subsection (B). Consequently, it may not rely on subsection (I) of that statute as a basis to tax the TDRs at issue. Code § 15.2-750 and the county’s ordinance contemplate approval of both a “sending” and a “receiving” site for the TDRs, hence there were no taxable interests in TDRs on the present properties until the second of the sites was approved. The judgment is reversed and the case is remanded for further proceedings.

151641 Western Refining Yorktown v. County of York 12/15/2016 In an appeal from a judgment upholding the valuation of a refinery’s machinery and tools for purposes of levying a tax on such property, viewing the evidence in the light most favorable to the county as prevailing party below, and applying the presumption of correctness afforded to determinations of a tax commissioner, the trial court did not err in upholding the assessment. The evidence fails to establish that the tax commissioner overvalued the refinery’s machinery and tools for the two tax years in question, and the commissioner did not ignore the appraisal submitted by the refinery’s expert in reaching the determination, instead rejecting the methodology adopted by that appraiser, concluding it was not a bona fide appraisal. Code § 58.1-3503(B) does not compel a contrary conclusion. Market conditions can reduce the value of machinery and tools, and the fact that for a portion of the year the refinery was idled due to adverse market conditions was a relevant consideration in assessing fair market value, but the refinery did not carry its burden of proving that the refinery was overvalued as of January 1 of each of the contested years. Finally, the county did not assume inconsistent positions in successive litigations, and there was no fatal inconsistency in its appraisals. The judgment is affirmed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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