Virginia Supreme Court Opinions Affecting Local Government Law: April 28, June 23, June 30 and July 22, 2016

by Sands Anderson PC

The Virginia Supreme Court issued a number of opinions this Spring and Summer in recent terms.  Its work resulted in several opinions affecting Virginia local (and state) government law, in the areas of Virginia Constitutional Law, taxation of utilities, insurance coverage by the Virginia Association of Counties, grievances within a redevelopment and housing authority, assessment of common areas used for more than just traditional open space, and the legal effect of a subdivision plat waiver on damages in a subsequent condemnation suit by a city.

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

160784 Howell v. McAuliffe 07/22/2016 On petition for writs of mandamus and prohibition brought by the Speaker of the House of Delegates, the Majority Leader of the Senate, and four other Virginia registered voters against the Governor, the Secretary of the Commonwealth, the Virginia Department of Elections, its Commissioner, and the State Board of Elections seeking to cancel voter registrations under the Governor’s executive orders restoring voting rights and removing political disabilities of approximately 206,000 Virginians convicted of felonies, and to prevent further such orders categorically restoring voting rights, each petitioner has standing to challenge the executive orders and the registration of voters authorized in the orders. Code § 24.2-431 does not provide the exclusive remedy for petitioners’ allegations, and the petition is not deficient for failure to join necessary parties; accordingly, the motion to dismiss the petition is denied. On the merits, the executive orders violate Article I, Section 7 and Article II, Section 1 of the Constitution of Virginia, and are unconstitutional. No election official in the Commonwealth may enforce them. The Secretary of the Commonwealth, the State Board of Elections, the Virginia Department of Elections, and their employees, agents, chairpersons, and commissioners, are ordered to take specified actions to satisfy their duties to ensure that only qualified voters are registered to vote. The requested writ of mandamus is issued to that effect; a writ of prohibition is denied.

150617 City of Richmond v. VEPCO 06/30/2016 Code § 58.1-3814(H) does not permit a locality to impose a tax on natural gas consumed for the sole purpose of generating electricity. Thus, the circuit court did not err in rejecting the interpretation of this statute by the City of Richmond in imposing some $ 7.3 million in taxes on a large public utility that utilizes natural gas for that purpose. Omission of the word “power” from the definition of “pipeline distribution companies” in the tax statutes demonstrates that the legislature did not intend present Code provisions to permit localities to impose a tax on natural gas consumed solely for the purpose of generating electricity. The judgment is affirmed.

150930 Commonwealth, DRM v. Va. Ass’n of Counties 06/23/2016 In declaratory judgment actions involving insurance coverage afforded to a pretrial detainee who was injured while in jail custody and sued guards and nurses at a regional jail, for which there are two sources of insurance coverage, the circuit court erred in holding, as a matter of law, that one insurance source provided primary coverage and the other offered only excess coverage. Both provided concurrent primary liability coverage and, as a result, the judgment is reversed in part and affirmed in part. The case is remanded for the circuit court to determine the appropriate pro rata contributions from each insurance source to the costs of defense and indemnification associated with settlement of the underlying liability suit.

150977 Andrews v. Richmond Redev’t & Housing Auth. 06/02/2016 In an employment termination case in which the plaintiff filed a grievance and a hearing officer ordered her reinstatement to employment with a public housing authority, the circuit court lacked subject matter jurisdiction to review that disposition. The housing authority’s grievance procedure is not controlled by Code § 15.2-1507, but instead by the State Grievance Procedure. Provisions of Code § 2.2-3006 make clear that either party may appeal a hearing officer’s decision to circuit court for review on grounds that it is contradictory to law, but no such right is available when the challenge to the decision presents a question whether it is consistent with policy. Here, the authority did not make a prima facie showing for invoking judicial review of the hearing officer’s decision under Code § 2.2-3006(B) because the substance of its appeal challenged only the hearing officer’s interpretation and application of authority’s policies. Consequently, the circuit court did not have subject matter jurisdiction to entertain the authority’s appeal under Code § 2.2-3006 because the statute does not grant the court the authority to review a case or controversy of this nature. The judgment overturning the result of the grievance procedure is reversed and final judgment is entered for the grievant.

151191 Saddlebrook Estates v. City of Suffolk 06/02/2016 In an action by a homeowners’ association to stay judicial sale of a parcel serving as an equestrian center under the plan and declaration of the development, and for declaratory relief, the circuit court erred in ruling that a parcel of a cluster-development subdivision designated as an equestrian center did not fall within the meaning of “open or common space” as defined by Code § 58.1-3284.1 on the ground that it is a commercial enterprise. The statute provides that all real property used for open or common space shall be construed as having no value in itself for assessment purposes. Its only value lies in the value that is attached to the residential or commercial property which has a right by easement, covenant, deed or other interest. The common area is not exempt from taxation but the statute sets the value for assessment purposes as the value the common area provides to the dominant estate (i.e., the lots in the subdivision, which benefit from the easement). This is not the value of the fee of the common area itself, but the value by which access to and use of the common area augments the value of the lots. The first paragraph of Code § 58.1-3284.1(A) then makes the owners of the dominant estate (i.e., the owners of the lots), and only them, liable for the tax assessed on that value in proportion to each owner’s respective lot as a percentage of the whole subdivision. The judgment of the circuit court is reversed, the assessments are vacated, and final judgment is entered for the association.

150328 City of Chesapeake v. Dominion SecurityPlus 04/28/2016 In a condemnation proceeding, a subdivision plat note was a valid contract by which the landowner waived any damages to the residue as the result of the purchase or condemnation of a specified area, and the waiver was broad enough to include loss of visibility and loss of direct access to a roadway. Since the landowner rebuffed the city’s attempts to purchase the property, the waiver applies to acquisition of the property by eminent domain. The condemnation of additional land by the city was not governed by the subdivision plat note waiver, but the landowner failed to present any evidence damages could be apportioned and thus the entire judgment is reversed.

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