Virginia Supreme Court Opinions Affecting Local Government Law: April 17, 2014

by Sands Anderson PC
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The Virginia Supreme Court issued opinions yesterday morning.  After last term issuing no opinions significantly affecting Virginia Local Government Law (at least not in this author’s judgment), this term’s opinions are a virtual feast.  Issues involving BZA discretion, nonconforming signs, FOIA, Fraud Against Taxpayer’s Act and more.  Some are cases involving Virginia local governments, others are cases without local governments as parties, but still involve issues affecting Virginia local governments.  As always, congratulations to the winners!

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

130801 Lamar Co. v. City of Richmond 04/17/2014 In reviewing a challenge to the denial of a zoning variance by a board of zoning appeals, the circuit court incorrectly applied the “fairly debatable” standard of review. That standard is applicable when a governing body acts in a legislative capacity, such as when it adopts a zoning ordinance or grants a special use permit. When considering the decision of a board of zoning appeals to deny a request for a variance, the proper standard of review to apply is that articulated in Code § 15.2-2314 and the city charter. The judgment is reversed and the case is remanded for application of the correct standard.

130934 American Tradition Inst. v. Rector and Visitors 04/17/2014 The circuit court was correct in denying a request for disclosure of certain documents under the Virginia Freedom of Information Act. The purpose of the higher education research exemption under Code § 2.2-3705.4(4) for “information of a proprietary nature” is to avoid competitive harm, not limited to financial matters. The definition of “proprietary” in prior case law, that it is “a right customarily associated with ownership, title, and possession, an interest or a right of one who exercises dominion over a thing or property, of one who manages and controls,” is consistent with that goal and the circuit court did not err in applying that definition. Viewing the facts in the light most favorable to the university that prevailed below, it produced sufficient evidence to meet each of the higher education research exemption’s seven requirements. Also, in the context of the Code § 2.2-3704(F) provision allowing a public entity to make reasonable charges for its actual cost incurred in accessing, duplicating, supplying or searching for requested records, “searching” includes inquiry into whether a disputed document can be released under federal or state law, and this statute permits a public body to charge a reasonable fee for exclusion review. The circuit court’s judgment excluding disputed documents and approving such cost recovery is affirmed, and final judgment is entered in favor of the university.

131064 Lucas v. Woody 04/17/2014 In a suit for personal injuries allegedly incurred during confinement in a city jail, the one-year statute of limitations in Code § 8.01-243.2 governing causes of action related to conditions of confinement in a state or local correctional facility is applicable – regardless of whether the plaintiff is still incarcerated when such action is filed. Thus, the circuit court did not err in finding that this plaintiff’s state law claims, set forth in a complaint filed 16 months after her release from jail, were barred by that statute of limitations. Nor did the court abuse its discretion in refusing to grant leave for plaintiff to file a second amended complaint, which sought to reassert state law claims that the court had properly dismissed pursuant to pleas in bar. The judgment of the circuit court is affirmed.

131235 Lamar Co. v. City of Richmond 04/17/2014 In consolidated proceedings arising from a declaratory judgment action brought by landowners and a billboard advertising company challenging a city’s enforcement proceedings to require removal of a billboard or reduction in its height to a conforming level under applicable ordinances, the circuit court erred in holding that the 15-year non-conforming use provision of Code § 15.2-2307 is “merely enabling” legislation and in granting the defendant city’s demurrer on that basis. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. Combined case with Record No. 131249

131249 Shaia v. City of Richmond 04/17/2014 In consolidated proceedings arising from a declaratory judgment action brought by landowners and a billboard advertising company challenging a city’s enforcement proceedings to require removal of a billboard or reduction in its height to a conforming level under applicable ordinances, the circuit court erred in holding that the 15-year non-conforming use provision of Code § 15.2-2307 is “merely enabling” legislation and in granting the defendant city’s demurrer on that basis. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. Combined case with Record No. 131235

131308 Lewis v. City of Alexandria 04/17/2014 In a wrongful termination action against a Virginia city under Code § 8.01-216.8, the anti-retaliation provision of the Virginia Fraud Against Taxpayers Act, after approving an award of back pay, additional liquidated damages doubling that award, recovery of lost vacation pay, as well as over $240,000 in attorney’s fees, the circuit court did not abuse its discretion in declining to award reinstatement, front pay and/or additional compensation for lost pension benefits. The judgment is affirmed.

130239 VMRC v. Chincoteague Inn 04/17/2014 In an appeal considering whether the Virginia Marine Resources Commission lacked authority to order removal of a floating platform that a restaurant operator had situated partially over state-owned subaqueous bottomlands, securing it alongside its premises for purposes of expanded restaurant operations, without a permit or statutory exception authorizing such action in violation of Code § 28.2-1203(A), such use of the platform was not protected by the Constitution of Virginia as a public right inherent to the jus publicum. The Court of Appeals erred in interpreting the scope of the Commission’s authority under Code § 28.2-1203(A), and the case is remanded for resolution of all remaining issues, including whether application of Code § 28.2-1203(A) to the floating platform is preempted by federal maritime law.

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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