Local Governments Working Together Since 1905
Legislative Bulletin

January 24, 2007

Bill requires extensive disclosure by local officials in land-use matters

SB 838 (Devolites Davis) requires each governing body member and planning commission member to disclose any business dealings with an applicant or owner of land up for a rezoning or related zoning action, including an amendment to the comprehensive plan.

The bill is overly broad, because it includes reporting the hiring of an attorney or accountant by a local official for a completely unrelated matter (example – filing a commercial lawsuit or handling estate matters) related to the application for a rezoning. These are just examples. Any business transaction, other than buying from a retailer, requires disclosure. The bill would result in violations by honest local officials who simply do not realize that hiring an attorney or having some unrelated business involvement requires disclosure when a rezoning is sought.

The bill will be heard in the Senate Local Government Committee Tuesday afternoon.

Charges for DMV data removed

HB 1930 (Rapp), legislation requested by local governments, exempts federal, state and local officials from fees charged by DMV for obtaining data from DMV records. Local governments use the data to determine eligibility for social service programs, among other things. The House Transportation Committee reported the bill; it passed second reading in the full House.

Eminent domain bills to be heard in subcommittees

The House Courts of Justice Civil Laws Subcommittee will hear all of the eminent domain bills on the afternoon of Jan. 29, one-half hour after the House of Delegates adjourns.

While many of the bills contain selected provisions and concepts that are acceptable to local governments, none of the House bills are considered acceptable as introduced.

The use of eminent domain -- the taking of private land by the government -- erupted as an issue across the nation two years ago following a U.S. Supreme Court opinion in Kelo v. City of New London. The Virginia Housing Commission recommended a consensus bill, designed to preserve eminent domain authority, to the 2006 General Assembly. That bill failed on the final day of the regular session and sentiment against the use of eminent domain remains strong. A Virginia Supreme Court opinion issued in September fueled this sentiment.

Local governments would support a bill this session that merely addressed the perceived problems with the Kelo decision. All of the House bills, however, go well beyond the Kelo decision and attempt to significantly modify the law of eminent domain and unreasonably restrict local government authority.

Please contact members of the House Courts Committee and urge them to support a bill that does nothing more than “fix” Kelo. All other eminent domain issues should be referred to the JLARC study that is being proposed in HJ708 and SJ 404. It is expected that the study would provide more time and be a better forum in which to address the alleged abuses of eminent domain authority.

The Senate Courts of Justice Committee has appointed a special subcommittee to hear all of the Senate bills dealing with eminent domain. The members of the subcommittee are Sen. Thomas K. Norment Jr. (James City), Sen. Kenneth W. Stolle (Virginia Beach), Sen. Richard L. Saslaw (Fairfax) and Sen. Ryan McDougle (Hanover).

Saslaw has introduced SB 1390 on behalf of the coalition of groups (including local governments) supporting a reasoned response to the Kelo decision. Norment has introduced SB 1296 on behalf of the Attorney General, who has been active in the area of eminent domain reform. It is hoped that these two bills could be merged into a compromise bill that would be acceptable to local governments and the members of the coalition. A meeting date for the subcommittee has not been scheduled.

If you have comments or questions on the issue of eminent domain or on any bills that will be considered in the House Courts or Senate Courts Committees, contact Randy Cook at 804/746-3773.

Land use bills remain harmful to local governments

The omnibus House bill on transportation, HB 3202 (Howell) contains four land-use provisions that are all harmful in their current form to local governments, particularly counties. Those same provisions are found in the Senate version, SB 1417 (Norment).

The harmful land use provisions include the following:

A prohibition against VDOT taking new subdivision roads into the state system after July 2007. There is an exception for streets in an urban development area created by the county (description below). HB 3198 (Athey) has the same provisions.

The urban transportation service district provision is limited to counties over 90,000 population. Only if such a county creates the district, can it impose impact fees. If a county imposes this new special tax district, it takes over road construction and maintenance in the district. All taxpayers would be forced to pay an additional tax to pay for road maintenance. Del. Clay Athey’s HB 3197 has the same provisions as a stand-alone bill. The impact fee provision is so limited as to be useless: it applies only to lands zoned for agriculture that has by-right residential uses.

The tax district piece also provides that VDOT will pay counties the urban street maintenance amount plus the difference between the urban rate and the actual costs to VDOT for maintenance today. There is no corresponding funding provision for this. As a result, cities and towns and other counties would receive less money when the pot of money is divided in additional ways.

The tax district piece also limits the power to deny a rezoning for inadequate off-site roads. The problem with this is that the limitation means that all other localities lose this existing authority. The Supreme Court has ruled that localities have the power to deny a rezoning for off-site road problems in the proper circumstances.

The last piece is the obligation for all counties with a 5 percent growth rate to amend the comprehensive plan to provide areas for high-density growth to meet the locality’s needs for the next 20 years, called urban development areas. This provision is a one-size-fits-all provision. Some localities already require higher density than the language of the bill requires. For other localities, the density provisions may not be appropriate. Most significant is the loss of 50 percent of state secondary road allocation if an urban development area isn’t created pursuant to the provisions. Athey has the same language in a separate bill: HB 3196.

The omnibus bills are expected to be stripped of the land use provisions listed above. This is why the three bills noted above were filed – to keep the legislation alive and to unburden the omnibus bills. The transportation-funding piece of the omnibus bills is the most important to most legislators.

Senate committee to vote on teacher, sheriffs deputy retirement bills Jan. 30

Saying that it is time to do something with bills dealing with teacher retirement, Senate Finance Committee Chair John Chichester (Stafford) grouped together a number of bills dealing with increasing the retirement multiplier and increasing the health insurance credit for teachers.

Chichester said that Senate Finance Committee staff would work with the stakeholders over the next week to develop one bill that represented a consensus and that was affordable.

Bills affected include SB 777 (Potts), SB 831 (Devolites Davis), SB 1170 (Stolle), SB 860 (Reynolds) and SB 1218 (Hanger). Last year, an increase in the health insurance credit for teachers passed the House, but failed in the Senate. This year, however, the House Appropriations Subcommittee on Compensation & Retirement sent a number of bills dealing with teacher retirement to JLARC for inclusion in its study on compensation.

The committee also seems poised to pass a bill requiring the extension of enhanced retirement benefits for sheriffs’ deputies. The committee heard a substitute for SB 1166 (Stolle) that mirrors to a great extent the budget amendment submitted by Gov. Tim Kaine in which the state would pay, based on the fiscal stress index, a portion of the costs of putting sheriffs’ deputies under the Law Enforcement Officers Retirement System. A major difference with the governor’s budget amendment, however, is that SB 1166 requires that deputies be covered. The budget amendment does not require participation. Also, the governor’s proposal includes deputies in jail authorities, but it does not appear that SB 1166 does. The substitute will be voted on next week in Senate Finance, probably on Jan. 30.

Senate Finance Committee acts on other retirement issues

The Senate Finance Committee acted on a number of other retirement bills at its Jan. 23 and Jan. 24 meetings, including:

Optional post employment benefits. The committee reported SB 789 (Stosch), which allows political subdivisions to establish trusts to pre-fund post employment benefits, such as medical insurance for retirees. The bill also allows political subdivisions to contract for money management of the fund with VRS or with other entities. The identical House bill, HB 2871 (McEachin) will be heard in House Appropriations Subcommittee on Compensation and Retirement on Thursday afternoon.

Retirement for local elected officials. The bill was sent to the “Taxation Committee,” which does not meet. Therefore the bill is dead. SB 851 (Lambert) would have allowed members of councils and boards of supervisors to participate in VRS.

Credible compensation for teachers advances. The committee reported SB 1087 (Puckett), which includes compensation that teachers receive for coaching and other supplemental activities under the definition of credible compensation. The cost to localities for FY08 is estimated at $4.5 million, and would be reflected in increased retirement contribution rates for teachers beginning in FY08.

School superintendents’ retirement. The committee reported SB 813 (Ruff) that allows school superintendents to retire, but then to return to work and still maintain his monthly retirement payments. Teachers in critical shortage areas currently have this option.

Optional retirement benefits. SB 850 (Lambert), was reported. The bill provides that local public school boards and political subdivisions of counties, cities and towns may not offer or provide any optional retirement benefit under VRS unless authorized by the council or board of supervisors by resolution or ordinance.

Optical scan voting bill amended

The Senate Privileges & Elections Committee amended SB 840 (Devolites Davis) to require that localities purchase only optical scan voting equipment in the future. As originally introduced the bill carried a $26 million price tag to localities, which would have been required to replace all direct recording electronic voting machines with optical scans.

Update on homestead constitutional amendments

The Senate Privileges & Elections Committee combined several constitutional amendments dealing with property tax exemptions into one amendment that would permit localities to exempt or defer from property taxes up to 20 percent of the value of residential or farm property that is designed for continuous habitation as a home and is owner-occupied.

The final wording of the amendment is still in the works, and will be before the full committee on Jan. 30. On the House side, a House Privileges & Elections subcommittee meets Jan. 24 at 5 p.m. to consider constitutional amendments; the full committee meets Friday mornings at 8:30 a.m.

SOQ bill goes to House Appropriations Committee

The House Education Committee reported and re-referred to the House Appropriations Committee the bill containing the Board of Education’s proposals to strengthen the Standards of Quality -- HB 2093 (Tata). The bill increases staffing standards for principals, assistant principals, reading specialists, speech language pathologists, math specialists, data manager/coordinators, and teachers of the vision impaired. The league has a legislative position supporting the increased standards for principals, assistant principals, reading specialists and speech language pathologists.

Bill clarifying localities can deny rezonings for inadequate roads appears dead

SB 1254 (Herring), SB 817 (Cuccinelli) and HB 2814 (Sickles) all died when presented in committee. The bills would have made it clear that a locality may deny a rezoning if the off-site roads are inadequate for the extra burdens created by the new development resulting from a rezoning. This is existing law, but is often not used by a locality in considering a rezoning, due to the threat of litigation. The Senate bills were combined and rejected by the Senate Local Government Committee. A subcommittee of the House Counties, Cities and Towns Committee voted against the House bill. That bill will also be heard Friday in the full Counties, Cities and Towns Committee.

Aviation funding formula changed

SB 1328 (Williams) changes the distribution of revenues of the Commonwealth Airport Fund for funds in excess of $12.1 million. The Commonwealth Airport Fund, part of the Transportation Trust Fund, authorizes funds to be allocated by the Virginia Aviation Board to any Virginia airport owned by the Commonwealth, a governmental subdivision, select private entities, or the Metropolitan Washington Airports Authority (MWAA). The proposed legislation eliminates funding currently designated for general aviation airports, and increases the percentage of funds allocated to air carrier airports, except airports owned or leased by MWAA. The bill is in Senate Finance.

Bill increases penalties related to overcrowding zoning violations

HB 2261 (Rust) allows an increased penalty for a residential overcrowding violation of the zoning ordinance. This bill will be heard next week in the House Counties, Cities and Towns Committee.

Affordable dwelling unit ordinance legislation

HB 2451 (Toscano) and SB 1131 (Deeds) amend the general affordable dwelling unit authority law to make the ordinance apply to building taller than four stories; to allow higher densities; to create a local housing trust fund into which developers could contribute in lieu of providing the affordable units directly. The House bill should be heard by the Counties, Cities and Towns Committee Friday. The Senate Local Government Committee has not yet acted on the senate bill.

Transfer of development rights – city / county agreements

An amendment to the transfer of development rights legislation last year will allow cities and counties to enter into an agreement for the transfer of those rights from the county to the city. HB 2503 (Toscano) and SB 869 (Watkins) are the bills. The bill put forth by Sen. John Watkins (Chesterfield) passed the Senate. The full Counties, Cities and Towns Committee should take up the house bill Friday.

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