eNews February 11, 2022
Friday, February 11, 2022 - 05:59pm
This edition of eNews is sponsored by:
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In this issue:
- Halftime Report: The Budget Bill crunch looms!
- Reminder: Key dates for the 2022 General Assembly Session
- Temporary detention orders and alternative transportation bills: Updates
- Bills to increase jury payments meet different fates
- Marcus Alert bills: Substitutes progress in House and Senate
- Two bad bills are gone. Thanks for contacting your legislators!
- Solar roof requirements bill passed out of Senate General Laws and Technology Committee
- Bills reported out of the House Counties, Cities and Towns Committee (including Charter bills)
- FOIA bill reported out of the House General Laws Committee
- Bill returning elections to May survives…for now
- Who may appeal historic district and monument decisions?
- Eminent Domain bills would make condemnation cases more expensive for localities
Action Alert
Oppose: Short-term rental bill will be on the House floor next week!
Bill would require localities to adopt an ordinance to tailor the operation of short-term rentals
HB1362 (Wiley) will require localities to adopt an ordinance if they want to tailor the operation of short-term rentals. The text of the relevant change to Virginia Code 15.2-983 is as follows:
“If the governing body of any locality has not by ordinance, pursuant to its general land use and zoning authority, restricted the operation of short-term rentals, an operator may operate a short-term rental in the locality, subject to applicable law.”
Background
In 2017 legislation patroned by Senator Norment provided localities with the ability to regulate short-term rentals on a local level. Localities made local decisions to regulate short-term rentals after that legislation that included ordinances, a registry and special use permits.
VML adopted a land use position that says the following: “Localities must maintain control of local land use decisions. Neither the state nor the federal government…impose requirements that weaken planning and land use functions. This includes all types of housing to include but not limited to short-term rentals.”
Example:
One tourist locality allows short-term rentals as a matter of right in some districts and special use permits in another. In the last 3 years they have an approval rating of 75 percent or more on the special use permits. Each of these special use permits required public notices and public hearings so the local citizens could have their voice heard on these specific short-term rentals.
Action Requested / Talking Points
HB1362 is scheduled to be heard by the full House next week. Please contact your delegates and inform them:
- The ability for a locality to allow public input on a specific short-term rental location is powerful.
- This bill forces localities to make a land use decision or pre-emption will occur.
- This bill does not specify a time frame for their ordinance on short-term rentals.
- Current short-term rental laws are working.
A full list of Delegates with contact information is available here >.
VML Contact: Michelle Gowdy, mgowdy@vml.org
General Assembly
Halftime Report: The Budget Bill crunch looms!
The days are getting longer and the bills fewer. The inaugural bandstands are long gone but the Super Bowl is just about here. Welcome to day 31 (of 60) of the 2022 Virginia General Assembly!
In ten days, on Sunday, February 20th, the Senate Finance and Appropriations Committee (SFAC) and House Appropriations Committee (HAC) will release their respective budget bills. These actions will require the evaluation of more than $20 billion in General Fund (GF) spending requests. For comparison purposes, former Governor Northam’s introduced budget assumed $55.3 billion in total GF revenue collections in FY2023 and FY2024.
The more numerous body (Team HAC) faces the greater mathematical task: Delegates have submitted more than $12.8 billion in GF requests, while Senators have “only” submitted requests for $6.5 billion.
By setting their chamber’s proposed budget, Teams HAC and SFAC will also be setting their opening positions for negotiations during the final weeks of Session with the other legislative body as well as Governor Youngkin.
For the reasons stated above, it is reasonable to expect House and Senate budgets that could be separated by billions in proposed new spending. Looming large among the spending differences will be how each chamber proposes to further reduce sales taxes on groceries, a.k.a. “the grocery tax”.
See below for an update on the grocery tax legislation.
VML Contact: Carter Hutchinson, chutchinson@vml.org
Reminder: Key dates for the 2022 General Assembly Session
We are almost to the “crossover” for this long session, but there’s still plenty of action yet to come. Here are some dates to keep an eye on:
- Tuesday, Feb. 15: “Crossover” – the deadline for each chamber to complete work on bills originating in that chamber (except for the budget)
- Sunday, Feb. 20: House Appropriations Committee and Senate Finance & Appropriations Committee will unveil their respective budget proposals
- Tuesday, Feb. 22: Details of amendments included in the House and Senate budget proposals will be made available by 12 noon (these will be listed on the LIS budget page)
- Thursday, Feb. 24: Each chamber must complete work on their respective budgets
- Wednesday, March 2: Deadline by which each chamber must complete work on the other chamber’s budget proposal and revenue bills and appoint budget conferees
- Monday, March 7: Deadline for committee action on legislation by midnight
- Saturday, March 12: Date for scheduled adjournment sine die
- Wednesday, April 27: Reconvened Session for consideration of Governor’s proposed amendments and vetoes to bills and the budget
VML Contact: Janet Areson, jareson@vml.org
Finance
Grocery tax legislation: Update
For those who want to protect funding for local law enforcement and public schools, the negotiations between Senate, House and Governor on the grocery tax will be critical. The fine print on a grocery tax deal will determine the fate of up to $700 million a year, and growing, the vast majority of which goes to local governments.
If the state does not pick up the tab for exempting groceries from sales taxes, the annual budget cuts will be passed on to Virginia’s counties, cities, and towns, who will then be forced to increase property taxes, or cut services like law enforcement and public education.
In the Senate
Yesterday evening, a new compromise bill was advanced by a bipartisan majority of Senate Finance and Appropriations Committee members to the floor of the Senate. In its new form, SB451 (Boysko) would exempt groceries from the 1.5 percent state sales tax, leaving the local option sales tax alone. Importantly, the Senate compromise bill also would codify revenue replacement to localities in the Code of Virginia. VML is continuing to review this legislation to determine its long-term potential impact, but the league appreciates the thoughtful direction Senators have taken compared to earlier Senate bills.
In the House
This evening, the House Appropriations Committee is expected to advance HB90 (McNamara) to the full House of Delegates. HB90 would exempt groceries from both the 1 percent local sales tax and the 1.5 percent state sales tax. VML is grateful that HB90 would replace some of the revenue loss it would cause at the local level. However, VML continues to urge legislators to replace all local revenue through a statutory change, as done in SB451, not just through budget language.
Please help defend local budgets!
Over the next week, please reach out to your Senators and Delegates, particularly those serving on Senate Finance or House Appropriations, and encourage them to honor two simple principles on any changes to Virginia’s sales taxes:
- Fully replace all lost local funding.
- Codify the local revenue replacement method in state law.
Emphasize to legislators that by keeping these two principles as part of any legislation they will be protecting public education and law enforcement from the funding cuts that would result from state action reducing the sales tax base.
VML will continue monitoring and educating legislators about this critical issue in the coming weeks.
VML Contact: Carter Hutchinson, chutchinson@vml.org
Revenue reforecast a less certain Valentine’s gift this year
One year ago, Governor Northam started Valentine’s Day week off with a revenue reforecast of $730 million in new General Fund money. This unanticipated Valentine from the Governor helped House and Senate budget leaders horse trade as they entered final stretch of the 2021 Session. Indeed, it is a power that Governors often avail themselves of during legislative sessions.
With Senate Finance and House Appropriations so far apart, financially speaking, how much new money is Governor Youngkin willing to put on the table through a revenue reforecast?
And, being a fiscally conservative state, how much of that new revenue should the General Assembly assume is ongoing, versus only one-time in nature?
Legislators, particularly the appropriators, need to consider these vital fiscal questions over the next week as they recover from the Super Bowl and prepare for Budget Sunday. The answers to these questions will carry consequences that last much longer than one season.
VML Contact: Carter Hutchinson, chutchinson@vml.org
Behavioral Services
Temporary detention orders and alternative transportation bills: Updates
As of February 11, the following bills addressing emergency custody orders, temporary detention orders (TDO), and alternative transportation and alternative custody arrangements are progressing through the Senate and House.
In the Senate
SB202 (Newman) directs the Secretaries of Health and Human Resources and Public Safety and Homeland Security to study options to increase the use of alternative custody arrangements for individuals who are subject to an emergency custody or temporary detention order and to report to the Governor and select House and Senate committee chairs by Oct. 1, 2022.
The Senate also passed SB268 (Favola), which now incorporates SB176 (Peake), SB650 (Hanger), and SB682 (Deeds), was approved by the Senate on Feb. 10 and will move to the House. This consolidated bill would:
- Require a magistrate or court issuing an emergency custody order (ECO) to consider all options for alternative transportation, including any such provider in a contract with the Department of Behavioral Health and Developmental Services (DBHDS). If no alternative is available or suitable, the primary law enforcement agency executing the ECO would be required to provide transportation.
- Allow the primary law enforcement agency to transfer custody of the person to an alternative transportation provider immediately upon execution of the emergency custody order. The provider would maintain custody until an evaluation is conducted and custody of the person is either transferred to a facility under a TDO or released.
- Require DBHDS to amend its existing alternative transportation contract or enter into new contracts to ensure availability of providers and sufficient licensed security staff to take custody of and provide transportation for persons with an ECO or TDO, until all state funds for alternative transportation have been expended.
The Senate also passed SB593 (Newman), which would allow auxiliary police officers to execute ECOs and provide transportation for a person subject to an ECO or TDO. Like SB268, this bill also would allow a primary law enforcement agency to transfer custody to an alternative transportation provider upon execution of an ECO. The bill would also direct the Department of Criminal Justice Services to establish compulsory minimum training standards for auxiliary police officers who would participate in the ECO/TDO process.
In the House
In the House, one bill remains: HB1147 (Bell), which would allow an employee or designee of a state facility who is available to take custody of a person subject to a TDO to assume custody if no bed is immediately available for that person. That employee or designee would also transport the person to the state facility or to an alternative facility of temporary detention as necessary.
The bill was reported from committee and on the House floor but sent back to House Courts by the patron, who chairs that committee.
VML Contact: Janet Areson, jareson@vml.org
Bills to increase jury payments meet different fates
SB730 (Lewis) and HB378 (Williams Graves) would increase the per diem paid to jurors for circuit courts for the first time in approximately 30 years.
Senate Finance and Appropriations reported the Lewis bill on Feb. 9, with an amendment that increased the per diem to $50 (the original bill would have boosted it to $100). The $50 amount is what is paid to jurors in federal courts.
HB378 would have taken a graduated approach to get to the $50 increase. The bill was tabled by a House Appropriations subcommittee on Feb. 9.
VML Contact: Janet Areson, jareson@vml.org
Marcus Alert bills: Substitutes progress in House and Senate
HB1191 (Ransome) was originally a companion bill to SB361 (Stuart), which as introduced would have made participation in the Marcus Alert system a local option. Both bills have since been modified.
On Feb. 10, Del. Ransome introduced a substitute to her bill in a House Public Safety subcommittee. The substitute was reported by the full committee on Feb. 11. VML spoke in favor of the substitute.
Instead of a local option, the substitute to HB1191 would allow extra time for implementation, require additional reporting by the state agencies involved, and create a workgroup of smaller localities to identify barriers to implementation and provide recommendations to address those barriers.
Components of the substitute include:
- All localities would be given until July 1, 2023, (instead of July 1, 2021) to establish a voluntary database for relevant mental health/developmental/intellectual disability information and emergency contact information for individuals in their community for use by 9-1-1 dispatch and Marcus alert system.
- Localities with populations greater than 40,000, would have until July 1, 2023, (instead of July 1, 2022) to establish local protocols for law enforcement participation in the Marcus alert system that are approved by the Department of Behavioral Health and Developmental Services (DBHDS).
- Localities with populations of 40,000 or less would have until July 1, 2024, for establishment of those same protocols.
- DBHDS would be required to assess and report annually to the Governor and select General Assembly Committee Chairs and legislative commissions on issues and metrics, including the impact of the system in meeting its goals; the number of programs operating; how they work to connect the crisis system; number of calls received for assistance and number of responses by community care and mobile crisis teams; and an analysis of overall operations of any local protocols or programs and any disparities in response and outcome by race and ethnicity of individuals.
- DBHDS and the Department of Criminal Justice Services would also be required to convene a work group of representatives from localities with populations less than or equal to 40,000 to identify barriers to establishment and implementation of the protocols required by the law. The work group’s findings and recommendations to address such barriers would be due to select General Assembly Committee Chairs, the Behavioral Health Commission, and the Joint Commission on Health Care by Dec. 1, 2022.
In the Senate, a substitute to Senator Stuart’s SB361 was passed by the Senate on Feb. 7. The substitute measure would allow optional participation in the Marcus Alert system by localities under 40,000 population but would still require that all localities develop local protocols to divert calls from 9-1-1 dispatch to a crisis call center for risk assessment and engagement, including deployment of mobile crisis or community care teams if such teams are available.
VML Contact: Janet Areson, jareson@vml.org
Marijuana
Marijuana legislation moves in the Senate, House changes approach
Although marijuana related legislation in the Senate has advances, the House has announced that instead of acting on its own legislation, it will wait to act on the Senate’s proposals after crossover next week. This means the legislation on marijuana introduced in the form of House Bills will not be considered in time to meet the crossover deadline on Feb. 14. This gives the House more time to consider what the House package will look like while waiting on the Senate to pass their packages.
The House bills that will not make it to crossover include HB211 (Hodges), HB430 (Herring), HB950 (Webert), and HB43 (Ware). Although these specific bills will die due to a lack of action, the substance of these bills is likely to return in the form of amendments to the Senate bills after they pass the Senate and are considered in the House. These considerations include re-enacting the 2021 legislation to establish a retail market and regulations and requiring an opt-in referendum to be held to allow retail sales.
Senator Ebbin’s SB391 and SB313 passed out of the Senate Committee on Finance and Appropriations Thursday evening on a party line vote. These bills should reach the Senate floor for consideration after crossover on Feb. 15.
Some of the key differences between the House and Senate bills include:
- Town authority to hold referendums (SB391 includes the necessary authority for towns to hold a referendum).
- Local zoning authority (HB950 and HB430 provide greater local authority for local zoning).
- Local regulation of hours of operation (HB950 and HB430 includes local authority on local hours of operation).
- Local taxation on early retail sales (SB313 includes the local option 3 percent tax rate on early retail sales of marijuana).
VML will continue to advocate for local authority and local control of marijuana retail sales and businesses and to allow all localities – including towns – to decide if they want to allow retail sales in their community.
Thank you to everyone who has contacted their legislators on these issues and please continue reaching out with questions and concerns. Please contact me with any questions as the General Assembly continues deliberating this legislation which will affect every community in the Commonwealth of Virginia.
VML Contact: Mitchell Smiley, msmiley@vml.org
Environment
Amendments to solid waste regulations proposed
Public comments begin Feb. 14, 2022
Recently proposed amendments to the Virginia Solid Waste Management Regulations would impact permitted solid waste operations and operators as well as ban private property owners from burning household waste.
Localities that own or operate solid waste facilities – either currently in operation or decommissioned – should review the proposed amendments to determine if and how these amendments would impact their solid waste operations. The fiscal impact statement prepared by the Department of Planning and Budget notes that local impacts are likely, but the Department was unable to quantify these impacts. As such, it is important for affected localities to carefully review these recommendations and submit comments detailing how these amendments will affect your locality.
Please also share any fiscal impacts with VML’s Mitchell Smiley, msmiley@vml.org.
The below notice is from the Department of Environmental Quality provides more details:
Opportunity for Public Comment on VA Solid Waste Management Regulations
The Virginia Department of Environmental Quality (DEQ) is providing notification of an opportunity for public comment on the proposed changes to the Virginia Solid Waste Management Regulations, 9 VAC 20-81 (Amendment 9).
The Virginia Solid Waste Management Regulations establish standards and procedures for the siting, design, construction, operation, maintenance, closure, and post-closure care of solid waste management facilities in the Commonwealth. The regulations also establish standards and procedures pertaining to the general management of solid wastes.
Proposed Changes to the VA Solid Waste Management Regulations
The regulations are being amended in response to a 2019 periodic review to strengthen some requirements to be more protective of human health and the environment, to clarify some existing requirements, to address recommended regulatory changes in the Secretary of Natural and Historic Resources’ report to the Governor in response to Executive Order 6 (2018), and to include editorial corrections.
The main goal of this amendment is to improve standards for the siting, operation and monitoring of landfills. Operational requirements for non-landfill facilities (such as transfer stations, materials recovery facilities, compost facilities, incinerators, etc.) have also been updated.
This amendment also proposes to prohibit burning of household waste (except for vegetative waste, clean wood, and clean paper products) on private property in order to be more protective of human health and the environment. Under the proposal, only vegetative waste, clean wood and clean paper products will be allowed to be open burned on private property when no regular collection services are available.
The Proposed Text of the regulations and an Agency Background Document summarizing the proposed changes are available on the Virginia Regulatory Town Hall website here >. https://www.townhall.virginia.gov/L/ViewStage.cfm?stageid=9457.
Public Comment Period February 14, 2022 – May 16, 2022
DEQ will accept written public comments on the proposed changes to the regulations starting on February 14, 2022 and continuing through May 16, 2022.
Comments on the proposed regulation can be submitted through the Public Comment Forum on the Virginia Regulatory Town Hall website. DEQ also accepts written comments by e-mail, fax, postal mail, and hand-delivery. Comments must be received by DEQ in writing no later than 11:59 pm on the last day of the public comment period. Comments must include the full name, address, and telephone number of the person commenting. All testimony, exhibits and documents received are part of the public record.
If you would like to sign up to receive free email notifications from Virginia Regulatory Town Hall concerning regulatory actions, please register as a town hall public user.
VML Contact: Mitchell Smiley, msmiley@vml.org
Education
School construction legislation: Updates
SB471 (McClellan) would increase the Literary Fund loan amount available for use by localities for school construction.
- Status: This legislation was passed out of the Senate Finance and Appropriations Committee by a vote of 15-0 with a substitute and then passed out of the Senate with a vote of 40-0.
SB481 (McClellan) would codify the ability for local governing bodies and school boards to enter into a collaborative agreement to properly allocate any unexpended funds at the end of a fiscal year. Currently, any unexpended school funds at the end of the year are returned to the local governing body unless the locality chooses to allow the funds to remain with the school division. This legislation codifies the ability to enter into such agreements.
- Status: This legislation was passed out of the Senate Finance and Appropriations Committee by a vote of 16-0 with a substitute. The substitute seeks to align with SB276 (Stanley) which was rolled into SB481. The bill then passed out of the Senate with a vote of 40-0.
SB473 (McClellan) would establish a School Construction Grant Fund, funded through casino gaming proceeds. Casinos in Virginia were established on the basis that 98 percent of the funds would be appropriated for school construction. As a mechanism to keep this promise, SB473 would create the fund for casino revenues to be placed in.
- Status: This legislation incorporated SB117 (Newman) and was passed out of the Senate Finance and Appropriations Committee by a vote of 16-0. SB473 was read for the second time on the floor of the Senate and is currently waiting to be read for the third time. Following the third reading of this legislation, SB473 will either be passed or fail to report.
HB563 (O’Quinn) would create a School Construction Matching Grant Fund and Program to be used solely for school construction projects utilizing money previously appropriated to the Literary Fund. Grants would be rewarded based on need, commitment, and the LCI to ensure low-income school divisions would receive funds first.
- Status: HB563 was heard in the House Appropriations Committee where it was further amended to include aspects of the various school construction legislation that failed in the House. It is expected to pass out of the full House this evening.
VML Contact: Josette Bulova, jbulova@vml.org
Local Government Legislation
Two bad bills are gone. Thanks for contacting your legislators!
VML appreciates all the people who contacted legislators to voice opposition to the legislation outlined below.
SB224 (McPike) Lobbying; local government actions; notice and fee to clerk of governing body. This bill was carried over to 2023. This legislation would require individuals who influence or attempt to influence a local government to provide notice to the locality’s clerk and pay a fee. The notice would have to be given 15 days prior to the first attempt to communicate with the local government and would need to include the individual’s name, telephone number and business address as well as the local government action that the individual seeks to influence.
Qualifying “local government actions” include any enactment, repeal or modification of an ordinance or resolution including actions related to local taxes, the budget and land use proceedings. It does not apply to attorneys clearly identified on a land use application, any contractor or employee performing services for local government or local government employees or officers acting in their official capacity.
The notice would be good for one year. Failure to comply with the notification/fee requirement would result in a class one misdemeanor (which includes potential jail time).
HB626 (Roem) Disclosure in land use proceedings; statewide application. There was an attempt to amend this bill, but in the end the bill failed to report! This bill would create new and more stringent land use disclosure requirements for local government officials. These requirements apply to the governing body, the planning commission, and the board of zoning appeals in any proceeding before each such body involving an application for a special exception or variance or involving an application for amendment of a zoning ordinance map, which does not constitute the adoption of a comprehensive zoning plan, an ordinance applicable throughout the locality, or an application filed by the governing body that involves more than 10 parcels that are owned by different individuals, trusts, corporations, or other entities.
If at the time of the hearing in any such case, such member has a business or financial interest with the applicant, that member shall, prior to any hearing on the matter or at such hearing, make a full public disclosure of such a business or financial interest or employee-employer, agent-principal, or attorney-client relationship and shall be ineligible to vote or participate in any way in such case or in any hearing thereon.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Solar roof requirements bill passed out of Senate General Laws and Technology Committee
SB290 (Favola) Solar-ready roof requirements for state agencies and localities; energy-positive building design for schools. This bill requires localities to use solar-ready, cool, or energy efficient roofs on construction of a new building greater than 5,000 gross square feet in size, or the renovation of a building where the cost of renovation exceeds 50 percent of the value of the building. In addition, new buildings and facilities and improvements and renovations to existing public school buildings and facilities where the cost of the renovation exceeds 50 percent of the value of the building must be designed and constructed to meet net-zero energy consumption standards. There is also a definition of “solar-ready, cool, or energy efficient” along with language on the ability to opt out.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Bills reported out of the House Counties, Cities and Towns Committee (including Charter bills)
HB616 (Roem) Zoning appeals, board of; funding. This bill states that upon the request of a board of zoning appeals, the governing body shall consider providing them with an adequate budget. If there is a need to go over the budget the governing body will consider the request.
HB1088 (Leftwich) Planning; subdivision of land and zoning. There continues to be work done on this bill, but as currently written it would alter the definition of subdivision in 15.2-2201 to allow bona fide property line disputes by agreement without local review if the adjustment does not move by more than 250 feet from the center of the current platted line or alter either parcel’s acreage by more than 5 percent. It also cannot create an additional lot, alter the existing boundaries, result in more street frontage or interfere with a recorded easement. If the division of land is subject to a suit of partition it also will not need local review if the parcels are not varied from minimum lot area, width, and frontage requirements by more than 20 percent.
HB1271 (Morefield) Virginia Regional Industrial Facilities Act; localities revenue sharing agreements. Localities may agree to a revenue and economic growth-sharing arrangement with respect to tax revenues and other incomes/revenues generated by a facility owned by an authority or a facility owned by a non-authority utilized as part of a cooperative arrangement entered into by an authority promoting economic and workforce development.
HB961 (Roem) Cemeteries; registration, publication prior to sale. As introduced this bill requires every locality to adopt an ordinance setting forth a register of identified cemeteries, graveyards, or other places of burial located on private property not belonging to any memorial or monumental association. The bill provides that the official local register shall include an official map and that both the register and map shall be available on the locality’s website if one exists. The bill also provides that the governing body shall publish a notice in a newspaper having general circulation in the locality at least two weeks prior to the sale of any property on such registry, or as soon thereafter as possible, and shall also publish the notice on the locality’s website if one exists. As amended this legislation uses the word “may” instead of “shall” providing a tool but not a mandate.
Charter bills:
- HB164 (Ransone) Colonial Beach, Town of; amending charter, appointment of chief of police.
- HB548 (Hayes) Chesapeake, City of; local government authority to require analysis of water.
- HB1170 (Fariss) Appomattox, Town of; amending charter, election, and appointment of officers.
- HB83 (Kilgore) Charles, Town of; termination of township.
- HB904 (Kilgore) Pound, Town of; repealing charter. This repeal was extended to July 1 of 2023.
- HB1258 (Wright) La Crosse, Town of; amending charter, municipal elections.
- HB1311 (Avoli) Waynesboro, City of; elections and appointments.
VML Contact: Michelle Gowdy, mgowdy@vml.org
FOIA bill reported out of the House General Laws Committee
HB307 (Freitas) Virginia Freedom of Information Act; estimated charges for records. The substitute provided during the meeting states that before searching for records a public body must notify the requestor in writing that there could be a cost to the production of the records and offer to create a cost estimate if asked. The costs incurred in providing the estimate can be included in the overall charges.
VML Contact: Michelle Gowdy, mgowdy@vml.org
Bill returning elections to May survives…for now
HB1082 (Leftwich) would allow May elections for cities and towns. It undoes the law moving all elections to November enacted in the 2021 Special Session I. The House Privileges and Elections Committee reported the bill, and it will now be considered by the full House.
Contact: Mark Flynn, markkflynn@gmail.com
Who may appeal historic district and monument decisions?
If the answer is “anyone” then there’s trouble ahead
HB1210 (Hope) and SB206 (Petersen) were filed to expand the persons who have standing to challenge a decision by a locality’s historic district board. However, in committee HB1210 was narrowed so much it is now more restrictive than current law! It was continued to 2023 in the House Cities, Counties and Towns committee today. In contrast, SB206 still allows any citizen of the locality who attended a public hearing on the decision to sue. SB206 was sent to the Senate Judiciary Committee.
Both bills prohibit a locality from issuing a permit to destroy an historic structure until 30 days after a final decision of the town or city council.
The wide-open approach as to who may file an appeal as put forth in SB206 will lead to numerous costly – and likely frivolous – lawsuits. VML opposes the bill.
VML Contact: Mark Flynn markkflynn@gmail.com or 804-400-1321
Eminent Domain bills would make condemnation cases more expensive for localities
In its present form, SB666 (Petersen) has three areas of concern for local governments:
- If a city or town takes some action that limits or cuts off access to business property for a short period of time, the business owner can sue for lost profits. Examples include a parade or street festival that closes the street temporarily, or a sidewalk improvement project or water main break fix that limits access for a short period of time. These lawsuits are unlikely, but the law should not encourage them.
- In the section dealing with determining the amount, if any, the landowner is to be paid, the bill provides that a court shall allow a separate trial over lost profits or lost access from the main condemnation trial at the request of the landowner. Current law provides that the court may separate the trials. A separate trial should remain the decision of the court.
- The bill removes an existing protection in the law that prohibits a duplication of compensation for lost profits and lost access. A city or town should never face the possibility of paying twice for the same damage.
SB666 is under consideration by the Senate.
SB694 (Obenshain), in its current form, has one provision that is a problem. The bill requires the condemning locality to include an end-date for any temporary construction easement. However, it is impossible to provide an end-date with larger projects, like street maintenance or extending a water main. In cases like these, the locality cannot know the end date at the time it files the condemnation certificate. We are working with Senator Obenshain to resolve this issue. The Senate passed the bill.
VML Contact: Mark Flynn, markkflynn@gmail.com
