eNews February 2, 2018

Friday, February 02, 2018 - 03:54pm

In this issue

Act now: Wireless infrastructure will be on the House floor on Monday
“By right” solar bills strip local authority
On-line checkbook registry bill to be heard Feb. 6
FOIA bills: Some are moving, and some are gone
Fireworks update
Cooperative procurement bill advances
Election legislation update
Update on other bills affecting local government
House bill to exempt new businesses from taxes fails in committee
School board authorization of legal actions passed by
House Finance Committee short circuits communications tax
Senate Finance Committee pushes LODA bills to next year’s session
Federal infrastructure plan may crumble
Wireless infrastructure: Action in both houses on Monday

House bill on floor on Monday: Talk to your delegates this weekend

HB1258 (Kilgore) was reported out of the House Commerce and Labor Committee Thursday evening, Feb. 1. It was an extremely frustrating hearing in which Verizon, Sprint, AT&T, Shentel and the Virginia Chamber of Commerce supported this legislation, stating that it would expand wireless and broadband all over the Commonwealth … However, the bill does nothing to encourage these companies to expand into areas where their business model doesn’t make them money!

VML passed out copies of the resolutions that localities have sent in and explained that their local governments OPPOSE this legislation. We will continue to OPPOSE this bill and the Senate companion which is listed below.

Please call your Delegates and ask them to vote no on the floor! Our talking points and a draft resolution are available at the links listed below.

Senate Commerce & Labor to take up bill Monday

Please ask members of the Senate Commerce & Labor Committee to OPPOSE SB405. The bill will be heard Monday afternoon, following adjournment of the noon floor session.

SB405 (McDougle) would eliminate most local authority over the operation and installation of new wireless structures. The bill:

*Eliminates most local control over the installation and operation of new wireless structures by classifying most new wireless structure projects as “Administrative Review-Eligible Projects.” (Some projects would be classified as “Standard Process Projects.”)

*Treats the wireless industry differently from all other private profit-making industries, thus leaving localities (and the state) open to charges of discrimination against other industries.

*Moves the decision-making process about land use from the community and its citizens and elected officials to for-profit companies who care about their bottom line, not about citizens’ welfare and desires.

Click here for more details and talking points.

Make sure that your Senator has a copy of the editorial by the CEO of the Wireless Infrastructure Association published in the Richmond Times-Dispatch. The editorial points out that SB405 (and its House counterpart, HB1258) “eliminate the long-recognized role of localities and public input on how wireless infrastructure is incorporated into the community.”

If your council or board has not adopted a resolution in opposition to HB1258 and SB405, we hope you will! A template for the resolution is on VML’s website. And be sure to let VML know if a resolution is adopted!

VML contact: Michelle Gowdy, mgowdy@vml.org

“By right” solar bills strip local authority

Bills stripping local authority to regulate solar facilities on homes as well as on commercial, industrial, institutional, and agricultural structures are moving through in the General Assembly. Please make sure your legislators know of your concerns.

HB508 (Hodges) and SB429 (Stanley) pose a major threat to local zoning authority by making solar facilities on homes, commercial, industrial and agricultural land a BY RIGHT facility. The result would be that you would have no authority to regulate where these facilities can or will be located on a structure. Unless a local ordinance provides otherwise, ground-mounted is also BY RIGHT if it meets setbacks and complies with any historic district requirements. HB508 was passed by the House on a 90-6-1 vote. SB249 will be up for a final vote early next week.

HB509 (Hodges) and SB179 (Stanley) are the companion bills. HB509 was reported to the House floor today and SB179 is up for the final vote on Monday.

Under the bills, solar facilities meeting certain conditions would be deemed to be substantially in accord with the comprehensive plan. Those conditions include: 1) if the facility is located in a zoning district that allows solar facilities by right; 2) if the solar facilities will serve the electricity or thermal needs of the property on which it is located, or that will be operated by utilities offering net metering. 3) localities may allow for a substantial accord review for solar facilities to be advertised and approved concurrently in a public hearing process with a rezoning, special exception, or other approval process.

VML contacts: Michelle Gowdy, mgowdy@vml.org; Mike Polychrones, mpolychrones@vml.org

On-line checkbook registry bill to be heard Feb. 6

Senate Local Government abruptly ended its Jan. 30 meeting and failed to take up SB751 (Sturtevant). The bill now will be heard Feb. 6. Please make sure you talk to your senator about this bill. The bill requires localities with a population greater than 25,000 and each school division with more than 5,000 students to post quarterly on their website a register of all expenditures, to include the vendor name, date of payment, amount and description of type of expense (including credit card purchases).

Talking points for SB751:

Even localities and school divisions that meet the population criteria and that already post their checkbooks on their websites may not meet the requirements of the bill.
The experience in at least one locality with its current on-line portal is that people logging into the portal are primarily from outside of the United States.
Many localities and school divisions may have to change accounting software and systems. If they do, it will be expensive.
Administrative time will be required to ensure that confidential information is not displayed.
All expenditures and related information are already available through a locality’s budget or through the FOIA process, unless an exemption applies.

VML contact: Michelle Gowdy, mgowdy@vml.org

FOIA bills: Some are moving, some are gone

Many bills dealing with the Freedom of Information Act were introduced this session. Here is a quick update.

Moving forward

SB336 (Peake) requires that public comment is taken at any open meeting. The bill passed out of committee without any opposition and is on the Senate floor. VML has concerns as the public comment requirement would extend to every public meeting, including subcommittees, work sessions, etc. The House General Laws Committee has a similar measure before it in Subcommittee #4 (HB1101-Robinson).

SB529 (Mason) passed the Senate this week. The bill requires an applicant for a building permit to include a written statement that includes identifying information of a licensed or certified person who will carry out or supervise the work. At the same time, the bill removes the requirement that an applicant provide a declaration of facts stating that he is not subject to licensure or certification.

SB630 (Surovell) passed the Senate today, Feb. 2. The bill adds additional penalties for person who intentionally alter or destroy a record or who voted to certify closed session erroneously. It further provides that the fine is a personal fine not to be paid by the public body.

Stalling or appear to be

SB730 (DeSteph) failed in committee this week. The bill would have clarified the definition of “public record.” This bill attempted to define “social media account” and then create an exemption for social media records of General Assembly members when the records relate to social media use in an individual capacity.

HB1603 (Roem) pertained to charges that could be collected for the production of records. VML opposed this bill, and it was continued to 2019 by a voice vote.

SB876 (Mason) would have amended the definition of “custodian.” This bill will be sent to the FOIA Advisory Council via letter for study this summer and fall. The House General Laws Subcommittee #4 has measures in it dealing with custodial issues (HB504-Mullin, HB664 – Kilgore, HB957 – Yancey, HB958 – Yancey and HB959 – Yancey), but the subcommittee hasn’t yet acted on these bills.

VML contact: Michelle Gowdy, mgowdy@vml.org

Fireworks update

SB778 (Suetterlein), which would have broadened the definition of consumer fireworks, failed in committee on Jan. 29. As reported previously in eNews, SB173 (Stanley) has been referred to Senate Finance. This bill would allow localities to host firework retail sales facilities or stores and creates the Local Consumer Fireworks Fund (“the Fund”). The Fund would be hosted by the State Comptroller and would consist of a fireworks tax that would be collected and distributed evenly among the localities in which fireworks are sold. The locality would have to use these funds to supplement the salaries paid to deputy sheriffs.

VML contact: Michelle Gowdy, mgowdy@vml.org

Cooperative procurement bill advances

SB688 (Ruff), which has passed the Senate, adds stream restoration and stormwater management to a list in which cooperative procurement is allowed. A similar measure, HB574 (Hodges) is in House General Laws Subcommittee #4, which meets Tuesday afternoons.

VML contact: Michelle Gowdy, mgowdy@vml.org

Election legislation update

Fallout from issues arising in the November 2017 general election spurred the introduction of a host of election bills this session. On Jan. 25, House Speaker Kirk Cox and Senate Majority Leader Thomas K. Norment announced the formation of a Joint Subcommittee on Election Review that will work on issues related to the conduct of elections, including absentee balloting, the assignment of voters in split precincts, and recount law and procedures. The committee will be chaired by the chairs of the House and Senate committees on privileges and elections, Delegate Mark Cole and Senator Jill Holtzman-Vogel.

Even with the formation of the subcommittee, legislation dealing with split precincts is moving forward. HB 1325 (Cole) would allow voters who are assigned to a split precinct and who think they were given a ballot for the wrong district to cast provisional ballots for what they think is the correct district. The bill has passed the House. SB983 (Obenshain) would require counties and cities to adjust local election district lines to the congressional and state legislative district lines established by the General Assembly to eliminate split precincts. The bill also sets up a process for the locality to request a waiver from the requirement from the state Department of Elections, if the locality cannot eliminate the split precinct. The bill is on the Senate floor.

Numerous bills were introduced in both houses again this year to reform the redistricting process. Several of the House bills will be heard next Tuesday in House Privileges & Elections Subcommittee #1, which in past years has shot down similar efforts. Measures on the docket for Feb. 6 include HB205 (Sullivan), HB276 (Rasoul), HB616 (Price), HB784 (Keam), HB1381 (Adams), HB1598 (Jones).

The Senate has passed one redistricting reform bill, SB106 (Suetterlein). SB106 sets out criteria for redistricting, including respecting existing political boundaries (county, city, town, precinct) as much as is possible. Similar House versions (HB299-Watts and HB382-Rasoul) have already been put on ice in a House subcommittee, so SB106 may not have a long shelf life. VML supports SB106.

Staff contract: Mike Polychrones, mpolychrones@vml.org

Update on other bills affecting local government

SB211 (Stuart) authorizes localities to show in their comprehensive plan recommendations for groundwater and surface water availability, quality and sustainability. The bill has been advanced to the Senate floor.

SB784 (Obenshain) had the goal of amending the building code for commercial buildings and structures located in rural areas, keeping in mind where the structures are located. The bill failed in Senate General Laws & Technology.

SB451 (Dance) would allow local governments the authority to require abatement of criminal blight on real property. It would put another tool in the tool box for localities to attempt to clean up blighted properties. The bill has passed the Senate. The House Counties, Cities & Towns Committee reported its version of the bill (HB594-Carr) on Feb. 22, so it will be voted on next week. The bills were request by from the City of Richmond Police Department as a way to deal with hotels that have significant drug and prostitution issues. The bills were a recommendation of the Housing Commission.

HB818 (Herring), HB1097 (Levine), HB1098 (Levine), HB1098 (Toscano) are all bills related to monuments that died a quick death in Subcommittee #1 of House Counties, Cities and Towns this week.

VML contact: Michelle Gowdy, mgowdy@vml.org

House bill to exempt new businesses from taxes fails in committee

House Finance Subcommittee #3 voted to “pass by indefinitely” HB 471 (Reid), a bill to exempt new small businesses from (i) payment of unemployment, sales and use, and local license taxes and (ii) certain registration and reporting requirements with the State Corporation Commission. The bill would define an eligible business as any business that has its principal place of business in the Commonwealth, has not been in existence for more than five years, and has fewer than six employees or has paid less than $5,000 for the purchase or lease of business personal property, including machinery and tools and merchants’ capital, since its inception.

VML and VACo opposed the measure, pointing out that the definition of small business was large enough to include individuals or small firms providing expensive professional legal or other services, and was not limited to the entrepreneur operating a part-time or start-up business out of his or her garage.

VML contact: Neal Menkes, nmenkes@vml.org

School board authorization of legal actions passed by

The bill (SB440 – Wexton) that would have authorized elected school boards to initiate legal action against other governmental entities without first consulting with the local governing body was passed by indefinitely in committee. VML opposed the bill.

VML contact: Janet Areson (jareson@vml.org)

House Finance Committee short circuits communications tax

HB 1051 (Watts) would have applied the communications sales and use tax to services related to the streaming of audio and visual data, and prepaid calling. The bill also clarified that the tax applied to communications services regardless of whether customers are charged a subscription fee, a periodic fee, or an actual usage fee. The General Assembly enacted the tax in the 2006 Session. In recent years, tax collections have consistently fallen short of the $440.0 appropriation, resulting in fewer dollars going back to local governments. The disconnect between appropriations and tax collections is greater than 10.0 percent.

The House Finance Committee voted unanimously to “pass by the bill indefinitely” for the remainder of the 2018 Session. As part of a long-term strategy, local officials should speak to delegates and senators to support next year’s legislative effort. Technology is changing, and the items that can be taxed (i.e., telephone lines and pagers) are steadily declining in use. Localities will continue to see a decrease in dollars until the tax base is adjusted to reflect how technology is actually used.

VML contact: Neal Menkes nmenkes@vml.org

Senate Finance Committee pushes LODA bills to next year’s session

The Senate Finance Committee voted Jan. 30 to “carry over” several Line of Duty Act bills until the 2019 Session. The idea, as expressed by Committee Co-chair Emmett Hanger, is to reactivate a joint legislative study group to determine additional reforms. The bills carried over include SB56 (DeSteph), SB468 (Reeves), SB494 (Carrico), and SB904 (Petersen).

The Committee also voted unanimously to carry over SB498 (Carrico), which would have required a locality that participates in the Virginia Retirement System and that has two or fewer public safety officers eligible for supplemental retirement benefits to provide such benefits for such employees. The Commonwealth would fund one-half the cost of the supplement.

VML contact: Neal Menkes nmenkes@vml.org

Federal infrastructure plan may crumble

It may turn out to be the “Mission Impossible” assignment to impossible for any secret agent.

How can $200.0 billion in federal money that is stretched over a ten-year period stimulate an additional $1.3 trillion in spending? How can state and local governments and private companies partner with the federal government to address the nation’s infrastructure demands for highways, rural broadband service, drinking water systems, or hospitals?

The obstacles are many. On the federal side, money would have to be found by cutting programs that could include dollars already designated for capital spending by the U.S Department of Transportation and the Army Corps of Engineers.

Don’t look for a burst of new federal revenues to pay for infrastructure improvements. A U.S. Chamber of Commerce proposal made in January to raise the federal gasoline tax (that was last increased during the Clinton Presidency) would garner nearly $400.0 billion over a decade, but has gained no traction in a bitterly partisan Washington, D.C. In addition, in case anyone has forgotten, the Continuing Resolution that funds the federal government expires on February 8, and the Congressional Budget Office is predicting that the country’s mounting debt will bump against the authorized “ceiling” a month earlier than expected because the Treasury is taking in less revenue than forecasted.

Outside of the nation’s capital, the new federal tax changes could significantly lower the amount of federal taxes that state and local taxpayers can deduct from their tax bill, meaning states and localities will have a harder time raising revenue to support infrastructure spending. Also, a flip in federal to state matching rates could end up with the federal government paying 20.0 percent of a project cost as opposed to the current 80.0 percent matching rate for road projects or the 50.0 percent federal matching for transit capital projects. Do states and local governments have the political appetite to raise taxes under this scheme?

As for the private sector, if past public-private partnerships are an indicator, their interest targets projects that promise a steady, reliable, long-term cash flow that is backed by the enforcement powers of government. Think automated toll roads. Other infrastructure projects that lack a revenue component or can’t meet the steady and reliable criteria are less attractive for private investment.

In Virginia, infrastructure needs encompass local schools, roads and street, bridges and tunnels, broadband, stormwater, and transit. These capital challenges are formidable and will require the sweat and muscle of all levels of government. But, the federal government must lead the way.

VML contact: Neal Menkes, nmenkes@vml.org

VML legislative staff and assignments

Michelle Gowdy – Local government authority, planning and zoning, legal matters, housing, Freedom of Information, telecommunications and technology. mgowdy@vml.org; 804-523-8525

Janet Areson – Health and human services, and the state budget. jareson@vml.org; 804-523-8522

Mike Polychrones – Environment, land use, natural resources, elections and transportation policy. mpolychrones@vml.org; 804-523-8530

Neal Menkes – Taxation and finance, the state budget, transportation funding, retirement, education funding and community and economic development. nmenkes@vml.org; 804-523-8523

Roger Wiley (under contract) – Courts, criminal law, civil law, and procurement. roger@heftywiley.com; 804-780-3143

Chris LaGow (under contract) –Insurance and workers’ compensation. chris@lagowlobby.com; 804-225-8570