Marshall plan arms Virginians for land-use fights

By Kenric Ward | Watchdog.org Virginia Bureau

RICHMOND, Va. — From Lynchburg to Norfolk to Rappahannock, local officials are heaping dirt on a bill that would expose them to costly citizen litigation in zoning and land-use disputes.

Most radically, HB1219, by House Delegate Bob Marshall, would strip city and county ordinances of the presumption of constitutionality.

In a new report, several municipalities complain about Marshall’s plan. Following are key concerns, paired with responses from Mark Fitzgibbons, a constitutional lawyer who organized “pitchfork protests” on behalf of embattled farmer Martha Boneta against Fauquier County.

Rappahannock County says the personal liability clause in HB 1219 will reduce its staff’s willingness to enforce laws.

Response: “Staff liability occurs only for intentional violations, not errors in judgment.”

Rockingham fears that claims won’t be covered by insurance.

Response: “Property owners do not generally have litigation insurance to cover when counties overreach and violate constitutional rights in zoning enforcement.”

Lynchburg says HB1219 will encourage lawsuits.

Response: “Only under the standards of the law would citizens be able to sue, and any frivolous lawsuits would be quickly dismissed. Put another way, the current lack of liability for localities ‘encourages’ unconstitutional enforcement against citizens.”

Lynchburg also asserts that the bill’s clause — “unreasonable restriction on the free exercise of rights” — is vague.

Response: “The ‘unreasonable restriction’ phrase is used by localities to regulate in many instances. The term has been addressed in many Supreme Court decisions, so it is a verifiable standard.”

Norfolk predicts that the burden of proof on localities will make it more difficult for them to defend actions in court.

Response: “Agreed. Lawsuits would be the result of localities initiating enforcement actions in violation of the Constitution, so the locality should have the burden.”

The report concludes that “financial hardship from awards of damages could be crippling.”

Response: “Welcome to the world that citizens face.”

Marshall, R-Manassas, said, “Citizens who challenge onerous land use decisions must be put on an equal playing field with officials who impose them.”

Boneta, who was threatened with thousands of dollars in county fines for hosting a children’s birthday party and advertising pumpkin carvings on her farm, is suing Fauquier for $2 million in a long-simmering dispute.

Fitzgibbons said Marshall’s measure “reverses a ghastly 1981 Virginia Supreme Court decision that gave local ordinances a presumption that they are constitutionally valid, even though such ordinances are not enacted through the constitutional structure of two legislative chambers and a threat of executive veto.”

“If the costs for their unlawful acts are hard for localities to swallow, then how could – and why should – individual land owners absorb such costs? This is a remedies bill of parity and fairness,” Fitzgibbons told Watchdog.org.

In an additional assist to landowners, HB1219 also grants whistleblower protections to local government workers who report violations of the law by their employers.

“This bill will force localities to be more attentive, which will reduce the need for litigation,” Fitzgibbons predicted. “Just as citizens face consequences when they do not follow the law – which is further incentive to follow the law – HB 1219 imposes consequences on local government.”

Marshall’s bill is not yet scheduled for a committee hearing.

Kenric Ward is chief of Watchdog.org’s Virginia Bureau. Contact him at kenric@watchdogvirginia.org or at (571) 319-9824. @Kenricward

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