General Assembly Session Update on Bills of Interest

March 15, 2016

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The following is a report on bills that received final action by the General Assembly shortly before adjournment sine die on March 11. VACo staff soon will develop a more comprehensive report on actions by the 2016 General Assembly affecting local governments. Be on the lookout for VACo’s Annual Legislative Summary.

Please do not hesitate to contact VACo’s office if you have any questions regarding actions by the 2016 General Assembly.

Bill extending annexation moratorium passes

VACo supported companion measures, HB 945 (Wilt) and SB 309 (Hanger), which extend the current moratorium on city annexations and county immunity actions by six years to 2024. The bill also directs the Commission on Local Government to evaluate the structure of cities and counties in the Commonwealth and the impact of annexation upon localities. The Commission shall issue its findings and recommended policy changes to the General Assembly no later than December 1, 2018.

Bill requiring Publication of meeting agendas carried over

VACo opposed HB 757 (Robert Bell), which requires a local or regional public body to disseminate to the public an agenda for a public meeting at least seven days prior to the meeting or 24 hours prior to an emergency meeting. The bill also requires such body to provide at least five minutes for public comment on each agenda item at the public meeting. HB 757 was carried over to the 2017 session in the House Counties, Cities and Towns Committee.

Electronic publication of legal notices carried over

The following bills relating to publication of legal notices were carried over to the 2017 session in the House Counties, Cities and Towns Committee:

HB 129 (Richard Bell) provides localities alternatives to publication in a newspaper of general circulation in the locality for legal ads and other notices of proposed action. These alternatives include publication in at least two of the following forms of publication: (i) in a newspaper of general circulation in the locality, including such newspaper’s online publication, if any; (ii) on the locality’s website; (iii) on any public access channel operated by the locality, to be aired during prime-time programming and at least two other times during the day; (iv) using any automated voice or text alert systems used by the locality; or (v) posting at the local public library.

HB 286 (Head) allows localities with a population of 50,000 or greater to meet certain legal notice requirements by advertising on local radio or television stations or publishing on the locality’s website instead of publishing in a newspaper of general circulation.

HB 1078 (Boysko) provides that in any town within the Counties of Fairfax, Loudoun and Prince William that does not have a newspaper of general circulation located within its boundary, legal notices may be published on the locality’s website instead of in a newspaper having general circulation in the locality.

Bill allowing towns greater than 40,000 to become cities carried over

HB 192 (Minchew), opposed by VACo, provides an exception to the current moratorium on the granting of new city charters for towns with a population of at least 40,000 desiring to transition to city status. The bill is carried over to the 2017 in the House Counties, Cities and Towns Committee.

Local government employee grievance bill defeated

VACo opposed HB 1293 (Hugo), which would have provided that qualifying grievances shall advance to either an impartial panel hearing or a hearing before an administrative hearing officer as agreed upon by both parties, as set forth in the locality’s grievance procedure; however, if both parties cannot come to an agreement, an impartial panel shall be used. The bill was tabled by voice vote in the House Counties, Cities and Towns Committee.

Shorten review time for plan review

SB 735 (Obenshain) was defeated in the Senate Local Government Committee on a 9-3-1 vote. The bill would have shortened from 60 days to 30 days the period within which a planning commission is required to act on a plat officially submitted for approval.

Proffer bill signed by the Governor

As introduced, SB 549 (Obenshain) severely curtailed localities ability to deal with the added community infrastructure needs created by rezoning through the proffer system. Under the original language of the bill, proffer discussions and agreements would have come to a screeching halt. VACo and other local government advocates met with representatives of the Home Builders, the Patrons of the bill and other legislators and made significant improvements to the bill. The bill as passed and signed by the Governor will significantly impact localities.

A number of localities requested the Governor to veto the bill and in addition to these requests VACo met with the Governor’s staff to request an amendment to the bill that would have provided a waiver for developers who wanted to offer something that might otherwise be deemed unreasonable under the language of the bill. In the end, the Governor signed the bill as passed by both chambers and the provisions will become law in July.

The legislation as signed by the governor includes the following substantive changes from the introduced bill:

Eliminated unworkable nexus provision: Amended to strike the requirement that the impact for which the proffer is accepted be “uniquely” attributable to the new residential development, leaving “specifically attributable” as the new standard for residential development proffers.

Exemption of County Metro Service Districts and other transit-centered, dense development areas: Provisions were added to exempt entirely from the bill certain “small area comprehensive plan” areas centered around Metro stations or other mass transit facilities where more dense development is planned.

Public Parks and recreational facilities added to offsite proffer provisions: Amended to include parks and recreational facilities, including playgrounds, in the categories of public facilities for which off-site proffers can apply, in addition to public safety, transportation and public school facilities. The bill does not limit categories of public facilities for on-site proffers.

Award of attorney’s fees and compensatory damages: Amended to make award of attorney’s fees against the locality discretionary for the court. Compensatory damages were removed from the bill.

Time for local governing body reconsideration extended: Amended to provide 90 days for local governing body review and reconsideration to comply with a court order, instead of 60 days.

Duplicative public notice and hearing requirement waived: The bill was amended to exempt local governing body consideration upon remand from additional public notice and hearing requirements. Since the conditional rezoning has already gone through the planning commission and governing body public hearing processes, and at this point a court proceeding, requiring more public hearings and notice was not necessary for the governing body to address the court-ordered remedy.

Overbroad limitation on building materials/design features stricken: §15.2-2305.5, which would have imposed severe restrictions on the ability of localities to accept proffers related to building materials and design, was removed from the bill.

Bill amended to have only prospective application: Enactment clause 3 was added to make it clear that the bill only applies prospectively to rezoning applications filed on or after July 1, 2016.

Charter school initiative defeated in Senate Committee

On February 23 the Senate Privileges and Elections Committee rejected HJR 1 (Robert Bell) and HB 3 (Robert Bell) on a 7-5-1 vote. The Senate Committee took these actions after HJR 1 and HB 3 were passed by the House. Shortly before crossover, the Senate defeated companion measures SJR 6 (Obenshain) and SJR 93 (Obenshain).

All initiatives to change Virginia’s Constitution allowing for approval of charter schools by the State Board of Education have been defeated.

The only related initiative that passed the General Assembly was SB 734 (Obenshain), which makes several changes to the provisions relating to the approval by a local school board of a charter school. An earlier version of the bill, which VACo opposed, had a provision that would have allowed the state Board of Education to override a local decision to deny approval of an application for a charter school.

Bill establishing Workforce Credential Grant Fund passes

HB 66 (Byron) and SB 576 (Ruff) are identical bills that the General Assembly passed and the Governor recently signed in a ceremony that took place on March 11 with VACo’s President Judy Lyttle in attendance. VACo supported this legislation, which establishes the New Economy Workforce Credential Grant Fund and Program, to be administered by the State Council of Higher Education for Virginia. The program’s chief purpose will be the distribution of funds to certain public institutions of higher education and other educational institutions to provide grants to Virginia students who complete certain noncredit workforce training programs at the institution and subsequently attain a relevant noncredit workforce credential. In its final budget the General Assembly approved $12.5 million to support this program.

Legislation will require Board of Education to establish ‘Profile of a High School Graduate’

Companion bills HB 895 (Greason) and SB 336 (Miller) passed the General Assembly. VACo supported the bills, which require the Board of Education (BOE) to develop a “Profile of a Virginia Graduate.” The purpose of the profile is to identify the knowledge and skills that students should attain during high school in order to be successful contributors to the economy of the Commonwealth. Under this legislation, BOE is also required to develop new regulations that will embody requirements for graduating from high school by September 1, 2017. By the same date, BOE must issue a report on its recommendation to the General Assembly. A large part of the profile’s emphasis will be vocational and technical training, with particular attention to the “development of core skills in the early years of high school.” Under the legislation, new graduation requirements for high school students will include “multiple paths toward college and career readiness,” involving “internships, externships, and credentialing.”

Bill providing for part-time teachers advances

HB 279 (Byron) and SB 573 (Ruff) passed the General Assembly. These companion bills direct the Board of Education to provide for the issuance of temporary part-time teacher permits to qualified professionals with expertise and credentials in career and technical education areas who are recommended for the permit by employing school divisions.

Resolution would authorize Joint Committee to study key education issues

HJR 112 (Landes) passed the General Assembly. This is a study resolution to create a joint committee to study a variety of issues relating to public education over the next two years. The resolution directs the joint committee to establish different work groups that will be assigned to study “distinct subject matter areas.” The resolution also requires representatives on the work groups from a number of named organizations, including the Virginia Association of Counties.

Education Savings Account bill passes

By close votes in both chambers, the General Assembly passed HB 389 (LaRock), which allows parents of certain students with disabilities to apply to their resident school division for a Parental Choice Education Savings Account (ESA). Because HB 389 would have shifted money away from local school divisions and impose additional administrative burdens on local school divisions, VACo spoke in opposition to the bill when it was heard in committee. Before the bill reached the Senate floor, the Senate Finance Committee amended the bill by adding a reenactment clause, which will require the 2017 General Assembly to pass the bill a second time before it could go into effect.

Bill allowing Public/Private partnerships for stormwater passes without mandated waiver for railroads

SB 468 (Wagner) passed the General Assembly without a provision requiring local governments adopting stormwater utility fees to exempt fees “land owned by a railroad and located within it right-of-way. The bill allows localities imposing stormwater utility fees to establish public-private partnership programs with financial incentives to reward property owners for undertaking programs on their own to effectively manage and treat stormwater.

Bill requires plan for onsite wastewater treatment systems and wells

HB 558 (Orrock) has passed both chambers. The bill directs the State Health Commissioner to develop a plan for reducing and eliminating evaluation and design services by the Department of Health for onsite sewage systems and wells. The report is to be submitted to the Governor and the General Assembly by November 15, 2016.

‘Sanctuary’ jurisdictions

SB 270 (Garrett) and SB 507 (Black), as introduced, prohibited­ local governments from declaring themselves to be “sanctuary” jurisdictions or adopting any policy of refusing to enforce federal immigration laws or cooperating with federal immigration authorities. SB 270 provided that any locality violating this prohibition would be subject to loss of state funding, while SB 507 made a locality adopting any such policy liable for damages caused by any alien unlawfully present in the locality. Although no Virginia locality is currently a sanctuary jurisdiction, the bills subjected local taxpayers to potential financial loss in any case in which there might be disagreement over what federal immigration law required. Both bills passed the Senate early in the session, but SB 507 was left in the House Courts of Justice Committee’s Civil Law Subcommittee, and SB 270 was completely rewritten to apply only to deal with local and regional jails’ response to ICE detainers. As passed, it does little more than restate existing law. HB 481 (Marshall) was adopted in the same form as the revised SB 270. Both bills await action by the Governor.

Juvenile and domestic relations court forms

SB 417 (Vogel) allows local Department of Social Services employees to continue their long-standing practice of signing juvenile and domestic relations court forms asking for temporary custody, termination of parental rights, etc. VACo supported the bill that effectively overrules a recent opinion by a committee of the Virginia State Bar concluding that this was the unauthorized practice of law by non-lawyers. Despite considerable opposition, SB 417 passed both chambers and awaits the Governor’s signature.

Forfeiture of assets

HB 771 (Gilbert) and SB 457 (Carrico) are companion bills that alter the procedural requirements and increase the Commonwealth’s burden of proof for forfeiture of personal assets seized by law enforcement personnel because they have been used in commission of a crime. The bills were recommended by the Virginia Crime Commission and passed both chambers. The Governor signed HB 771.

Tort claims against a locality

SB 611 (Stanley) deals with the notice required in order to pursue a tort claim against a locality or a state agency. Current law requires written notice to be sent to a locality’s attorney, chief administrative officer or mayor within six months after the event giving rise to the potential claim. The introduced version of the bill would have allowed the claim to proceed if the locality had “actual” notice of the claim within 12 months. VACo worked with the Virginia Trial Lawyers Association to keep the deadline for notice at six months and to provide a clear definition of what would constitute actual notice and who within the locality would have to receive it. The resulting amended bill that passed the Senate and the House is far less problematic for local governments than the original version.

Personal liability by state and local employees

As introduced, SB 746 (Wagner) would have made state and local government employees who perform inspections to enforce civil statutes personally liable for damages if their actions were later found to exceed their authority. A substitute approved by the Senate solved some problems with the bill but created others. VACo opposed the bill and worked to muster state agency opposition as well. The House adopted a version recommended by the House Courts of Justice Committee’s Civil Law Subcommittee that rewrote the entire bill and made it completely inapplicable to local governments. The Senate accepted the House substitute, and the bill now awaits the Governor’s signature.

Bill banning local regulation of drone aircraft passes

HB 412 (Kilgore) imposes a ban until July 1, 2019, on local government regulation of the use of drone aircraft by private operators. After passing both chambers, the bill awaits action by the Governor. Various other bills dealing with drones were defeated.

Tax assessment appeals

HB 910 (Minchew) and SB 597 (Cosgrove) require a circuit court hearing a tax assessment appeal case to enter an order governing the confidentiality of taxpayer business information used as evidence in the case. As introduced, these identical bills also contained language allowing the landowner to have a trial by jury to decide the correct assessment. VACo opposed this jury trial provision and was successful in getting the bills passed without it.

Governor signs bills relating to siting of electric transmission lines

The Governor approved SB 136 (Favola) and HB 283 (Minchew), which authorize local governing bodies to be able to require a State Corporation Commission public hearing in the area of a proposed high voltage transmission line. This initiative was a part of the VACo 2016 legislative program and was considered and adopted by the Economic Development and Planning Steering Committee.

Limitations on local authority over communications towers to be studied

VACo opposed HB 1347 (Heretick), which would have severely limited local authority to regulate communications towers. The measure was directed to an interim stakeholder study by the House Commerce & Labor Committee. This is sweeping legislation that as introduced would have drastically impacted this entire area of law for local governments. The bill would have limited fees localities may charge in the permitting process, as well as rent a locality may charge for leasing public facilities. In addition, the bill would mandate the use of public rights of way these private facilities and limit the ability of localities to require environmental reviews, and other common regulatory requirements, during the permitting process. VACo opposed this legislation as both unnecessary and as an overreaching limit to local land use authority, and will be actively engaged in the stakeholder process over the interim.

Bill to revise LODA awaits Governor’s approval

HB 1345 (Jones) awaits final approval by the Governor after passing unanimously in both chambers of the General Assembly. This measure, which VACo supported, revises the Line of Duty Act (LODA). HB 1345 revises LODA by transferring overall administration of the Act to the Virginia Retirement System. The bill also transfers administration of health insurance benefits to the Department of Human Resource Management while also creating Line of Duty Health Benefits Plans. Additionally, individuals who are receiving continued health insurance coverage under LODA will cease to do so if the deceased or disabled person’s death occurred after July 1, 2017, and the beneficiary is eligible to receive benefits under Medicare. Most provisions of HB 1345 have a delayed effective of date July 1, 2017. The one exception to the delayed effective date is a provision requiring nonparticipating employers to pay their pro rata share of estimated implementation costs to the Virginia Retirement Systems and the Department of Human Resource Management.

VACo Contacts: Jim Campbell, CAE; Dean Lynch, CAE; Larry Land, CAE; Beau Blevins and Phyllis Errico, CAE

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