Thursday, January 23, 2014
VACo opposes attorney’s fees bills up for consideration on Monday
VACo opposes HB 1084 (Morris) and SB 578 (Obenshain), which have major implications for land use decision making in Virginia. The bills would impose new requirements for the award of attorney fees to parties that are successful in challenging local land use decisions.
The bills, which will be conformed to the language of HB 1084, are likely to be considered in the House Courts of Justice Subcommittee on Civil Law and the Senate Courts Committee on Monday, January 27.
Please act now to explain the major land use implications of these bills to your legislators.
SB 578 and HB 1084 would impose new requirements for the award of attorney fees to parties that are successful in challenging local land use decisions. Local officials should pay special attention to HB 1084 as Senator Mark Obenshain is going to conform SB 578 to this bill.
HB 1084 is a request from the Homebuilders Association of Virginia (HBAV). HB 1084 allows attorney fees in cases in which a condition on a rezoning or permit has been found to be unconstitutional. That is already true in federal courts, but this bill would extend it to cases brought in state court under the Virginia Constitution. HBAV contends that the bill is simply an effort to codify the U.S. Supreme Court decision last year in Koontz v. St. Johns River Water Management District; however, the bill goes considerably beyond what the Koontz decision requires.
- These bills allow a rezoning applicant to agree to a condition, then challenge that condition in court, even if the applicant proposed the condition without ever being asked to do so by the locality.
- There’s no requirement in these bills for applicants to object to a condition requested by the locality during consideration of the application in order to be able to challenge it later in court; the applicant can accept the condition, get approval then sue, perhaps as much as two years later.
- The bills violate the separation of powers doctrine by directing the court to order specific legislative action by the local governing body, rather than remanding the matter for further legislative action consistent with the court’s decision.
- The bills go beyond anything dictated by the U.S. Supreme Court decision in Koontz v. St. Johns Water Management District. The Koontz case only says that approval with an unconstitutional condition and denial for failure to agree to an unconstitutional condition are both compensable. Koontz never agreed to the conditions he challenged in court.
- The bills will actually discourage some zoning approvals, because localities will find it less risky simply to deny requests rather than negotiating conditions that applicants can challenge later. Do we really want to return to the zoning litigation wars of 20 years ago?
- The bills are too broad. They aren’t limited to rezonings or conditional use permits, but also apply to administrative approvals (e.g., site plans, building permits) over which a locality has no discretion. There’s already an easy legal remedy (mandamus) to compel approval of those in circuit court.
- Awarding attorney fees to successful litigants has never been the rule in Virginia. There’s very little precedent in Virginia cases to guide our Virginia courts in making that determination. The bills should at least require them to follow federal case law in determining what attorney fees are reasonable.
House Courts of Justice Committee (HB 1084): Albo (Chairman), Kilgore, Bell, Robert B., Cline, Gilbert, Miller, Loupassi, Villanueva, Habeeb, Minchew, Morris, Leftwich, Chafin, Adams, Campbell, Watts, Toscano, Herring, McClellan, Hope, Keam, Mason
VACo Contact: Phyllis Errico, CAE