15.4 Legal Principles of Special Importance to virginia Local Governments

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

15.4 LEGAL PRINCIPLES OF SPECIAL IMPORTANCE TO VIRGINIA LOCAL GOVERNMENTS

15.401 Constitutional Provisions. Virginia constitutional provisions affecting local government are found in article VII. Article VII, section 10 creates rules governing borrowing of money or creation of debt by localities:

1.	Counties may only create debt if approved by voters in a referendum.
2.	Cities may borrow up to 10 percent of assessed value of real estate without voter approval.

Certain financing approaches, such as "lease purchases" or "borrowing subject to annual appropriation," have been used to avoid borrowing being characterized as long-term debt.

Article VIII sets out rules governing local school boards.

Individual rights contained in Virginia's Bill of Rights are interpreted as being co-extensive with jurisprudence for the equivalent Amendments to the United States Constitution.

The First, Fifth, and Fourteenth Amendments of the United States Constitution differ in some measure from Virginia Bill of Rights because of the absence of any concept of "substantive due process" in Virginia (Fourteenth Amendment, United States Constitution); reference to duty of all Virginians to exercise "Christian forbearance" (Article I, § 16, religious freedom Virginia Constitution) and a Virginia concept of just compensation for damages to property apart from whether any actual governmental "taking" occurs (Fifth Amendment, United States Constitution).

15.402 Government Powers as Limited by "Dillon's" Rule. Local governments in Virginia are governments of limited powers derived exclusively from powers that are:

1. Expressly conferred on them by the General Assembly (through statute, charter, or related regulations) (for example, no statutory authority for local governments in Virginia to enter into collective bargaining agreements or impose local gun controls); or

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2.	Are necessarily implied from one of the specific grants of power; or
3.	Are powers essential and indispensable to governance.

"Dillon's Rule" as a structural legal concept was articulated by an Iowa judge and was widely adopted in eastern states before the start of the 20th century. ³⁵ "Dillon's Rule" articulates a system of limited powers for localities, contrasts with the "home rule" concept used in many western states where local governments legally have all powers reasonably necessary to accomplish their responsibilities unless any local act is specifically precluded by the state legislature.

The broadest power specifically granted to localities is the "police power," which allows adoption of measures necessary to promote the "health, safety and general welfare" of its inhabitants. ³⁶ For example, comprehensive state liquor regulation by the State Alcohol Beverage Control Board does not preempt localities' police power under its zoning authority to regulate hours of operation for restaurants serving alcohol. ³⁷

15.403 Rules of Interpretation for Statutes That Govern Any Grant of Governmental Power. In applying "Dillon's Rule" to a challenge to a government action, Virginia courts' first look at the statutes within the Code of Virginia to determine whether a power has been expressly granted to a locality or is necessarily implied from an express grant of authority. ³⁸ Courts will not imply the existence of a power unless failure to do so would render the purpose or object of a statute ineffective. ³⁹

In rendering a decision based on statutory language, courts follow these interpretational principles:

1. First, Virginia courts determine whether the General Assembly intended to grant a power to a local government

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	by looking at the "plain meaning" of the language in the statute. 40
2.	Second, courts may not ignore actual statutory language. 41 Courts must presume that every part of a statutory scheme has some purpose or effect and every part must be given meaning if at all possible. 42 That means that the entire body of legislation and the statutory scheme must be reviewed in order to "give the fullest possible effect to the legislative intent embodied in the entire statutory enactment." 43
3.	Third, when several state statutes or local laws affect the same issue, courts must, if at all possible, "harmonize" all of them. 44 Accordingly, if both a state statute and a local ordinance ". . .can stand together and be given effect, it is the duty of the courts to harmonize them and not nullify the ordinance." 45

Judicial application of the Dillon rule in ways that void local government undertakings has been variable and largely unpredictable. ⁴⁶

Stallings⁴⁷ began a line of Supreme Court cases resolving the benefit of doubt in favor of local government authority against Dillon's rule challenges, at least with regard to land use matters. ⁴⁸

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The continuing vitality of Dillon's rule as an impediment to local initiatives or creativity is evident in the circuit courts. ⁴⁹ More recently, the Virginia Supreme Court ruled in Arlington County v. White⁵⁰ that the county was not authorized to offer domestic partners health benefits coverage.

Legislative intent is largely irrelevant under Dillon's rule unless the statutory language is impossible to interpret. Moreover, evidence of a governing body's motives are irrelevant in determining the validity of local ordinances: ". . .courts are not concerned with motives which affect members of a legislative body in enacting a law, but in the results of their action. Bad motives might inspire a law which applied on its face proved valid and beneficial while a bad and invalid law might be and sometimes is passed with good intent and the best of motives." ⁵¹

15.404 Ultra Vires Doctrine. The ultra vires doctrine in Virginia is a logical corollary to Dillon's rule that holds that any actions exercised outside the scope of authority conferred upon a governmental body are void. ⁵²

The ultra vires doctrine functions as a defense available to the governmental body seeking to avoid the consequences of some decision that is outside its authority. ⁵³

The ultra...