Friday, February 7, 2014

HB 1219: Property Rights Remedies

Patricia Evans shared this e-mail (apparently not an article) from Mark Fitzgibbons, edited slightly for format. Here's the link to HB 1219:

http://lis.virginia.gov/cgi-bin/legp604.exe?141+ful+HB1219

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From Mark Fitzgibbons:

HB 1219 Property Rights Remedies Bill Hearing was Wednesday in the House Courts of Justice Sub-Committee: Constitutional Law...

The subcommittee no-motioned HB 1219, so they didn't vote for it or against it.  Some confusion about whether the Morris remedies bill competes, but the subcommittee clearly saw there's a problem that needs to be addressed, perhaps through amendments to the Morris bill, HB 1084: http://lis.virginia.gov/cgi-bin/legp604.exe?ses=141&typ=bil&val=hb1084  Bob Marshall will try to amend the Morris bill, which provides remedies for unconstitutional conditions as defined in last year's Koontz case in the US Supreme Court, a good bill, but too cautious to protect most people from most zoning abuses.

HB 1219 scares the daylights out of the anti-property rights bureaucrats who wish to remain above the law. We need to keep pushing this to make lawbreaking bureaucrats know that we're coming after them.


Chairman Albo and Delegate Morris,
 
Thank you for a good hearing yesterday on HB 1219, the property rights remedies bill introduced by Delegate Marshall that has gained national attention at The Drudge Report, Fox News, CNSNews, and other media outlets.  I am of course disappointed with the no motion, but I understand that legislators may need more information.  Certainly, the general public really, really likes HB 1219 once they know what it does.
 
Following this session, I hope that I can sit down with you and others to discuss the following:
 
1.  HB 1084 was discussed at the hearing.  It is a marvelous and much-needed bill following last year's decision in the Koontz case.  Koontz was limited to a specific set of circumstances involving what Justice Alito called "extortive" conditions placed on those seeking zoning permits.
 
2.  HB 1219, which is based in some part on 42 USC 1983 and 1988, does not conflict with HB 1084, and covers other types of abuses of zoning powers.  For example, the abuses inflicted on Martha Boneta and Jay Sherrill, who both testified, would not be remedied by HB 1084, nor would the abuses inflicted on Joseph Ferguson whom I referenced (represented by The Rutherford Institute, copied) be remedied.
 
3.  Since HB 1084 applies to the permit process only, or that is how I read it, other zoning abuses still need to be remedied, including abusive ordinances that do not involve permits, or abusive enforcement of ordinances.  Martha Boneta's being charged with a violation of law for a birthday party is one example of abusive enforcement that HB 1084 would not remedy.
 
4.  42 USC 1983 and 1988 do not hamper effective law enforcement, nor would HB 1219.  Those federal statutes are used against police as well as other officials, and police certainly must act with more urgency and danger than zoning officials.
 
5.  HB 1084 addresses quite well "unconstitutional conditions" as defined by Justice Alito in Koontz, but would not overturn the 1981 VA Supreme Court decision giving local ordinances a presumption of constitutional validity.  I urge that the General Aseembly not make people such as Martha, Jay, or Mr. Ferguson spend the hundreds of thousands of dollars to litigate up through the U.S. Supreme Court before that mistake is corrected.  Local ordinances are not passed by going through the constitutional structure of two legislative chambers and threat of executive veto, and do not merit the presumption.
 
6.  There was not time to address this issue in a short hearing, but Virginia's Code is set up to allow localities to discriminate.  Below is from the outline of my speech at the Republican Advance describing how the Code delegates authority to allow localities to use subjective standards violating due process and evidentiary guarantees, which as lawyers you'll recognize is a problem.  The Code even allows courts to disregard evidence after citizens have gone through an expensive administrative appeals process.  The "local" Code had its last major modification in 1962, five years before Loving v. Virginia overturning Virginia's ban on interracial marriage.
 
Last year's "Pitchfork Protests" bringing national attention to the abuses of local land use powers against farmers in Virginia was just the beginning.  Both Martha and I have had our properties vandalized since taking on our county government and exposing their abuses.  If Koontz dealt with "extortive" conditions, we are dealing with base thuggery.
 
We will continue to take our case to the public in Virginia and nationally, and I hope that the General Assembly will act to protect citizens.  Local government "control" needs better controls.
 
Kind regards,
 
Mark Fitzgibbons
703 392 7676
 
Please read: From my outline on Virginia law delegating authority to localities:
 
5. The law

Virginia Constitution Article VII – Local Government

Section 3. Powers.   The General Assembly may provide by general law or special act that any county, city, town, or other unit of government may exercise any of its powers or perform any of its functions . . .


The Dillon Rule – local governments derive their power from the Commonwealth – the General Assembly

Virginia Code § 15.2-2200. Declaration of legislative intent.

. . . to encourage localities to improve the public health, safety, convenience, and welfare of their citizens . . . and the needs of agriculture, industry, and business be recognized in future growth . . . that agricultural and forestal land be preserved . . .


§ 15.2-2283. Purpose of zoning ordinances.

Zoning ordinances shall be for the general purpose of promoting the health, safety or general welfare of the public . . . (vii) to encourage economic development activities that provide desirable employment and enlarge the tax base; (viii) to provide for the preservation of agricultural and forestal lands . . .

VERY SUBJECTIVE STANDARD

§ 15.2-2255. Administration and enforcement of regulations.

. . . the governing body shall be responsible for administering and enforcing the provisions of the subdivision regulations through its local planning commission or otherwise.

ZERO STANDARDS OF DUE PROCESS, EVIDENCE IN ADMINISTRATION AND ENFORCEMENT

§ 15.2-2308. Boards of zoning appeals to be created; membership, organization, etc.

. . . The board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the locality and general laws of the Commonwealth . . .

ZERO STANDARDS OF REVIEW

‘KANGAROO COURT’

§ 15.2-2309. Powers and duties of boards of zoning appeals.

. . . The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision . . .

DO WE SEE A PATTERN?

§ 15.2-2312. Procedure on appeal.

. . . The concurring vote of a majority of the membership of the board shall be necessary to reverse any order, requirement, decision or determination of an administrative officer or to decide in favor of the applicant on any matter upon which it is required to pass under the ordinance or to effect any variance from the ordinance . . .

THE DECISION OF THE LOCAL ZONING BUREAUCRAT IS GIVEN THE PRESUMPTION OF LEGALITY.   WHY???

§ 15.2-2314. Certiorari to review decision of board.

. . . the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take evidence . . .

BUT

findings and conclusions of the board of zoning appeals on questions of fact shall be presumed to be correct.

EVEN BY THE TIME A CITIZEN MAY GET TO A COURT, IF HE OR SHE HAS THE MONEY TO FIGHT, THE COURT DOES NOT NEED TO TAKE EVIDENCE, AND THE BZA FINDINGS ARE PRESUMED CORRECT


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