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
"
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
--
"Educate
and inform the whole mass of the people. They are the only sure reliance for the
preservation of our liberty." - Thomas Jefferson "
