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2011 SESSION
11103675DWhereas, under Article I of the Constitution of Virginia, the declaration of rights is made by the people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity as the basis and foundation of government; and
Whereas, Article I, Section 1 provides that all power is vested in, and consequently derived from, the people, and that magistrates are their trustees and servants and at all times amenable to them; and
Whereas, Article 1, Section 5 provides that the legislative, executive, and judicial departments should be separate and distinct; and
Whereas, this system that is commonly referred to as the system of checks and balances was established by our founding fathers on the power of government; and
Whereas, Article 1, Section 11 provides that no one shall be deprived of life, liberty, or property nor shall their property be taken or damaged without due process of law; and
Whereas, to secure all of these guarantees, the General Assembly declares these rights available for all of its citizens; and
Whereas, there is a need to reaffirm the rights of citizens when they are engaged in litigation with state and local government entities; now, therefore,
Be it enacted by the General Assembly of Virginia:
1. That §§ 2.2-4007.03, 2.2-4009, 2.2-4025, 2.2-4026, 2.2-4028, 2.2-4029, 8.01-195.3, 8.01-246, 15.2-2285, 15.2-2314, and 25.1-245 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 1-219.2 as follows:
§ 1-219.2. Limitation on presumption of official regularity or government correctness in certain appeals.
There shall be no presumption in favor of official regularity and correctness for a state entity in any trial de novo instituted under Article 5 (§ 2.2-4025 et seq.) of the Administrative Process Act (§ 2.2-4000 et seq.) or for a locality or local government entity in any trial de novo instituted pursuant to § 15.2-2285 or 15.2-2314.
§ 2.2-4007.03. Informational proceedings; effect of noncompliance.
A. In the case of all regulations, except those regulations exempted by § 2.2-4002, 2.2-4006, or 2.2-4011, the proposed regulation and general notice of opportunity for oral or written submittals as to that regulation shall be posted on the Virginia Regulatory Town Hall and published in the Virginia Register of Regulations in accordance with the provisions of subsection B of § 2.2-4031. In addition, the agency may, in its discretion, (i) publish the notice in any newspaper and (ii) publicize the notice through press releases and such other media as will best serve the purpose and subject involved. The Register and any newspaper publication shall be made at least 60 days in advance of the last date prescribed in the notice for such submittals. All notices, written submittals, and transcripts and summaries or notations of oral presentations, as well as any agency action thereon, shall be matters of public record in the custody of the agency.
B. If an agency wishes to change a proposed regulation before adopting it as a final regulation, it may choose to publish a revised proposed regulation, provided the latter is subject to a public comment period of at least 30 additional days and the agency complies in all other respects with this section.
C. In no event shall the failure to comply with the
requirements of this section be deemed mere harmless error for the purposes of § 2.2-4027.
§ 2.2-4009. Evidentiary hearings on regulations.
Where an agency proposes to consider the exercise of authority
to promulgate a regulation, it may conduct or give interested persons an
opportunity to participate in a public evidentiary proceeding; and the agency
shall always do so where the basic law requires a hearing. Evidentiary
hearings may be limited to the trial of factual issues directly related to the
legal validity of the proposed regulation in any of the relevant respects
outlined in § 2.2-4027 of this chapter.
General notice of the proceedings shall be published as prescribed in § 2.2-4007.01. In addition, where the proposed regulation is to be addressed to named persons, the latter shall also be given the same notice individually by mail or otherwise if acknowledged in writing. The proceedings may be conducted separately from, and in any event the record thereof shall be separate from, any other or additional proceedings the agency may choose or be required to conduct for the reception of general data, views, and argument pursuant to § 2.2-4007.02 or otherwise. Any probative evidence may be received except that the agency shall as a matter of efficiency exclude irrelevant, immaterial, insubstantial, privileged, or repetitive proofs, and may deny rebuttal, or cross-examination. Testimony may be admitted in written form provided those who have prepared it are made available for examination in person.
The agency or one or more of its subordinates specially designated for the purpose shall preside at the taking of evidence and may administer oaths and affirmations. The proceedings shall be recorded verbatim and the record thereof shall be made available to interested persons for transcription at their expense or, if transcribed by or for the agency, for inspection or purchase at cost.
Where subordinates preside at the taking of the evidence, they shall report their recommendations and proposed findings and conclusions that shall be made available upon request to the participants in the taking of evidence as well as other interested persons and serve as a basis for exceptions, briefs, or oral argument to the agency itself. Whether or not subordinates take the evidence, after opportunity for the submittal of briefs on request and such oral argument as may be scheduled, the agency may settle the terms of the regulation and shall promulgate it only upon (i) its findings of fact based upon the record of evidence made pursuant to this section and facts of which judicial notice may be taken, (ii) statements of basis and purpose as well as comment upon data received in any informational proceedings held under § 2.2-4007.01 and (iii) the conclusions required by the terms of the basic law under which the agency is operating.
§ 2.2-4025. Exemptions operation of this article; limitations.
A. This article shall not apply to any agency action that (i)
is placed beyond the control of the courts by constitutional or statutory
provisions expressly precluding court review, (ii) involves solely the internal
management or routine of an agency, (iii) is a decision resting entirely upon
an inspection, test, or election save as to want of authority therefor or claim
of arbitrariness or fraud therein, or (iv)
is a case in which the agency is acting as an agent for a court, or (v) encompasses matters subject by law to a
trial de novo in any court.
B. The provisions of this article, however, shall apply to
case decisions regarding the grant or denial of Temporary Assistance for Needy
Families, Medicaid, food stamps, general relief, auxiliary grants, or
state-local hospitalization. However, no appeal may be brought regarding the
adequacy of standards of need and payment levels for public assistance and
social services programs. Notwithstanding
the provisions of § 2.2-4027, the review shall be based solely upon the agency
record, and the court shall be limited to ascertaining whether there was
evidence in the agency record to support the case decision of the agency acting
as the trier of fact. If the court finds in favor of the party complaining of
agency action, the court shall remand the case to the agency for further
proceedings. The validity of any statute, regulation, standard or policy,
federal or state, upon which the action of the agency was based shall not be
subject to review by the court. No intermediate relief shall be granted under §
2.2-4028.
§ 2.2-4026. Right to trial de novo; venue; burden of proof.
Any person who is adversely affected
or aggrieved by and claiming the
unlawfulness of any regulation, or party aggrieved by and claiming unlawfulness
of a case decision a final
agency action and whether such action is exempted from the
procedural requirements of Article 2 (§ 2.2-4006 et seq.) or 3 (§ 2.2-4018 et
seq.) of this chapter, shall have a
right to the direct review
thereof a
trial de novo by an appropriate and timely court action
against the agency or its officers or agents in the manner provided by the
rules of the Supreme Court of Virginia. The burden shall be upon
the party claiming the unlawfulness of the agency final action by a
preponderance of the evidence. In the trial
de novo the findings and conclusions of the agency shall not be
entitled to a presumption of correctness or of official regularity. Actions
may be instituted in any court of competent jurisdiction as provided in §
2.2-4003, and the judgments of the courts of original jurisdiction shall be
subject to appeal to or review by higher courts as in other cases unless
otherwise provided by law. In addition, when any regulation or case decision is
the subject of an enforcement action in court, it shall also be reviewable by
the court as a defense to the action, and the judgment or decree therein shall
be appealable as in other cases.
§ 2.2-4028. Intermediate relief.
When judicial review a trial de novo is instituted
or is about to be, the agency concerned may, on request of any party or its own
motion, postpone the effective date of the regulation or decision involved
where it deems that justice so requires. Otherwise the court may shall,
on proper application and with or without bond, deposits in court, or other
safeguards or assurances as may be suitable, issue all necessary and
appropriate process to postpone the effective dates or preserve existing status
or rights pending conclusion of the review
proceedings if the court finds the same to be required to prevent immediate,
unavoidable, and irreparable injury and that the issues of law or fact
presented are not only substantial but that there is probable cause for it to
anticipate a likelihood of reversible error in accordance with § 2.2-4027 trial de novo. Actions by the court may include (i) the stay of
operation of agency decisions of an injunctive nature or those requiring the
payment of money or suspending or revoking a license or other benefit and (ii)
continuation of previous licenses in effect until timely applications for
renewal are duly determined by the agency.
§ 2.2-4029. Court judgments.
Unless an error of law
as defined in § 2.2-4027 appears, the court shall dismiss the review action or
affirm the agency regulation or decision. Otherwise, it may compel agency
action unlawfully and arbitrarily withheld or unreasonably delayed except that
the court shall not itself undertake to supply agency action committed by the
basic law to the agency. Where a regulation or case decision is found by the
court not to be in accordance with law under § 2.2-4027, the court shall
suspend or set it aside and remand the matter to the agency for further
proceedings, if any, as the court may permit or direct in accordance with law. When the
petitioner has proven by the
preponderance of the evidence that a regulation or case decision is not to be
in accordance with law, the court shall suspend or set it aside and remand the
matter to the agency for further proceedings, if any, as the court may permit
or direct in accordance with law. In granting any relief the court shall not
itself undertake to supply agency action committed by the basic law to the
agency.
§ 8.01-195.3. Commonwealth, transportation district or locality liable for damages in certain cases.
Subject to the provisions of this article, the Commonwealth
shall be liable for claims for money only accruing on or after July 1, 1982,
and any transportation district shall be liable for claims for money only
accruing on or after July 1, 1986, on account of damage to or loss of property
or personal injury or death caused by the negligent or wrongful act or omission
of any employee while acting within the scope of his employment under
circumstances where the Commonwealth or transportation district, if a private
person, would be liable to the claimant for such damage, loss, injury or death.
However, except to the extent that a transportation district contracts to do so
pursuant to § 15.2-4518, neither the Commonwealth nor any transportation
district shall be liable for interest prior to judgment or for punitive
damages. The amount recoverable by any claimant shall not exceed (i) $25,000
for causes of action accruing prior to July 1, 1988, $75,000 for causes of
action accruing on or after July 1, 1988, or
$100,000 for causes of action accruing on or after July 1, 1993, or $1 million for
causes of action accruing on or after July 1, 2011, or (ii)
the maximum limits of any liability policy maintained to insure against such
negligence or other tort, if such policy is in force at the time of the act or
omission complained of, whichever is greater, exclusive of interest and costs.
Notwithstanding any provision hereof, the individual immunity of judges, the Attorney General, attorneys for the Commonwealth, and other public officers, their agents and employees from tort claims for damages is hereby preserved to the extent and degree that such persons presently are immunized. Any recovery based on the following claims are hereby excluded from the provisions of this article:
1. Any claim against the Commonwealth based upon an act or omission which occurred prior to July 1, 1982.
1a. Any claim against a transportation district based upon an act or omission which occurred prior to July 1, 1986.
2. Any claim based upon an act or omission of the General Assembly or district commission of any transportation district, or any member or staff thereof acting in his official capacity, or to the legislative function of any agency subject to the provisions of this article.
3. Any claim based upon an act or omission of any court of the Commonwealth, or any member thereof acting in his official capacity, or to the judicial functions of any agency subject to the provisions of this article.
4. Any claim based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court.
5. Any claim arising in connection with the assessment or collection of taxes.
6. Any claim arising out of the institution or prosecution of any judicial or administrative proceeding, even if without probable cause.
7. Any claim by an inmate of a state correctional facility, as defined in § 53.1-1, unless the claimant verifies under oath, by affidavit, that he has exhausted his remedies under the adult institutional inmate grievance procedures promulgated by the Department of Corrections. The time for filing the notice of tort claim shall be tolled during the pendency of the grievance procedure.
Nothing contained herein shall operate to reduce or limit the extent to which the Commonwealth or any transportation district, agency or employee was deemed liable for negligence as of July 1, 1982, nor shall any provision of this article be applicable to any county, city or town in the Commonwealth or be so construed as to remove or in any way diminish the sovereign immunity of any county, city or town in the Commonwealth.
§ 8.01-246. Personal actions based on contracts.
Subject to the provisions of § 8.01-243 regarding injuries to person and property and of § 8.01-245 regarding the application of limitations to fiduciaries, and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued:
1. In actions or upon a recognizance, except recognizance of bail in a civil suit, within ten years; and in actions or motions upon a recognizance of bail in a civil suit, within three years, omitting from the computation of such three years such time as the right to sue out such execution shall have been suspended by injunction, supersedeas or other process;
2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;
3. In actions by a partner against another for settlement of the partnership account or in actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, within five years from the cessation of the dealings in which they are interested together; and
4. In actions upon any unwritten contract, express or implied, within three years, except to the extent such actions involve a claim for inverse condemnation, which shall be brought within five years.
Provided that as to any action to which § 8.2-725 of the Uniform Commercial Code is applicable, that section shall be controlling except that in products liability actions for injury to person and for injury to property, other than the property subject to contract, the limitation prescribed in § 8.01-243 shall apply.
§ 15.2-2285. Preparation and adoption of zoning ordinance and map and amendments thereto; appeal.
A. The planning commission of each locality may, and at the direction of the governing body shall, prepare a proposed zoning ordinance including a map or maps showing the division of the territory into districts and a text setting forth the regulations applying in each district. The commission shall hold at least one public hearing on a proposed ordinance or any amendment of an ordinance, after notice as required by § 15.2-2204, and may make appropriate changes in the proposed ordinance or amendment as a result of the hearing. Upon the completion of its work, the commission shall present the proposed ordinance or amendment including the district maps to the governing body together with its recommendations and appropriate explanatory materials.
B. No zoning ordinance shall be amended or reenacted unless the governing body has referred the proposed amendment or reenactment to the local planning commission for its recommendations. Failure of the commission to report 100 days after the first meeting of the commission after the proposed amendment or reenactment has been referred to the commission, or such shorter period as may be prescribed by the governing body, shall be deemed approval, unless the proposed amendment or reenactment has been withdrawn by the applicant prior to the expiration of the time period. In the event of and upon such withdrawal, processing of the proposed amendment or reenactment shall cease without further action as otherwise would be required by this subsection.
C. Before approving and adopting any zoning ordinance or amendment thereof, the governing body shall hold at least one public hearing thereon, pursuant to public notice as required by § 15.2-2204, after which the governing body may make appropriate changes or corrections in the ordinance or proposed amendment. In the case of a proposed amendment to the zoning map, the public notice shall state the general usage and density range of the proposed amendment and the general usage and density range, if any, set forth in the applicable part of the comprehensive plan. However, no land may be zoned to a more intensive use classification than was contained in the public notice without an additional public hearing after notice required by § 15.2-2204. Zoning ordinances shall be enacted in the same manner as all other ordinances.
D. Any county which has adopted an urban county executive form of government provided for under Chapter 8 (§ 15.2-800 et seq.) may provide by ordinance for use of plans, profiles, elevations, and other such demonstrative materials in the presentation of requests for amendments to the zoning ordinance.
E. The adoption or amendment prior to March 1, 1968, of any plan or ordinance under the authority of prior acts shall not be declared invalid by reason of a failure to advertise, give notice or conduct more than one public hearing as may be required by such act or by this chapter, provided a public hearing was conducted by the governing body prior to the adoption or amendment.
F. Every action contesting a decision of the local governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception shall be filed within thirty days of the decision with the circuit court having jurisdiction of the land affected by the decision. In such appeal, the findings and conclusions of the governing body shall not be entitled to a presumption of correctness. Any party may introduce evidence in the proceedings, and the court shall hear any such appeal de novo. However, nothing in this subsection shall be construed to create any new right to contest the action of a local governing body.
§ 15.2-2314. Certiorari to review decision of board.
Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the locality, may file with the clerk of the circuit court for the county or city a petition that shall be styled "In Re: [date] Decision of the Board of Zoning Appeals of [locality name]" specifying the grounds on which aggrieved within 30 days after the final decision of the board.
Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of the board of zoning appeals and shall prescribe therein the time within which a return thereto must be made and served upon the secretary of the board of zoning appeals or, if no secretary exists, the chair of the board of zoning appeals, which shall not be less than 10 days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.
Any review of a decision of the board shall not be considered an action against the board and the board shall not be a party to the proceedings; however, the board shall participate in the proceedings to the extent required by this section. The governing body, the landowner, and the applicant before the board of zoning appeals shall be necessary parties to the proceedings. The court may permit intervention by any other person or persons jointly or severally aggrieved by any decision of the board of zoning appeals.
The board of zoning appeals shall not be required to return the original papers acted upon by it but it shall be sufficient to return certified or sworn copies thereof or of the portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take evidence as it may direct and report the evidence to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
In the case of an appeal from the board of zoning appeals to
the circuit court of an order, requirement, decision or determination of a
zoning administrator or other administrative officer in the administration or
enforcement of any ordinance or provision of state law, or any modification of
zoning requirements pursuant to § 15.2-2286, the findings and conclusions of
the board of zoning appeals on questions of fact
shall be presumed to be correct shall not be entitled to a
presumption of correctness. The
appealing party may rebut that presumption by proving by a preponderance of the
evidence, including the record before the board of zoning appeals, that the
board of zoning appeals erred in its decision. Any party
may introduce evidence in the proceedings in the court. The, and the
court shall hear any arguments on questions
of law such appeal de
novo.
In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted an application for a variance, or application for a special exception, the decision of the board of zoning appeals shall be presumed to be correct. The petitioner may rebut that presumption by showing to the satisfaction of the court that the board of zoning appeals applied erroneous principles of law, or where the discretion of the board of zoning appeals is involved, the decision of the board of zoning appeals was plainly wrong and in violation of the purpose and intent of the zoning ordinance.
Costs shall not be allowed against the locality, unless it shall appear to the court that it acted in bad faith or with malice. In the event the decision of the board is affirmed and the court finds that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making the return of the record pursuant to the writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the locality may request that the court hear the matter on the question of whether the appeal was frivolous.
§ 25.1-245. Costs.
A. Except as otherwise provided in this chapter, all costs of the proceeding in the trial court that are fixed by statute shall be taxed against the petitioner.
B. The court may in its discretion tax as a cost a fee, not to exceed $1,000, for a survey for the landowner.
C. If an owner whose property is taken by condemnation under
this title or under Title 33.1 is awarded at trial, as compensation for the
taking of or damage to his real property, an amount that is at
least 30 percent or more and less than 75 percent
greater than the amount of the petitioner's final written offer made not later
than 60 days after receipt by the petitioner of a complete copy of the owner's
written self contained or summary appraisal report, as referenced in the
Uniform Standards of Professional Appraisal Practice, provided it is the same
type of report furnished to the landowner that complies with the requirements
of the Uniform Standards of Professional Appraisal Practice in effect as of the
date of such report on which the owner intends to rely to support the amount of
just compensation to which he claims to be entitled, the court may order the
petitioner to pay to the owner those (i) reasonable costs, other than attorney
fees, and (ii) reasonable fees and travel costs, including reasonable appraisal
and engineering fees, for no more than three experts testifying at trial, that
the owner incurs. If an owner is
awarded at trial, as compensation for the taking of or damage to his real
property, an amount that is at
least 75 percent and less than 125
percent greater than the amount of
the petitioner's final written offer, the court shall order that petitioner to
pay to the owner the fees and costs
described in clauses (i) and (ii). If an owner is awarded at trial, as
compensation for the taking of or damage to his
real property, an amount that is 125 percent or greater
than the amount of the petitioner's final written offer, the court shall order
the petitioner to pay to the owner
reasonable attorney fees and the fees and costs
described in clauses (i) and (ii). The requirements of this
subsection shall not apply to those condemnation actions:
1. Involving easements valued at less than $10,000.
2. In which the petitioner filed, prior to July 1, 2005: (i) a
petition in condemnation pursuant to Chapter 2 (§ 25.1-205 et seq.) of this title;
or (ii) a certificate of take or deposit pursuant to Title 33.1, or Chapter 3 (§ 25.1-300 et
seq.) of this title.
3. In which the owner does not provide the report described herein.
D. All costs on appeal shall be assessed and assessable in the manner provided by law and the Rules of Court as in other civil cases.
2. That § 2.2-4027 of the Code of Virginia is repealed.