By Mark J. Fitzgibbons
(This is Part II of a three-part series about the past, present and future of property rights in Virginia, focusing on the Boneta Bill and abuses by localities of their zoning powers. The first installment was The Racist Roots of Virginia’s Land Use Laws.)
Farmers and other citizens across Virginia celebrated and heaped praise on the Boneta Bill that took effect July 1. Compared to the hell that Martha Boneta was put through for simply trying to run a farm, the law provides relatively meager regulation of the red tape that localities may impose on how farmers may earn a living.
No citizen should be put through what Martha faced to protect basic rights from abusive government at any level.
The Boneta Bill was a compromise that still lets local governments create barriers to farmers under a subjective standard of the health, safety and welfare of the community. That was already the standard for zoning ordinances before the Boneta Bill was enacted, and has been abused against many more people than just Martha.
Some localities are already resisting the Boneta Bill. As sure as we breathe, some zoning officials will continue to abuse their powers, and violate property and other constitutional rights of farmers and other citizens. Local governments will continue to discriminate against some land owners, while providing favors for cronies.
The original Boneta Bill introduced in the 2013 General Assembly included legal remedies that allowed victim farmers of government zoning abuse to obtain fair and reasonable damages, including attorney fees, if farmers had to sue to enforce their rights. Those “teeth” protecting farmers were dropped from the bill in committee.
In the 2014 General Assembly a separate remedies bill was introduced, HB 1219, that would have provided citizens with remedies when local governments abuse zoning power.
The bill took aim at the bad apples, and protected the good ones. It distinguished between mistakes and intentional violations by local governments, and provided whistleblower protections for government employees who disclosed unlawful acts within their zoning offices.
A major purpose of the remedies legislation is to discourage local governments from abusing zoning authority in the first place. There is well-established precedent for such remedies against government at federal and state levels.
The fact of the matter is that even with the compromise Boneta Bill in place, local governments have too little disincentive to abuse their zoning authority. Most people cannot afford the thousands or tens of thousands of dollars to enforce their rights through the courts, and local officials know that.
Martha, other farmers, and all property owners need the “teeth” of such remedies to help protect their rights.
Protecting Constitutional Rights of Property Owners
HB 1219 would make it clear that judges may rule that unconstitutional ordinances are null and void. Too often judges are reluctant to overturn acts of government that violate the Constitution, our supreme, fundamental and paramount law. All branches of government, however, have an obligation to uphold the Constitution.
The bill also protects against unconstitutional enforcement of zoning powers, and treats ultra vires enforcement (beyond legal authority) as a violation subject to remedies. Zoning bureaucrats don’t make the rules, although too many of them think they do.
As I recently wrote, York County zoning officials have unilaterally decided to do warrantless onsite inspections of special use permit holders even though the county ordinance only authorizes inspections with warrants issued under probable cause. That is akin to police knocking on doors just to see if everyone inside is following the law, which is a police-state interruption of property owners’ rights and quiet enjoyment. Of course, citizens who are outspoken critics of their local governments have reason to fear uneven enforcement of such unauthorized inspections.
HB 1219 would provide whistleblower protections for local government employees. Many of these employees are members of our families, churches, civic organizations, or are neighbors. Too often they are forced by their supervisors to violate the rules and the law in order to target members of the community. They need protections as much as the citizens who are victims of zoning abuse so that they do not fear reprisal for being responsible and good government employees.
The bill also authorizes the Virginia Attorney General to intercede on behalf of citizens to enforce the law. Not always, but sometimes the local Commonwealth Attorney is closely aligned with local government officials, and they sometimes turn their heads when localities transgress the law. It is the duty of the Attorney General to enforce the Constitution, and when local governments violate the constitutional rights of farmers and other citizens, the AG would now be expressly authorized to help.
Fair Penalties Will Be Incentive for Localities to Follow the Law
Penalties under HB 1219 are fair and reasonable. Localities that violate HB 1219 would pay their victims the amount of the fines that the county sought to improperly impose on the citizen — so this is absolute parity — plus actual damages and attorney fees.
For willful (intentional) violations, the award of damages paid by the county would triple.
Individual zoning officials who engage in willful violations may be personally liable up to the amount equal to the fine sought by the county, actual damages, and attorney fees. These are not required penalties, but merely optional for a judge to impose depending on the severity of the intentional violations. Zoning officials and other government employees would not be personally liable for mistakes, good faith errors of judgment, or being coerced by their supervisors to act.
HB 1219 would also remove the “presumption of constitutional validity” of zoning ordinances. That presumption is not found in the Virginia Constitution, and was created by judicial activism.
Local ordinances may be passed by a vote of as few as three supervisors, and do not go through a constitutional structure of checks and balances. Laws passed by the General Assembly, on the other hand, go through two legislative chambers and threat of executive veto, and therefore they go through a constitutional structure.
In a constitutional challenge to a local ordinance, the burden would be shifted from the citizen to the county to prove constitutionality of the ordinance. This will help localities ensure that they weigh the constitutionality of their ordinances before enacting them, which too will help prevent litigation.
Last session the head of the Virginia Municipal League testified against HB 1219 claiming that localities would stop enforcing zoning ordinances. This was a disturbing and thinly veiled threat. Imagine the reaction of legislators if any trade association were to say that its industry could not operate without violating the law and harming citizens.
If zoning officials refuse to enforce zoning ordinances without violating constitutional rights, then the simple solution is to replace them. There are plenty of good Virginians looking for jobs. And, the leaders of their umbrella organizations such as the Virginia Municipal League should be replaced with officials who respect rights of citizens and the Constitution.
HB 1219 had no lobbyists walking the halls asking legislators to sponsor and pass the legislation. Virginians should begin contacting their delegates and senators now to pass this very important legislation that will help protect property rights.
The bill will actually lessen the need for litigation by giving localities incentive to enact and enforce zoning ordinances without violating property and other constitutional rights. It is targeted at the bad, and protects the good. Virginians regardless of political affiliation need this legislation.