Joseph Ferguson owns an 86-acre, mostly wooded property in Isle of Wright County, Virginia. Recently the county told him that he could not allow a disabled friend to bring an RV trailer onto his property for a weekend hunting excursion.
Martha Boneta is an organic farmer who was cited by Fauquier County and threatened with $5,000 per-day fines for hosting a birthday party for eight 10-year-old girls, and advertising pumpkin carvings.
These are just two examples of how local governments in Virginia abuse zoning power to violate property and other rights. Most such violations of people’s constitutional rights in Virginia never come to light because people often concede to bureaucrat bullies rather than fight them.
Delegate Bob Marshall has introduced property rights legislation in the Virginia General Assembly that is gaining national attention at major media outlets such as the Drudge Report and Fox News.
Marshall’s HB 1219 is a breath of fresh air for property rights. It gives victims of local government abuse of land use laws remedies including fines and attorney fees. The fines are increased when local governments intentionally violate constitutional rights on landowners’ private property. Government officials who willfully violate this law will feel the pinch.
These remedies under HB 1219 are based in clear precedent including federal law that awards damages and attorney fees when state actors violate constitutional rights “under color of state law.” Those statutes, 42 USC 1983 and 1988, are no detriment to proper law enforcement.
The legislation also states that any local land use ordinance that violates constitutional rights shall be null and void. Zoning enforcement that tramples on constitutionally protected rights is also made a violation of law under HB 1219. Courts too often fail to protect fundamental rights of citizen in the name of ‘judicial restraint,’ so these provisions are much welcomed.
In a 1981 constitutional challenge to a zoning ordinance, the Virginia Supreme Court declared that local ordinances have a presumption of validity, hence a presumption of constitutionality. This presumption is not created by statute, but by the judiciary, which is really judicial activism, and places the burden on citizens to prove that laws are unconstitutional rather than making government prove that their laws are constitutional, or at least start the case from a level playing field.
The respective supreme courts have accorded state and federal statutes a presumption of constitutionality. Some legal scholars including Professor Randy Barnett have criticized that presumption, even calling it unconstitutional. But, state and federal laws at least go through a constitutional process of two legislative chambers and a threat of executive veto. It is that constitutional structure — checks and balances — on which the presumption is based.
Local ordinances do not go through such a constitutional process, but may be passed merely by a vote of three out of five elected officials in some localities. That’s hardly a basis for giving ordinances a presumption of constitutional validity.
HB 1219 will help prevent the need to litigate because it will force local governments to be more attentive in their ordinance drafting and enforcement.
The Virginia Code authorizing localities to create and enforce land use laws had its last major modification in 1962, five years before the Supreme Court declared Virginia’s ban on interracial marriages unconstitutional. The law was structured to be subjective, violate due process guarantees, ignore rules of evidence, and to allow localities to discriminate.
HB 1219 empowers citizens and levels the playing field by creating consequences for abuse of zoning power.