Fairfax County officials are concerned about proposed legislation that would expand the situations in which plaintiffs can be awarded damages and attorneys fees in land use cases that go to court.
While the bills sound like they would cover rare cases, as they are focused on land use cases that include “unconstitutional conditions,” the county’s legislative and legal staff believe that the language would broaden landowners’ rights to sue the county.
“We are very concerned about this bill,” said county legislative director Claudia Arko.
The legislation is a top legislative priority of the Home Builders Association of Virginia, which Arko said is a powerful lobbying force in Richmond.
The bill stems from a Supreme Court decision on a case from Florida last year, Koontz vs. St. Johns River Water Management District.
That case expanded the definition of an unconstitutional “taking” of private property to include conditions in which a landowner is asked to provide money as a condition of a redevelopment permit — something that is relatively common in land use cases.
Such conditions must be “closely related” and “roughly proportional” to the impact of the applicant’s development, otherwise they can be deemed unconstitutional.
In Florida, state law allows the applicant to be awarded damages, attorneys fees and court costs in cases where a development condition is found unconstitutional, but such a law does not exist in Virginia.
The Home Builders Association wants to extend these rights in Virginia with the goal of pressing localities to keep proffer requests and other conditions within the limits Koontz and a related, prior ruling, according to the association’s legislative position paper.
The language in the proposed state legislation takes the concept even further than the situation in the Koontz case, Arko said, potentially allowing an applicant to agree to a development condition and then later challenge that condition in court.
An impact statement conducted on the House of Delegates version of the bill states that it is virtually impossible to estimate the potential fiscal impact on localities because it would have to assume that unconstitutional conditions are being applied, but states that it could be severe.
“The bill language exposes local governments of the Commonwealth to a new liability,” the report states. “Financial hardship from awards of damages could be crippling.”
The analysis also suggests that the bill may require that local government attorneys spend more time reviewing land use cases to ensure approvals are constitutional.
The House version of the bill passed out of a subcommittee on Wednesday on a 5-4 vote. It was amended in subcommittee, but the amended bill language was not posted to the state legislative website as of Thursday afternoon.
A narrower version of the bill, which does not include as many types of land use permits and waivers as the House bill and places a 60-day time limit on filing legislation, passed out of a Senate committee on Monday with a 14-1 vote and was awaiting a vote in the full Senate.