State Law in Virginia affecting Local Codes & Ordinances

State Law in Virginia affecting Local Codes & Ordinances Published as a public service by

of 15 INTRODUCTION State law changes in Virginia, impact many provisions in the ordinance codes of Virginia counties, cities and towns. This pamphlet is intended to assist county, city and town attorneys in the identification of provisions in ordinance codes that may require revision in light of state law. The information in this pamphlet is based upon the experience of the legal staff of Municipal Code Corporation in working with the ordinance codes of Virginia cities, towns and counties. This pamphlet is current through April 21, 2012, and embraces certain acts through such date, regardless of the effective dates of such acts. Not all provisions of this pamphlet will apply to a particular Code, nor does this pamphlet purport to include all state laws that may somehow affect the language of a Code. The provisions of this pamphlet are intended to assist city, town and county attorneys and are not intended to be a substitute for the advice of counsel. It is not the intent of Municipal Code Corporation in publishing this pamphlet to provide legal advice. An attorney admitted to practice in Virginia, must be consulted as to the applicability of a given statute or case to a particular situation. Copyright This pamphlet is copyrighted by Municipal Code Corporation. Copyright is not claimed as to any part of the original work prepared by a state government officer or employee as part of that person's official duties. No part of this state law pamphlet may be copied, downloaded, stored in a retrieval system, further transmitted, or otherwise reproduced, stored, disseminated, transferred, or used, in any form for commercial purposes, without the express written consent of Municipal Code Corporation. Prepared by Roger D. Merriam, Senior Code Attorney Copyrighted material Municipal Code Corporation. 2012.

of 15 PART I. CHARTERS 1. Effect of Code of Virginia, title 15.2 on charters. a. Code of Virginia, title 15.2 does not repeal, amend, impair or affect any power, right or privilege conferred on counties, cities and towns by charter except where expressly provided by the words "'Notwithstanding any contrary provision of law, general or special,' or words of similar import". See Code of Virginia, 15.2-100. b. Code of Virginia, title 15.2, ch. 11, art. 1, pertaining to powers of cities and towns, may be used to supplement, or be applicable in lieu of, local Charters. See Code of Virginia, 15.2-1100.

of 15 CODE OF ORDINANCES GENERAL PROVISIONS 1. General penalty. Code of Virginia, 15.2-1429 provides that the maximum penalty for the violation of a local ordinance is the penalty provided by general law for a Class 1 misdemeanor. Such penalty shall not exceed the penalty prescribed by general law for a like offense. The punishment for the various classes of misdemeanors is found in Code of Virginia, 18.2-11. 2. Alternative method to give notice by mail. Notwithstanding any other provision of law, general or special, a county, city or town may give notice by regular mail in any instance in which two or more notices are required for the same action, the first notice is required to be sent by certified or registered mail, and at least one notice has previously been sent by certified or registered mail. Such notice shall be sent to the last address available through government records. See Code of Virginia, 15.2-107.2.

of 15 ADMINISTRATION 1. Notice of special meetings. Electronic mail or facsimile notices of special meetings may be given members of governing bodies upon the request of such members. See Code of Virginia, 15.2-1418. 2. Procurement Code. a. The dollar amounts relative to procurement of professional services were amended in 2011. See Code of Virginia, 2.2-4343. b. The aggregated amount sum of small purchases for which no bids or competitive negotiation has been increased. See Code of Virginia, 2.2-4303. c. The minimum contractual amount for which performance and payment bonds are required has been raised. See Code of Virginia, 2.2-4337. 3. Planning and zoning fees, franchise fees and certain utility charges. Planning and zoning fees, franchise fees and certain utility charges must be established by ordinance. See Code of Virginia, 15.2-107. 4. Fee for passing bad checks. The fee authorized to be imposed for a "bad check" to a county, city or town has been raised. See Code of Virginia, 15.2-106.

of 15 ANIMALS 1. Comprehensive animal laws. Code of Virginia, title 3.1 was repealed effective October 1, 2008, and replaced by Code of Virginia, title 3.2. 2. Rabies control. The requirements for ordinances creating programs for the distribution of oral rabies vaccine were amended in 2010. See Code of Virginia, 3.2-6525. 3. Dangerous dogs. The provisions of Code of Virginia, 3.2-6540 and 3.2-6542 were amended in 2012.

of 15 BUILDINGS AND BUILDING REGULATIONS 1. Uniform Statewide Building Code. Authorized civil penalties that may be imposed by ordinance have been raised. See Code of Virginia, 36-106.

of 15 BUSINESSES 1. Taxicab regulations. The circumstances under which the number of taxicabs permitted to be operated by a taxicab operator or certificate holder may be reduced have been restricted. See Code of Virginia, 46.2-2067. 2. Building contractor licenses. Civil penalties are authorized for violations of ordinances licensing building contractors. See Code of Virginia, 54.1-1117.

of 15 ENVIRONMENT 1. Erosion and sediment control. Authorized civil penalties for the violation of local erosion and sediment control programs have been altered. See Code of Virginia, 10.1-562. 2. Nuisances. Unpaid nuisance abatement costs in excess of $200.00 incurred by municipalities that have been assessed against the owner of property upon which the nuisance is located that remain unpaid constitute a lien against the property. See Code of Virginia, 15.2-1115. 3. Smoking. Local ordinances pertaining to smoking are regulated and restricted by Code of Virginia, 15.2-2820 et seq. Certain mandatory provisions are required in such ordinances. See Code of Virginia, 15.2-2809. 4. Fertilizer. Local government regulation of the registration, packaging, labeling, sale, use, application, storage or distribution of fertilizers is restricted. See Code of Virginia, 3.2-3602. 5. Disposable containers. Ordinances that attempt to regulate the size or type of any container or package containing food or beverage or that require a deposit on a disposable container or package are preempted and void. See Code of Virginia, 10.1-1425.

of 15 FIRE PREVENTION CODE 1. Appeals from local fire codes. Any local fire code may provide for an appeal to a local board of appeals. If no local board of appeals exists, the state building code technical review board hears appeals of local fire code violations. See Code of Virginia, 27-98.

of 15 OFFENSES AND MISCELLANEOUS PROVISIONS 1. Public facilities. Ordinances making unlawful the willful and malicious damage to or defacement of private property are no longer restricted to property having a value of $1,000.00 or less. Minimum fines are now required, as is notice for abatement. See Code of Virginia, 15.2-1812.2. 2. Firearms. a. Preemption. Subject to certain exceptions, counties, cities and towns cannot regulate or prohibit governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. A statute that does not refer to firearms, ammunition, or components or combination thereof does not provide express authorization. See Code of Virginia, 15.2-915. In addition to any other relief, such statute provides that courts may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging an ordinance by such section. b. Discharge of firearms. Any municipal corporation that regulates or prohibits the discharge of firearms shall provide an exemption for the killing of deer pursuant to Code of Virginia, 29.1-529, with such exemption applying on land of at least five acres that is zoned for agricultural use. See Code of Virginia, 15.2-1113. 3. Charitable gaming. The state department of charitable gaming is vested with control of all charitable gaming. See Code of Virginia, 18.2-340.15. Recent amendments to Code of Virginia, 15.2-912.2 have removed the local regulatory authority found in that section. 4. Noise ordinances. Civil penalties for violation of noise ordinances are permitted. See Code of Virginia, 15.2-980. 5. Meth lab cleanup costs. An ordinance may provide that any person who is convicted of an offense for manufacture of methamphetamine pursuant to Code of Virginia, 18.2-248 or 18.2-248.03 shall be liable at the time of sentencing or in a separate civil action for the expense in cleaning up any methamphetamine lab related to the conviction. The amount charged shall not exceed the actual expenses associated with cleanup, removal, or repair of the affected property or the replacement cost of personal protective equipment used. See Code of Virginia, 15.2-1716.2.

of 15 SUBDIVISIONS 1. Family member conveyances. The required provisions relative to family member conveyances applicable to counties have been amended so as to alter the definition of immediate family. See Code of Virginia, 15.2-2244. 2. Preliminary subdivision plat. The provisions of Code of Virginia, 15.2-2260 were amended in 2009. 3. Financial assurances by developer prior to acceptance of dedication of local improvement. The surety provided by a developer, can be approved by the planning commission or an agent designated by the governing body for such purpose. See Code of Virginia, 15.2-2241.

of 15 TAXATION 1. Extension of time to pay vehicle tax. Local governments must allow an automatic extension on real property taxes imposed upon a primary residence and personal property taxes imposed upon a qualifying vehicle, as defined in Code of Virginia, 58.1-3523, owed by members of the armed services of the United States deployed outside of the United States. See Code of Virginia, 58.1-3916. 2. Relief for elderly and handicapped. Provisions relative to tax relief for elderly and handicapped persons were amended in 2011. See Code of Virginia, 58.1-3211.1. 3. License taxes and business licenses. a. The provisions of Code of Virginia, title 58.1, ch. 37 are the sole authority for counties, cities and towns for the levying of the license taxes described therein. See Code of Virginia, 58.1-3702. b. Subject to certain exceptions, license taxes based upon gross receipts must be based on Virginia, taxable income as calculated pursuant to Code of Virginia, 58.1-322 or 58.1-402. See Code of Virginia, 58.1-3702. c. The mandatory provisions required in a local license tax ordinance were amended in 2010 and 2011. See Code of Virginia, 58.1-3703.1. d. The statute imposing general limitations on license taxes was amended in 2010 and 2011. See Code of Virginia, 58.1-3703. e. Contractor licenses cannot be issued or renewed unless the application furnishes proof of licensing (or exemption from) Code of Virginia, title 54.1, ch. 11. See Code of Virginia, 54.1-1111. f. For local property taxation purposes, the governing body of any county, city, or town may tax short-term rental property pursuant to Code of Virginia, 58.1-3509 or Code of Virginia, 58.1-3510.6, but not both. See Code of Virginia, 58.1-3510.4. g. Architect or professional engineer business licenses cannot be issued or renewed unless the application furnishes proof of licensing (or exemption from) Code of Virginia, title 54.1, ch. 4. See Code of Virginia, 54.1-410.1. 4. Coal and gas severance tax ordinances and local coal and gas road improvement tax ordinances. Restrictions and requirements have been imposed upon coal and gas severance tax ordinances and local coal and gas road improvement tax ordinances. See Code of Virginia, 58.1-3713.3.

of 15 TRAFFIC AND VEHICLES 1. Regulation of towing and recovery of motor vehicles. The authority of local government units to regulate towing and recovery by ordinance has been revised. See Code of Virginia, 46.2-1217 (amended in 2006 and 2008). 2. Penalties. Authorized penalties for a violation of a local ordinance adopted pursuant to Code of Virginia, 46.2-1300 have been raised. See Code of Virginia, 46.2-113. 3. Reimbursement of expenses incurred in responding to DUI incidents and other traffic incidents. Reimbursement of expenses incurred in responding to DUI incidents and other traffic incidents is authorized, subject to restrictions. See Code of Virginia, 15.2-1716 (amended in 2010).

of 15 UTILITIES 1. Water and sewer services--denial of service for outstanding charges. Unless a lien has been recorded against the property owner, water or sewer service cannot be denied to a new tenant who is requesting service at a particular property address based upon the fact that a former tenant has not paid any outstanding fees and charges charged for the use and services in the name of the former previous tenant. See Code of Virginia, 15.2-2119. 2. Sewer use ordinances--civil penalties. Civil penalties for violation of sewer use ordinances are allowed under certain circumstances. See Code of Virginia, 15.2-2122 (amended in 2010).

of 15 ZONING 1. Permitted provisions in zoning ordinance. The provisions of Code of Virginia, 15.2-2286 were amended in 2009. 2. Penalties. a. The authorized penalties for violation of zoning ordinances have been altered. See Code of Virginia, 15.2-2209. b. Civil penalties cannot be imposed by a court during the pendency of the 30-day appeal period. See Code of Virginia, 15.2-2311. 3. Nonconformities. Code of Virginia, 15.2-2307 was amended in 2010. 4. Cash proffers. Cash proffers are regulated and restricted. See Code of Virginia, 15-2303.2. 5. Farm wineries. Zoning regulation of farm wineries is restricted. See Code of Virginia, 15.2-2288.3. 6. Temporary family health care structures. Zoning of temporary family health care structures is restricted. See Code of Virginia, 15.2-2292.1. 7. Transfer of development rights. The provisions of Code of Virginia, 15.2-2316.2 were amended in 2010. 8. Written notices of decisions on appeal. Provisions relative to written notices of decisions, determinations, etc., on appeal have been enacted. See Code of Virginia, 15.2-2204. 9. Regulation of helicopter use. Regulation of helicopter use is restricted. See Code of Virginia, 15.2-2293.2.