Localities may be on hook for unlawful code enforcement

Earlier this year, Virginia’s legislature voted to add § 15.2-2208.2 to the Virginia Code chapter titled “Planning, Subdivision of Land and Zoning.” This law creates a new cause of action against local government enforcement actions that willfully disregard the law.

On July 1, “any person against whom an enforcement action is carried out by a locality, of any ordinance or regulation … where the enforcement action was based upon a willful disregard for applicable law, regulation, or ordinance, shall be entitled to an award of compensatory damages and to an order remanding the matter to the locality with a direction to carry out any further enforcement in a manner consistent with the law, regulation, or ordinance[.]”

In addition to compensatory and injunctive relief, a prevailing plaintiff may also receive reasonable attorney fees and court costs. Actions may be filed in the local general district court, which “shall hear and determine the case as soon as practical.”

However, the law expressly forbids any construction that abrogates a claim of qualified immunity. Sen. Scott Surovell, D-Fairfax, who patroned SB 1495 bill through the legislature, told Virginia Lawyers Weekly that was an important limitation.

“I don’t think qualified immunity ever applied, but I was concerned that someone might believe that it does,” he said. “I didn’t want to have some creative attorney coming up with an argument that was never intended.”

Lack of balance

Surovell described how several people, including many constituents, were angry about a lack of balance in the system of local code enforcement.

“Right now, if a locality chooses to bring an enforcement action against you, they’ve got their entire code enforcement department and legal department to bring you to submission,” he said. And if you don’t agree with the locality, it’s “incredibly risky and expensive to do anything about it.”

He thinks the new law will balance the playing field by allowing a claimant to get judicial review prior to getting fined. Many local governments, especially in Northern Virginia, have large legal departments, Surovell said, adding that “some permit inspectors can be overly aggressive in terms of denying permits.

He was confident that the Supreme Court of Virginia would prepare general district court judges for handling the new claims.

“But most circuit court judges aren’t terribly familiar with land use design either,” he said.

The senator was happy to point out that “general district courts typically don’t have injunctive powers, but we’ve given it to them here, as well as for violations of homeowners’ association rules.”

Road to passage

When presenting his bill to the Senate Judiciary Committee last February, Surovell said he was continuing the “good work” Sen. Mark Obenshain, R-Harrisonburg, started in 2014 when he created a cause of action against localities for unconstitutional permitting and approval actions. (See Virginia Code § 15.2-2208.1)

“This basically extends that to other violations of state law and it’s aimed at code enforcement,” he said.

Although Surovell said the law wouldn’t affect qualified immunity, Sen. J. Chap Petersen, D-Fairfax, felt an enactment clause was needed.

Petersen wondered if the bill would create a “state law duplicate” of § 1983 claims, but Surovell said it was actually a lower barrier.

“This has to do with violations of state law, not the constitution,” he pointed out. “The threshold here is ‘willful violation’ not just any violation of state law.”

Chairman John S. Edwards, D-Roanoke, noted that “qualified immunity is clearly a federal issue, period.”

“General district courts typically don’t have injunctive powers, but we’ve given it to them here, as well as for violations of homeowners’ association rules.”

 — SB 1495 sponsor Sen. Scott Surovell, D-Fairfax

Obenshain agreed with Edwards. He offered as “comfort” to Petersen that § 1983 deals with persons who violate the constitution while Surovell’s bill applies to localities. He explained that several local violations hurt, but not enough to justify bringing a § 1983 action.

“Many people are subject to the arbitrary local actions but the officials know there’s nothing anyone can do to them,” Obenshain noted.

The committee accepted Petersen’s request for the bill to say that a plaintiff “may” — not “shall” — file their claim in a general district court, which Surovell felt was a quicker, cheaper way to litigate claims.

Concerns

Sen. Richard H. Stuart, R-Westmoreland County, asked how the bill overlapped with a writ of certiorari for arbitrary and capricious actions by a locality.

“It appears to be in conflict with or addition to that,” he said.

But Surovell pointed out that “willful disregard is a lower bar than arbitrary and capricious.” He responded to Sen. Joseph Morrissey, D-Richmond, that his bill was an additional remedy to a writ of mandamus or petition for injunction.

Stuart expressed concern that someone using Surovell’s law could miss their deadline to file a writ of certiorari. And Morrissey asked whether a claimant could file both the new cause of action and a writ of certiorari.

Surovell agreed that approach was possible but noted that Obenshain’s bill didn’t say anything about certiorari or mandamus.

A representative of VaOurWay, a Virginia nonprofit seeking more transparency in state government, expressed their support for the bill.

In opposition, Mark Flynn of the Virginia Municipal League pointed to existing remedies for local malfeasance and thought general district court judges wouldn’t understand the issues.

“Another concern is that the most litigious folks will use this bill in lieu of existing remedies to get attorneys’ fees,” Flynn said.

Petersen noted that the Administrative Process Act allows for attorneys’ fees in actions against the state, but not localities.

The Virginia Association of Counties also opposed the bill, as well as the Fairfax County Attorney’s Office, who described the difficulty of hiring code enforcement officers.

Stuart suggested that Surovell just amend the existing remedies to allow for recovery of attorneys’ fees. Surovell responded that he used the same language from Obenshain’s bill.

The committee voted 10-5 to report the bill to the legislature, where it was passed in March with Stuart being the only opposing vote.

The full text of the bill can be found on VLW’s website at: https://valawyersweekly.com/files/2023/06/SB1495.pdf.