SD5 - Recodification of Title 15.1 of the Code of Virginia


Executive Summary:
Senate Joint Resolution No. 2 (1994) directs the Virginia Code Commission to study Title 15.1 of the Code of Virginia and to report its findings to the General Assembly in the form of a recodification. The resolution notes that Title 15.1 has not been recodified since 1962 and that the laws concerning local governments have changed substantially since that time.

The Code Commission appointed a task force, consisting of persons with expertise in local government matters, to assist staff of the Division of Legislative Services with the preparation of drafts. The task force began a series of monthly day-long meetings in the spring of 1994 and completed its initial recommendations in the fall of 1995. The task force members are listed at the end of this summary.

The Code Commission began its review of task force recommendations in 1995 but completed the majority of its work during the first half of 1996. The Code Commission makes its final recommendations with the issuance of this report and will prepare proposed Title 15.2 for introduction at the 1997 Session.

Although the primary purpose of the Title 15.1 recodification is to reorganize and simplify the existing statutes, certain substantive changes are also made. Such changes were required to resolve the confusion caused by conflicting provisions and to modernize other provisions that have gone unchanged since the nineteenth century. These substantive changes are noted in this executive summary.

Organization of Title 15.2

The most noticeable change in Title 15.2 is its new organization. Title 15.1 is the longest title in the Code and possibly the most difficult to use due to its awkward arrangement and its abundance of outdated and conflicting provisions. Title 15.2 should be much more user-friendly, as it is divided into four subtitles with the chapters and sections grouped logically within them.

Subtitle I contains general provisions applicable to the entire title, and provisions relating to local government charters and optional forms of county government. Currently, the provisions governing optional county forms can be confusing to use, as the five optional forms are contained in three chapters with overlapping provisions. Title 15.2 separates the five forms of government into five chapters and precedes the five chapters with general provisions applicable to the creation of any of the five forms.

Subtitle II contains the powers of local government. The subtitle begins with general powers applicable to all localities and then covers specific types of powers such as condemnation and planning. Several newly created chapters within this subtitle combine related sections that were previously scattered throughout Title 15.1.

Subtitle III combines chapters related to boundary adjustments and changes of status of localities. For example, provisions related to annexation, consolidation of localities and transition of cities to town status are found in this subtitle.

Subtitle IV contains chapters providing for the creation of other governmental entities such as authorities. Historically, legislation creating authorities has been placed in the local government title, even if the subject matter of the authority is not closely related to local governments. Title 15.2 continues this precedent with the exception of current Chapter 43 (Behavioral Health Authorities), which is relocated to Title 37.1 as part of the recodification.

Four present chapters are not carried forward as part of Title 15.2 but will be repealed: Chapter 19 (Other Forms of Government in Municipalities of Less Than 50,000), Chapter 20 (Change of Form of Municipal Government), Chapter 23 (Transition of Second-Class to First-Class Cities) and Chapter 30 (Metropolitan Commissions). Chapters 19, 20 and 30 have never been used. Chapter 23 is outdated.


SELECTED CHANGES IN TITLE 15.2

CHANGES MADE REPEATEDLY THROUGHOUT TITLE 15.2

• The term “locality” generally replaces phrases such as “counties, cities and towns” and “counties and municipalities.” “Locality” is defined in Chapter 1 to include counties, cities and towns. The broader term of “political subdivision” is generally not changed unless it clearly was intended to mean locality.

• The phrase “the governing body of any locality may . . .” is generally replaced with “any locality may . . .” except in instances when reference to the governing body needs to be retained in order to clarify the intent of the statute.

• The term “voter” generally replaces the phrases “qualified voter” and “registered voter.” “Voter” is defined in Chapter 1 to include qualified and registered voters.

• Standard language is utilized for certain publication requirements. As a result, in some instances localities may publish a descriptive summary of a proposed action (such as an ordinance or a consolidation agreement) rather than publishing the proposed action in full. In such instances, localities must give the location where the full text of the proposed action may be examined. This change reflects the modern practice with regard to publication requirements.

• Population brackets are used extensively throughout Title 15.1 in order to designate certain unnamed localities. The population brackets are retained in proposed Title 15.2; however, if the population figure was intended to refer to a census other than the 1990 census, the phrase “according to the 19__ (insert applicable year) census or any subsequent census,” has been added. The result of this change will be that the statute will continue to apply to the locality originally intended, and other localities may continue to grow into the population bracket as is permitted by current law.

• Each section in the recodification is followed by a drafting note that describes the change made, if any. If a drafting note states “no change,” the section contains no changes other than renumbering and updated cross-references. If a drafting note states “no substantive change in the law,” the section contains a change in the text of the section, even if only a change in punctuation; however, such changes are not deemed to change the current state of the law. If a section contains a substantive change in the law, the drafting note will describe the change.

SUBSTANTIVE CHANGES AND OTHER SELECTED ISSUES FOUND IN TITLE 15.2
(If a chapter is not listed, it contains no substantive changes)

Chapter 1 -- General Provisions

There are no substantive changes in this chapter; however, several sections regarding the effect of the recodification of old Title 15 are shown as repealed. Similar provisions relating to the effect of the Title 15.1 recodification will not be codified but will be contained in enactment clauses in the recodification bill, as is the current practice.

Chapter 2 -- Local Government Charters

Section 15.2-204 makes a substantive change by automatically conferring the uniform charter powers (see proposed Chapter 11, Article 1) on cities and towns without a specific authorization in the city or town charter. The task force and the Code Commission felt that the current requirement for specific authorization may create a trap for unwary localities, especially small towns. Also, the General Assembly has historically granted these powers to cities and towns without controversy. Chartered counties continue to have only those powers specifically conferred upon them.

Chapter 3 -- Optional Forms of County Government; General Provisions

This chapter makes substantive changes by creating a uniform procedure for counties seeking to adopt one of the five optional forms of government. Currently, the procedures differ slightly from form to form. This new uniform procedure will have no impact on the counties which are already operating under an optional form.

Chapter 5 -- County Executive Form of Government

Section 15.2-503, relating to holding a referendum on electing the county chairman at large, makes a substantive change by broadening the application of the section from Prince William County to any county with the county executive form. This change is made since Prince William County already elects its county chairman at large. Also, in the same section, the publication requirement is changed from four to three weeks in order to be consistent with certain other notice requirements within Subtitle I.

In § 15.2-525, the requirement that the chief assessing officer be approved by the State Tax Commissioner is deleted since it appears outdated and is not applicable to counties generally.

Chapter 6 -- County Manager Form of Government

In § 15.2-603, the publication requirement is changed from four to three weeks in order to be consistent with certain other notice requirements within Subtitle I.

In § 15.2-613, the maximum period of temporary service appointments is increased from sixty days to twelve months to more accurately reflect the current local practice.

In § 15.2-616, the governing body is given authority to establish additional county departments as needed. Under current law, the governing body is limited to certain named departments, some of which are outdated or unused. This change is consistent with the practice of most other localities.

In § 15.2-624, the requirement that the chief assessing officer be approved by the State Tax Commissioner is deleted since it appears outdated and is not applicable to counties generally.

Chapter 8 -- Urban County Executive Form of Government

In § 15.2-833, the requirement that the chief assessing officer be approved by the State Tax Commissioner is deleted since it appears outdated and is not applicable to counties generally.

Old Article 8 (§ 15.1-791 et seq.) of this chapter, relating to creation of transportation service districts, is relocated as proposed Chapter 48 since it is not applicable solely to counties with the urban county executive form of government.

Chapter 11 -- Powers of Cities and Towns

Article 1 is made up of what is referred to as the “uniform charter powers.” Many of the sections have been relocated to other chapters. The powers of the remaining sections are automatically conferred on cities and towns in § 15.2-1100 (also, see § 15.2-204). This is a substantive change as current law requires that the powers be specifically conferred upon the locality. Chartered counties continue to have only those powers specifically conferred upon them as stated in § 15.2-204.

Chapter 13 -- Joint Actions by Localities

This chapter brings together various sections related to joint actions by localities, including the Regional Competitiveness Act, enacted in 1996. A substantive change is made in § 15.2-1300 (§ 15.1-21), regarding the joint exercise of powers by localities, by changing “shall” to “may” in the first sentence of subsection D, thereby allowing localities greater flexibility in determining what provisions should be contained in a joint agreement.

Chapter 14 -- Governing Bodies of Localities

This chapter brings together sections related to the authority, powers and duties of local governing bodies and attempts to create a basic statutory structure applicable to all localities. New sections are proposed to fill existing gaps in the law. This approach is consistent with the 1971 Constitution, which combined two articles (one for counties, the other for municipalities) into one article for all localities.

Sections 15.1-827 and 15.1-827.1, relating to salaries of town mayors and council members, are relocated to Title 14.1 where similar statutes for cities and counties are found.

Section 15.2-1414 makes a substantive change by expanding certain population enumeration authority to counties and towns and by deleting an outdated fee provision. However, these changes are likely to have little impact.

Section 15.2-1416, relating to regular meetings of governing bodies, changes the minimum meeting frequency of county boards from once a month to six times per year. Also, municipalities are added to this section in order to create a degree of uniformity among localities. However, as a practical matter, this topic is often addressed in city and town charters.

In Article 4, § 15.1-826 is repealed, thereby eliminating the requirement that towns levy taxes only after a 2/3 vote of council. This will provide a uniform rule applicable to all localities. Towns can continue to require a greater vote by charter.

In § 15.2-1430, penalties of bonds are increased in accordance with the authorized increase of penalties for Class 1 misdemeanors passed several years ago. Also, the provisions are expanded to include counties.

Chapter 15 -- Local Government Personnel; Qualification for Office; Bonds; Dual Office Holding and Certain Local Government Officers

This chapter provides a framework applicable to local government personnel. Provisions regarding bonds are extensively rewritten to reflect the fact that certain officers are now covered by state rather than local blanket bond provisions.

Chapter 16 -- Local Constitutional Officers, Courthouses and Supplies

This chapter combines sections related to constitutional officers. A separate article is created for each constitutional officer which, at a minimum, sets forth the basic duties of the office.

Chapter 17 -- Police and Public Order

The applicability of Article 4, regarding special police officers, was expanded from counties to counties and cities by the 1996 General Assembly. This draft expands these provisions further to include towns.

Chapter 18 -- Buildings, Monuments and Lands Generally

Similar sections are gathered with an effort to delete repetitive material and provide uniformity among counties, cities and towns, as appropriate. As a result, certain sections that are currently applicable only to counties or municipalities have been expanded to include all localities. For example, see §§ 15.2-1800, 15.2-1802, 15.2-1803, 15.2-1806 and 15.2-1808.

Chapter 19 -- Condemnation

Old Article 1, relating to condemnation, is extensively rewritten for consistency and clarity. Sections related to condemnation from other chapters are shown here and either amended or repealed. There is no intent to expand the instances in which property may be condemned, but only to make the Code more uniform and consistent in this area. Old Articles 2 and 3 are now found in proposed Chapter 24.

Chapter 20 -- Streets and Alleys

Related sections are relocated to this chapter in an effort to provide some uniformity among counties, cities and towns, as appropriate. However, because of the limitations set forth in § 15.2-2000 A, many of this chapter’s provisions are not generally applicable to counties. The term “public right-of-way” is defined in § 15.2-2000 C and is used in place of “public way” and other descriptions.

Chapter 21 -- Franchises; Sale and Lease of Certain Municipal Public Property; Public Utilities

Section 15.2-2120, regarding enforcement of liens, is expanded to include all localities in order to create a consistent policy. Section 15.2-2128, regarding denial of certain sewage system applications, is expanded to include all towns which have adopted a master plan for sewerage rather than only those with specific authority in their charters. Many other changes are made throughout the chapter in an attempt to delete outdated provisions and provide uniformity among localities when appropriate.

Chapter 22 -- Planning, Subdivision of Land and Zoning

Portions of this chapter, which contains few significant changes, are reorganized to improve usability. For example, sections related to conditional zoning are grouped together beginning at § 15.2-2296.

Section 15.2-2223, regarding adoption of a comprehensive plan, contains relocated provisions requiring the inclusion of recycling centers in the plan and adds them to the list of items which “may” be included in the plan. This appears to be a more appropriate location. Also, § 15.2-2289, regarding disclosure of real parties in interest, is expanded from twelve named localities to all localities. This was thought to be a better approach than continuing to add new localities to the list each year.

Chapter 24 -- Service Districts; Taxes and Assessments for Local Improvements

Notice requirements in §§ 15.2-2400 and 15.2-2401 are changed from three weeks to two for greater conformity with similar provisions.

Chapter 25 -- Budgets, Audits and Reports

This chapter makes a substantive change in § 15.2-2500 by requiring towns with a population of under 3,500 to follow the same fiscal year as all other localities since there does not appear to be any reason for allowing small towns to follow a different fiscal year.

Chapter 30 -- Special Courts

There are no substantive changes in this chapter. An attempt is made throughout Subtitle III to clarify the role of the special court by making a clear distinction between the special court and the circuit court. There is no attempt to either expand or reduce the role of the special court.

Chapter 35 -- Consolidation of Localities

The present five articles are reduced to two. The first three present articles, each dealing with consolidation of like units of government into a like unit of local government, are combined into one article having standard terminology and procedure. Certain substantive changes are necessarily made throughout proposed Article 1 in order to achieve this result. The primary distinction between the three articles, the requirement of a county referendum in present Article 1, is retained. The last time any of these three articles appears to have been used was in 1958 when the Cities of Warwick and Newport News consolidated as the City of Newport News.

Proposed Article 2, concerning consolidation of unlike units of local government, is the article most used. Its provisions are adopted with a minimum of change.

Present Article 5 is recommended for deletion since it has limited applicability and has not been used in over 25 years.

Chapter 40 -- Judicial Determination of City Status

There are substantive changes made to this chapter, which was adopted in 1971. The investigative and decision-making responsibilities are shifted from the city attorney and circuit court to the Commission on Local Government and special court. This will make the procedures consistent with those of other chapters within this subtitle. Because of the definitions used in Article VII, § 1 of the Constitution, this chapter applies only to cities created after 1971.

Chapter 51 -- Virginia Water and Waste Authorities Act

The order of the sections has been changed and the chapter has been divided into articles. Article 4, which contains financing provisions, contains substantive changes conforming the article to the Public Finance Act (Chapter 26). Existing law is ambiguous as to the kinds of governmental entities that can create authorities under this chapter. In order to remove this ambiguity, references to “political subdivision” are changed to “locality” where appropriate so that only localities will be able to create water and waste authorities.