City of Alexandria, Virginia
________________
MEMORANDUM
DATE: JUNE 20, 2023
TO: THE HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL
THROUGH: JAMES F. PARAJON, CITY MANAGER /s/
FROM: SARAH G. TAYLOR, ASSISTANT CITY MANAGER/LEGISLATIVE DIRECTOR
DOCKET TITLE:
TITLE
Mandatory and Permissive Local Authority Granted by 2023 General Assembly Legislative Action.
BODY
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ISSUE: Mandatory and permissive authority granted by 2023 General Assembly action.
RECOMMENDATION: That City Council:
(1) Receive information regarding new laws that mandate City action, including action that may be required of Council; and
(2) Review what new, permissive authority it wishes to exercise and provide direction to staff.
BACKGROUND: Virginia courts recognize no inherent local government powers; this is the legal doctrine known as “Dillon’s Rule.” As a Dillon Rule state, the governing authority of Virginia localities is expressly limited to what is expressly granted to them by the legislature, by state statute, or written in their municipal charter.
Therefore, each session of the General Assembly, bills may be passed and signed into law which grant localities certain governing authority; this authority may be mandatory or permissive. Once these laws go into effect and this authority is granted, it falls to the locality to appropriately implement whatever mandatory authority is required of them and determine whether they want to take advantage of any permissive authority granted to them by the General Assembly.
During the 2023 session of the General Assembly, legislation was passed, and signed into law by the Governor, that in some cases mandates localities to act, and in other cases grants permissive authority to localities in a number of subject areas.
Information on the new laws which mandate City action is provided here for your awareness, and City staff will work to implement these changes as necessary.
New laws which provide permissive authority to the City are presented with information from staff subject matter experts in City Departments and Agencies that would be impacted by new, permissive authority and have provided guidance to Council for their consideration as to what permissive authority it wishes to exercise.
DISCUSSION: Several new laws require action by the City in order to comply with these new mandates. These mandates include analysis of the mandate and staff feedback on what is required in order for the City to be in compliance with these mandates:
Mandates
1. Bill Number: SB 1151
Description: This new law standardizes the frequency and length of time that notices of certain meetings, hearings, and other intended actions of localities must be published in newspapers and other print media.
The notice provisions included in the new law are organized into the following three groups: (i) publication required one week before the meeting, hearing, or intended action; (ii) publication required two consecutive weeks before the meeting, hearing, or intended action; and (iii) publication required three consecutive weeks before the meeting, hearing, or intended action.
In addition, the new law amends provisions related to the content of notices for zoning ordinances and amendments to such ordinances by removing the requirement that such notices contain a descriptive summary of the proposed action and providing that such notices shall include the street address or tax map parcel number of the parcels subject to the action. In cases where the intended action affects more than 25 parcels, the notice must also include the approximate acreage subject to the intended action.
Finally, the new law removes the requirement that notices of proposed amendments to a zoning map state the general usage and density range of the proposed amendment and the general usage density set forth in the applicable part of the comprehensive plan.
As signed, this new law goes into effect on 1 July.
(Note that while there was a similar bill passed and signed into law (HB 2161), SB 1151 was signed into law first and takes precedence.)
Staff Analysis: No Immediate Council Action Required - Possible Ordinance Changes in the Future.
Staff in the City Attorney’s Office (CAO) has reviewed the 61 code sections affected by this new law and analyzed if the code sections applied to Alexandria in the first place, and then if so, which attorney in the CAO is the appropriate subject matter expert.
Even for changed code sections that are applicable to Alexandria, there is not necessarily a required mandatory or optional ordinance change. For instance, the change to the state’s C-PACE ordinance applies to noticing for enactment of a CPACE ordinance, so there’s nothing in our already enacted local CPACE ordinance to amend.
Should any of the changes require an ordinance change, the appropriate attorney will work with staff in the affected departments to make whatever changes are necessary and bring any necessary ordinance changes to Council in the future.
2. Bill Number: HB 2494
Description: This new law requires any locality with a population greater than 3,500 to submit a report to the Department of Housing and Community Development summarizing the adoption or amendment of any local policies, ordinances, or processes affecting the development and construction of housing during the preceding fiscal year. The report shall include information regarding:
• Adoption or amendment of a local proffer policy enacted by the locality;
• Adoption or amendment of any provisions of the zoning ordinance affecting the development, redevelopment, or construction of single-family or multifamily housing;
• Adoption or amendment of any provisions of the subdivision ordinance affecting the development, redevelopment, or construction of single-family or multifamily housing;
• Comp plan revisions affecting the location, density, or character of single-family or multifamily housing;
• Adoption or amendment of any ordinances, incentives, or policies designed to encourage the development, redevelopment, or construction of housing, including accessory dwelling unit ordinances, affordable dwelling unit ordinances, fee waivers, density bonuses, waiver or reduction of local parking requirements, new construction or rehabilitation tax incentives, and development standard modifications; and
• Changes to any local fees associated with the reviewing, permitting, and construction of residential development activities.
This new law requires such localities to submit the report annually by September 1 in accordance with any forms developed by DHCD and requires DHCD to make such reports available on its website.
As signed, this new law goes into effect on 1 July.
Staff Analysis: No Council Action Required.
When this was initially proposed, staff concluded it would be a good opportunity to summarize and communicate our efforts in this area. Staff already communicates our activities in this space for various audiences so producing this report annually will not be a significant burden on staff. Most of the items required in this report are already covered in the Planning and Zoning Implementation Report; those items not included in that report would be provided by Housing.
Since this report would simply be a summary of past actions, it would not be a policy document, and would not require Council review or action.
3. Bill Number: HB 1942
Description: This new law requires that, in any county, city, or town that conducts an annual or biennial reassessment of real estate or in which the reassessment of real estate is conducted primarily by employees of the locality under direction of the commissioner of the revenue, if the proposed real estate tax rate exceeds the “lowered tax rate” that would result in the locality collecting no greater than 101 percent of the previous year’s real property taxes, the notice shall set out the effective tax rate increase.
As signed, this new law goes into effect on 1 July.
Staff Analysis: No Council Action Required.
This mandate will be met by staff and Finance and will add the required language on our 2024 Real Estate Assessment Notice, which will go out in February 2024.
4. Bill Number: HB 1674
Description: This new law requires localities, when developing a transportation plan as part of the locality's comprehensive plan, to include freight corridors when designating transportation facilities that support the planned development of the locality.
As signed, this new law goes into effect on 1 July.
Staff Analysis: No Immediate Council Action Required - Possible Code Changes in the Future.
The City’s transportation plan (Alexandria Mobility Plan (AMP)) may need to be updated to include “freight corridors” when the plan is next updated. However, additional consideration would need to be given related to the law’s applicability, since the City’s Charter also governs its master plan, and/or whether the AMP already considers “freight corridors”.
Staff indicates that we may already be addressing this issue as the City already codifies “truck routes” which could suffice for “freight corridors.” If, through a new Small Area Plan (SAP), we determined that these needed to be modified or expanded, we would likely update the truck routes in code at the same time.
Going forward, staff will need to ensure that appropriate attention is paid to truck routes (or “freight corridors”) during the SAP development process. With this new law, staff will need to ensure we focus on these routes/corridors and consider them as we map the transportation elements from those plans.
5. Bill Number: HB 1671
Description: This new law requires localities with a population greater than 3,500 to submit an annual report no later than March 1 to the Department of Housing and Community Development containing the total fee revenue collected by the locality over the preceding calendar year in connection with the processing, reviewing, and permitting of applications for residential land development and construction activities.
As signed, this new law goes into effect on 1 July.
Staff Analysis: No Council Action Required.
The City collects and reports this information already, in some manner. Staff reports that this will require only minimal additional work in order to comply with this new reporting requirement.
6. Bill Number: HB 1442
Description: This new law requires the tax-assessing officer of a county, city, or town to send the Department of Taxation the information necessary to publish the current rate of the transient occupancy tax imposed in the locality as soon as the rate information is available after request by the Department or within 30 days of a rate change. If the tax-assessing officer fails, without good cause, to furnish this information to the Department on demand, the officer would be guilty of nonfeasance in office.
The new law also provides that any change in the rate of any local transient occupancy tax would become effective no earlier than the first day of the calendar quarter following the calendar quarter in which the change in such rate is enacted. Failure to provide notice to the Department would require the county, city, or town to apply the preceding effective tax rate until 30 days after notification of such change is provided to the Department.
The new law requires the tax-assessing officer of a locality to administer and enforce the assessment and collection of transient occupancy taxes from accommodations intermediaries and to provide accommodations intermediaries with adequate information to enable identification of transient occupancy tax rates, the applicable jurisdiction, discounts, deductions, or exemptions.
The new law also requires accommodations intermediaries to file a return on or before the 20th day of each month for the preceding calendar month with such return showing: (i) gross receipts, discounts, deductions, or exemptions; (ii) the rate applied to the net receipts; (iii) the total transient occupancy tax due; (iv) any penalties or interest due; and (v) where applicable, the number of room nights, the room tax rate applied, the total amount of room tax due, and any regional transportation transient occupancy taxes due.
As signed, this new law goes into effect on 1 July.
Staff Analysis: No Council Action Needed.
The City is currently in compliance with this new law. City staff has been in communication with the Department of Taxation and the State already has our TOT rates listed in their online chart. Since the City has no immediate plans to change our rates, nothing else is required at this time.
7. Bill Number: HB 1836/SB 1089
Description: This new law requires the sheriff executing a writ of eviction to return such executed writ to the clerk of court who issued such writ.
Staff Analysis: No Council Action Needed.
Sheriff Casey indicated that the Alexandria Sheriff’s Office already does this so, while a mandate, it is one the ASO already meets.
8. Bill Number: HB 2054/SB 1267
Description: This new law requires general district courts, juvenile and domestic relations district courts, and circuit courts, in cases in which a defendant is found not guilty of any offense after a trial at which evidence of the defendant's mental condition at the time of the alleged offense was introduced, to make available to the defendant information regarding services provided by the community services board and how such services may be accessed.
The new law also requires each community services board to develop, regularly update, and make available to the general district court, juvenile and domestic relations district court, and circuit court in the same locality information regarding the services provided by the community services board (specifically including services for individuals with mental illness, intellectual or developmental disabilities, or autism spectrum disorder) and information about how to access such services.
As signed, the new law goes into effect on 1 July.
Staff Analysis: No Council Action Required.
Staff reports that the Virginia Association of Community Services Boards (VACSB) has worked with the office of the State Supreme Court (SSC) to develop a basic information sheet that will apply to all 40 CSBs. Alexandria CSB staff have already input our information into the online form. This info will be sent to the Courts from the SSC’s office. Alexandria CSB may be asked for additional, supplemental information from our Courts but the current plan is to utilize this standard form via VACSB.
9. Bill Number: HB 2371/SB 942
Description: This new law removes the requirement that each member of the Alexandria Historical Restoration and Preservation Commission give a surety bond in the sum of $10,000 that is executed by a surety company, payable to the Governor and his successors in office, and conditioned upon the member's faithful performance of his duties.
Staff Analysis: No Council Action Required.
Sine the Alexandria Historical Restoration and Preservation Commission (AHR&PC) was created by state law and is a political subdivision of the Commonwealth, no Council action is required to implement this change.
The City Clerk’s Office and Historic Alexandria staff to the Commission will need to review materials related to the AHR&PC to ensure that references to the surety bond requirements are removed from all materials and communicate to both current and prospective members that this requirement is no longer applicable to members of the Commission.
10. Bill Number: HB 1685
Description: This new law requires that applications for local business licenses must clearly set out the due date for the application and the amount of any penalty to be charged for late filing of the application, the underpayment of estimated tax, and late payment of tax.
The new law also requires that any bill issued by the treasurer or other collecting official and any communication from the assessing official that imposes a penalty or interest for a local Business Professional and Occupational License (BPOL) tax must separately state the total amount of tax owed, the amount of any interest assessed, and the amount of the penalty imposed. Similarly, any bill issued by the treasurer imposing a penalty or interest for a local machinery and tools tax or business tangible personal property tax must separately state the total amount of tax owed, the amount of any interest assessed, and the amount of the penalty imposed.
As signed, the bill has an effective date of 1 July.
Staff Analysis: No Council Action Required.
No action is required by staff as the City is already in compliance with this new law.
11. Bill Number: HB 2007
Description: This new law requires a public body to make available upon request and post on its website or otherwise publish a written policy (i) explaining how the public body assesses charges for accessing or searching for requested records and (ii) noting the current fee charged, if any, by the public body for accessing and searching for the requested records.
As signed, the bill has an effective date of 1 July.
Staff Analysis: No Council Action Required.
The City is required to post a written policy on how FOIA charges are assessed and note the current fee charges, if any, for accessing and searching for records. CAO staff is working to draft the required disclosure which will be posted at: www.alexandriava.gov/FOIA <http://www.alexandriava.gov/FOIA>.
12. Bill Number: SB 1459
Description: This new law prohibits any employee or agent of any public body or person or entity contracting with any such agency from downloading or using any application, including TikTok or WeChat, or accessing any website developed by ByteDance Ltd. or Tencent Holdings Ltd. (i) on any government-issued device or government-owned or government leased equipment, including mobile phones, desktop computers, laptop computers, tablets, or other devices capable of connecting to the Internet, or (ii) while connected to any wired or wireless Internet network owned, operated, or maintained by the Commonwealth.
The new law does allow the chief law enforcement officer of any locality/institution of higher education to make exceptions for the purpose of participating in any law-enforcement-related matters.
As signed, the bill has an effective date of 1 July.
Staff Analysis: No Council Action Required.
City legal and procurement staff are working to update current contract language, as well as Purchase Order terms and conditions, to reflect this new prohibition.
In addition, ITS is reviewing the requirements of the new law. Earlier this year, ITS staff implemented detection and prevention security controls related to TikTok and WeChat and are working to ensure the City complies with this mandate from an IT perspective. Staff notes that reconciling any and all other services under the holding companies may take time to understand, beyond the clear explicit applications for TikTok and WeChat.
13. Bill Number: HB 2317/SB 789
Description: This new law increases the daily pay to jurors in trials from $30 to $50. Current law requires that cities and counties pay jury duty costs for civil trials and trials involving misdemeanors under local ordinances.
As signed, the bill has an effective date of 1 July.
Staff Analysis: No Council Action Required.
Staff review notes that this new law will have a fiscal impact on the City, as Alexandria would pay the increased fee amount for all civil case jurors and criminal case jurors where the infraction is of a municipal statute. Staff estimates the fiscal impact at $6,000 to $12,000 annually, based on a 3-year average number of cases.
However, staff also noted that jury trials are increasing in frequency due to the change in the law to eliminate jury sentencing, so these costs are likely to rise as more juries are demanded.
In addition to these mandates, localities were granted optional authority that Council may want staff to exercise. The optional authority granted to the City Council by the General Assembly in 2023 is outlined below and includes analysis of the new authority and staff recommendation whether City Council should pursue these new opportunities for authority.
Permissive Authorities
1. Bill Number: SB 1344
Description: Allows the City of Alexandria to enter into a contract with the Department of Health for the local administration of local health services.
Staff Analysis: No Immediate Council Action Required.
This new law allows the City of Alexandria to decide whether to administer the local health department as a City Agency through a contract with the Virginia Department of Health. The transition from VDH to local administration always occurs on July 1, the beginning of the state fiscal year.
Based on lessons learned from Arlington, Fairfax, Loudoun, and Prince William, the process of becoming a locally administered health department requires at least one full year of intensive planning. (Loudoun took two years to plan the transition. Prince William continues to explore whether to operate the health department as a County Agency.)
2. Bill Number: HB 1572/SB 1291
Description: Provides that it is a Class 1 misdemeanor for any person to knowingly report, or cause another to report in reliance on intentionally false information provided by such person, a false emergency communication to any emergency personnel that results in an emergency response.
The bill also provides that it is a Class 6 felony if such false emergency communication results in an emergency response and any person suffers a serious bodily injury as a direct and proximate result of the false emergency communication and a Class 5 felony if any person is killed as a direct and proximate result of the false emergency communication.
The bill authorizes any locality to provide by ordinance that a person convicted of such false emergency communication shall be liable for the reasonable expense in responding to such false emergency communication.
Staff Analysis: Council Action Required - Ordinance.
Should the City wish to take advantage of the authority to collect expenses from an individual convicted of a false emergency communication resulting in an unnecessary emergency response, Council will need to adopt an ordinance to this effect.
Staff recommends that Council take advantage of this authority and, at the direction of Council, will prepare and present an ordinance for consideration this fall.
3. Bill Number: HB 1510
Description: The new law authorizes localities to establish programs, by ordinance, to provide regulatory flexibility to encourage the preservation, restoration, or development of “urban green space.” For purposes of this new section of law, “urban green space” means urban land, partly or completely covered with grass, trees, shrubs, or other vegetation, that is located in a densely populated area that has a high concentration of residential or commercial structures. "Urban green space" includes street trees, city parks, sports fields, gardens, and greenways. To qualify as urban green space, the use of such land must make a substantive impact on the reduction of the urban heat effect, the offsetting of greenhouse gas emissions, or the mitigation of stormwater.
The regulatory flexibility may include (i) a reduction in permit fees or (ii) a streamlined process for the approval of permits.
As signed, the new law goes into effect on 1 July.
Staff Analysis: No Council Action Needed.
This new law would allow the City to implement a program that reduces development fees or speeds permit approvals in exchange for a commitment to provide urban green space.
Staff notes that if Council is interested in taking advantage of this new authority, staff would want to look at whether the potential value of a reduction in fees or review times is sufficient to induce provision of more urban green space than we currently get.
4. Bill Number: HB 1490
Description: This new law allows localities to allow a contractor of indefinite delivery or quantity contracts, defined in the bill, who is otherwise required to furnish performance and payment bonds in the sum of the contract amount to the public body with which he contracted to furnish such bonds only the dollar amount of the individual tasks identified in the underlying contract. Such contractors shall not be required to furnish the sum of the contract amount if the governing locality has adopted such an ordinance.
As signed, the new law goes into effect on 1 July.
Staff Analysis: Council Action Required - Ordinance Change.
Council and staff supported this legislation during the 2023 Session and staff recommends that the City take advantage of this authority. This authority would allow an on-call (IDIQ) contractor to reduce the bond capacity that is tied up if the amount of task orders awarded is less than the total contract value. We recommend that the contractor be required to demonstrate full contract value bond capacity prior to award of the master contract, but only be required to bond total value of each task order. This still covers our risk, but does not unnecessarily tie up bonding capacity.
This will reduce costs for many of our small contractors and make our on-call contracts more desirable and competitive. Staff has heard anecdotes that some jurisdictions were already following this approach because the VPPA language was unclear. In addition, if this is adopted by our neighboring jurisdictions and not by Alexandria, it will make us a less desirable client and put us at a competitive disadvantage regionally.
In order to take advantage of this new, permissive authority, City Council would be required to adopt an ordinance. Once the ordinance is adopted, staff would then need to revise the City’s standard contracts.
5. Bill Number: SB 1069
Description: This new law will require the driver of a vehicle on a highway to stop when any pedestrian crossing such highway is within the driver’s lane or within an adjacent lane and approaching the driver’s lane until the pedestrian has passed the lane in which the vehicle is stopped. Currently, a driver is required to yield the right-of-way to such pedestrian by stopping and remaining stopped.
The law also provides that localities that are already authorized to install signs directing motor vehicles to yield the right-of-way to pedestrians crossing or attempting to cross a highway may also install signs directing motor vehicles to stop for such pedestrians.
Under the changes to §46.2-924, any operator of a motor vehicle who fails to comply with signs indicating to yield the right-of-way to or stop for pedestrians is guilty of a traffic infraction and punishable by a fine between $100 and $500 in certain localities (including Alexandria). Proceeds of all fines and penalties collected are paid into the Literary Fund or into the localities depending on who writes the ticket and whether state or local law is cited.
As signed, the new law goes into effect on 1 July.
Staff Analysis: Council Action Required - Ordinance Change.
This new law provides the City with additional authority regarding marking pedestrian crossings and provides enhanced penalties for drivers who violate these new pedestrian safety provisions.
Currently:
• Drivers must yield to pedestrians crossing a road, at a clearly marked crosswalk or any regular pedestrian crossing or at any intersection when the speed limit is 35MPH or less, until the person passes the lane the yielding car is in, [46.2-924(A)]
• Alexandria has passed an ordinance which:
o 1) allows the director of T&ES to install signs that require drivers to yield at marked crosswalks; and
o 2) makes a violation of the above a traffic infraction in intersections with yield signs; with a penalty from $100-500. [46.2-924(D)], and 10-3-924.
Once this new law goes into effect on 1 July:
• Drivers will be required to stop when any pedestrian is crossing the road, at a clearly marked crosswalk or any regular pedestrian crossing or at any intersection when the speed limit is 35MPH or less, AND is in the driver’s lane OR is in a lane adjacent to the driver AND approaching the driver’s lane until the pedestrian has passed the driver’s lane. [amended 46.2-924(A)]
• Alexandria may amend our ordinance 10-3-924 to allow the director of T&ES to install signs that require drivers to stop or yield for pedestrians crossing or attempting to cross the road, and a violation of the former at intersections with such signs are guilty of a traffic infraction; with a penalty from $100-500.
With this new law, the City is granted permissive authority to change our yield signs to stop signs for pedestrian crossings, and if so, amend 10-3-924 to reflect that policy change. Note, VA Department of Transportation shall develop criteria for the design, location, and installation of such signs.
If we do not implement this change, drivers will still be required to yield to pedestrians at marked crosswalks where signs are posted or violate 10-3-924, and, theoretically, if drivers yield but don’t stop such a driver could violate 46.2-924 (because that is the law for the whole state as of July 1), which is punished by a fine of not more than $250.
6. Bill Number: HB 2104
Description: Increases the maximum boundaries of a school crossing zone from 600 feet to 750 feet from the limits of school property.
Staff Analysis: No Council Action Required.
This law provides the City additional flexibility in the establishment of school zones, which could potentially extend safety benefits of lower speed limits to challenging crossings that are not currently part of a formal school zone.
The City’s adopted Vision Zero goal is to eliminate fatal and severe crashes by 2028. The adopted Alexandria Mobility Plan also calls for creating a safe, well-maintained and comfortable walking and bicycling environment and making it easier for more people to choose an alternative to driving. This new authority could help the City reach these adopted goals.
A code change is not needed, as City Code Sec. 10-3-873 refers generally to section 46.2-873 of the Code of VA for school crossing zone regulations.
7. Bill Number: HB 2006
Description: Any local public body that charges for the production of records pursuant to this section (FOIA) may provide an electronic method of payment through which all payments for the production of such records to such locality may be made. For purposes of this subsection, "electronic method of payment" means any kind of noncash payment that does not involve a paper check and includes credit cards, debit cards, direct deposit, direct debit, electronic checks, and payment through the use of telephonic or similar communications.
Staff Analysis: No Council Action Required.
While the City accepts electronic payments for other City services, the City does not currently offer electronic payments for FOIA fees due to cost.
STAFF:
Joanna Anderson, City Attorney
Shawn B. Lassiter, Assistant City Attorney
Alexis Quinn, Legislative Assistant/Management Analyst
Karl Moritz, Director, Department of Planning and Zoning
Helen McIlvain, Director, Office of Housing
Kevin Greenlief, Assistant Director, Revenue Division, Department of Finance
Hillary Orr, Deputy Director, Transportation, Department of Transportation and Environmental Services
Emily Poly, Budget Analyst, Office of Management and Budget
Greg Parks, Clerk of Court, Alexandria Circuit Court
Shawn Casey, Sheriff, Alexandria Sheriff’s Office
Phil Caldwell, Executive Director, Alexandria Community Services Board
Gretchen Bulova, Director, Office of Historic Alexandria
Gloria Sitton, City Clerk, Alexandria City Council
Wynndell Bishop, Purchasing Agent, Department of Finance
Ryon Saenz, Deputy Director, Department of Information Technology