In 2004, the Fairfax County Executive sent a letter to the board of zoning appeals (BZA) stating that the Board of Supervisors “will no longer pay for private legal counsel to represent the BZA and will not permit the County Attorney or his staff to represent the BZA” except in limited situations (where the BZA is alleged to have violated the Freedom of Information Act or where the BZA or its members are sued in their official capacity). In a second letter, the County Executive informed the BZA that it was not “authorized to hire private legal counsel to act in a capacity that it adverse to the interests of the Board of Supervisors…” or the county zoning administrator. In 2006, the BZA filed a declaratory judgment proceeding seeking a declaration that the Board of Supervisors was required to “appropriate and pay” reasonable legal fees for legal counsel chosen by the ZBA to represent it in certiorari proceedings and any litigation arising from the ZBA’s performance of its public functions.
The Supreme Court held that the circuit court did not err in dismissing a declaratory judgment action filed by a BZA against the board of supervisors of the same county based on the court’s conclusion that the BZA does not have the authority to institute litigation on its own behalf. Since a BZA has only those powers expressly granted to it and the Virginia Code contains no express grant of authority allowing a BZA to institute litigation on its own behalf, the Court affirmed the judgment of the circuit court.
As a result of this ruling, the Court never got to the substantive issue in this case – whether the legislative body can refuse to provide funds to pay the legal expenses of another governmental agency. This issue arises frequently, and from an ethics standpoint, where two or more entities from the same local government are in conflict, they are generally entitled to their own independent counsel. That being said, the legislative body must approve the expenditure of funds on behalf of the locality. Where they refuse to do so, and where the requesting board has no other way to pay for the legal services, resorting to a court to resolve the issue makes sense. The Virginia Court, however, casts doubt upon this approach given a usual lack of statutory authority for planning and zoning boards to initiate litigation.
Board of Zoning Appeals of Fairfax County v. Board of Supervisors of Fairfax County, 2008 WL 4181966 (Va. 9/12/2008).
The opinion can be accessed at: http://www.courts.state.va.us/opinions/opnscvwp/1071395.pdf
