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Bill gives farmers a legal pitchfork to sue government

From Lynchburg to Norfolk to Rappahannock, local officials are heaping dirt on a bill that would expose them to costly citizen litigation in zoning and land-use disputes.

Most radically, HB1219, by House Delegate Bob Marshall, would strip city and county ordinances of the presumption of constitutionality, reported Thursday.

In a new report, several municipalities complain about Marshall’s plan. Following are key concerns, paired with responses from Mark Fitzgibbons, a constitutional lawyer who organized “pitchfork protests” on behalf of embattled farmer Martha Boneta against Fauquier County.

Rappahannock County says the personal liability clause in HB 1219 will reduce its staff’s willingness to enforce laws.

Response: “Staff liability occurs only for intentional violations, not errors in judgment.”

Rockingham fears that claims won’t be covered by insurance.

Response: “Property owners do not generally have litigation insurance to cover when counties overreach and violate constitutional rights in zoning enforcement.”

Lynchburg says HB1219 will encourage lawsuits.

Response: “Only under the standards of the law would citizens be able to sue, and any frivolous lawsuits would be quickly dismissed. Put another way, the current lack of liability for localities ‘encourages’ unconstitutional enforcement against citizens.”

Lynchburg also asserts that the bill’s clause — “unreasonable restriction on the free exercise of rights” — is vague.

Response: “The ‘unreasonable restriction’ phrase is used by localities to regulate in many instances. The term has been addressed in many Supreme Court decisions, so it is a verifiable standard.”

Norfolk predicts that the burden of proof on localities will make it more difficult for them to defend actions in court.

Response: “Agreed. Lawsuits would be the result of localities initiating enforcement actions in violation of the Constitution, so the locality should have the burden.”

The report concludes that “financial hardship from awards of damages could be crippling.”

Response: “Welcome to the world that citizens face.”

Read the rest of the story here.

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