Can a Virginia city like Manassas Park charge every house and every business a flat fee to fund maintenance of city parks and open-space land?

Plain-English summary

Manassas Park wanted to fund the upkeep of its parks and "green space" by charging a flat fee to every residential unit and every business unit in the city, rather than tying the charge to property value. Senator Charles Colgan asked the Attorney General whether the city had authority to do that under Virginia law, and whether the uniformity clause in Article X, § 1 of the state constitution stood in the way.

Acting AG William Mims concluded that the city could impose the fee. The Open-Space Land Act, at § 10.1-1702(B)(4), expressly allows a city to "levy taxes and assessments" for the purposes the Act covers. That express grant satisfies the Dillon Rule, which otherwise bars Virginia localities from acting without specific legislative authority. And because a flat per-unit charge applies uniformly to each member of the chosen class (residential units, business units), it satisfies the uniformity clause.

The opinion took some care with the fee-versus-tax distinction. Virginia courts label any municipal exaction whose "primary purpose" is to raise revenue as a tax, regardless of what the locality calls it. A genuine fee-for-service must show a "reasonable correlation" between the benefit conferred and the cost exacted. Here, because § 10.1-1702(B)(4) directly authorizes the levy of "taxes and assessments," the AG concluded the city did not need to satisfy the fee-for-service correlation test; the statute supplied the authority to impose the charge as a tax.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia localities operate under the Dillon Rule: they have only the powers expressly granted by the General Assembly, those necessarily implied, and those essential to the granted powers. Any doubt about the existence of a power is resolved against the locality. That makes the question of statutory authority for any new fee or tax the first stop.

The Open-Space Land Act, codified at Va. Code Ann. §§ 10.1-1700 to 10.1-1705, authorizes "public bodies" (defined to include any municipality) to acquire interests in land to preserve open-space land for park, recreational, conservation, or historic-scenic purposes. The Act provides at § 10.1-1702(B)(4) that a city may "levy taxes and assessments" for Open-Space Land Act purposes. That clause is the operative authority the opinion relied on.

Article X, § 1 of the Virginia Constitution provides that "[a]ll property ... shall be taxed" and "[a]ll taxes ... shall be uniform upon the same class of subjects." The Supreme Court has held that this clause is not self-executing; it requires legislation to give effect to taxing power. The Open-Space Land Act's authorization in § 10.1-1702(B)(4) supplies that statutory hook.

Common questions

Did the AG actually answer whether the fee was a "fee" or a "tax"?

Not directly. The AG observed Virginia's standard fee-versus-tax test (a fee-for-service must have a reasonable correlation between benefit and cost; a charge whose primary purpose is to raise revenue is a tax regardless of label). But because § 10.1-1702(B)(4) authorizes the levy of "taxes and assessments" for Open-Space Land Act purposes, the city had authority to impose the charge as a tax, so the AG concluded the fee/tax distinction was not dispositive on these facts.

Could a Virginia city use this approach for purposes other than open space and parks?

The opinion was narrow to the Open-Space Land Act. The reason a flat per-unit charge worked was that § 10.1-1702(B)(4) supplied an express statutory authorization to "levy taxes and assessments." A locality looking to impose a similar flat charge for, say, road maintenance or general operations would have had to point to a different express grant of taxing or fee authority.

Wouldn't a flat fee violate the uniformity clause if applied to all units regardless of property value?

No, under the analysis the AG used. The uniformity requirement applies "upon the same class of subjects," and the AG read the Open-Space Land Act as authorizing a tax in which the class is "residential units" and "business units" within the city, with the fee uniform across each class. A different uniformity question might be raised if the city tried to apply different flat amounts to similarly situated units.

Did the AG decide whether Manassas Park's specific proposal complied with the law?

No. The AG answered the legal question Senator Colgan presented: whether the Open-Space Land Act authorizes a municipality to impose a flat per-unit fee for parks. Whether any particular ordinance Manassas Park might adopt would satisfy state law in operation (proper class definition, proper procedure, actual use of proceeds) is a separate factual matter the AG did not resolve.

Citations

• Va. Code Ann. § 10.1-1700 (defining "open-space land" and "public body")
• Va. Code Ann. § 10.1-1701 (comprehensive-plan conformity)
• Va. Code Ann. § 10.1-1702(B)(4) (city's authority to levy taxes and assessments under the Open-Space Land Act)
• Va. Code Ann. § 10.1-1703 (acquisition of open-space land)
• Va. Const. art. X, § 1 (uniformity of taxation)
• Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008) (revenue-raising primary purpose makes an enactment a tax)
• Mountain View Ltd. P'ship v. Clifton Forge, 256 Va. 304, 504 S.E.2d 371 (1998) (reasonable-correlation test for municipal fees)
• Commonwealth v. Stringfellow, 173 Va. 284, 4 S.E.2d 357 (1939) (uniformity clause is not self-executing)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-026-Colgan.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

May 28, 2009

The Honorable Charles J. Colgan
Member, Senate of Virginia
10677 Aviation Lane
Manassas, Virginia 20110-2701

Dear Senator Colgan:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a municipal corporation is authorized to impose a flat fee on every residential unit and every business unit within the municipality for the purpose of providing funding to maintain parks and open space owned by the municipality.

Response

It is my opinion that pursuant to the Open-Space Land Act, a municipal corporation may impose a flat fee on every residential unit and every business unit within the municipality to provide funding to maintain parks and open-space land owned by the municipality.

Background

You advise that the governing body of the City of Manassas Park is considering the imposition of a flat fee to each residential and business unit within the City. The City states that the fee would be used to provide funding for parks ("green space"). The potential fee would not be assessed to each property, but rather to each "unit," e.g., a single family house, apartments, business suites, and the like.

Specifically, the City questions whether the proposed fee is consistent with the uniformity requirements of Article X, § 1 of the Constitution of Virginia. Therefore, you seek clarification to determine whether the City is authorized to impose such fee.

Applicable Law and Discussion

The power of a local governing body, unlike that of the General Assembly, "must be exercised pursuant to an express grant"[1] because its powers "are limited to those conferred expressly or by necessary implication."[2] "If the power cannot be found, the inquiry is at an end."[3] The Dillon Rule requires a narrow interpretation of all powers conferred on local governments since they are delegated powers.[4] Therefore, any doubt as to the existence of power must be resolved against the locality.[5]

The Open Space Land Act[6] authorizes public bodies to protect open space by acquiring easements in gross to preserve open-space land.[7] The Act defines "open-space land" as "any land which is provided or preserved for (i) park or recreational purposes, ... [or] (iii) historic or scenic purposes."[8] It also defines a "public body" to include "any ... municipality."[9] Section 10.1-1701 provides also that "[t]he use of the real property [purchased] for open-space land shall conform to the official comprehensive plan for the area in which the property is located."

The Supreme Court of Virginia has said that "when the primary purpose of an enactment is to raise revenue, the enactment will be considered a tax, regardless of the name attached to the act."[10] The Virginia Supreme Court has established that the appropriate inquiry into imposition of a municipal fee is whether the fee is a bona fide fee-for-service or an "invalid revenue-generating device."[11] There must be a reasonable correlation between the benefit conferred and the cost exacted by any ordinance imposing a tax labeled as a fee.[12] The reasonable correlation test is determinative of whether a fee enacted by a municipality is a permissible exercise of its police power as opposed to an impermissible revenue-producing device in the form of a special assessment, impact fee or the like. Whether an act is a valid fee or an impermissible tax does not depend on the label the municipality applies to it.[13] In this matter, § 10.1-1702(B)(4) permits a city to "levy taxes and assessments" for purposes of the Open-Space Land Act.

Article X, § 1, of the Virginia Constitution establishes the general rule that, except as otherwise provided in the Constitution, "[a]ll property ... shall be taxed," and "[a]ll taxes ... shall be uniform upon the same class of subjects." However, courts have long recognized that the mandate of § 1 is "not self-executing, and legislation is necessary to carry it into effect. One must be able to put his finger upon the letter of authority."[14] In this matter, § 10.1-1702(B)(4) provides the apparent statutory authority to impose such a flat fee which is uniform upon each residential and business unit.

Application of the Dillon Rule and the Open-Space Land Act to the facts you present support the conclusion that the City is authorized to impose the tax you describe.

Conclusion

Accordingly, it is my opinion that pursuant to the Open-Space Land Act, a municipal corporation may impose a flat fee on every residential unit and every business unit within the municipality to provide funding to maintain parks and open-space land owned by the municipality.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. Nat'l Realty Corp. v. Va. Beach, 209 Va. 172, 175, 163 S.E.2d 154, 156 (1968).
2. Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975) (noting corollary to Dillon Rule).
3. Commonwealth v. County Bd., 217 Va. 558, 575, 232 S.E.2d 30, 41 (1977).
4. See Op. Va. Att'y Gen: 2002 at 77, 78; 1974-1975 at 403, 405; see also Bd. of Supvrs. v. Countryside Invest. Co., 258 Va. 497, 504-05, 522 S.E.2d 610, 613-14 (1999) (holding that county board of supervisors does not have unfettered authority to decide what matters to include in subdivision ordinance; must include requirements mandated by Land Subdivision and Development Act and may include optional provisions contained in act).
5. 2A EUGENE MCQUILLEN, THE LAW OF MUNICIPAL CORPORATIONS § 10.19, at 369 (3d ed. 1996); Op. Va. Att'y Gen.: 2002 at 83, 84; 2000 at 75, 76.
6. See VA. CODE ANN. tit. 10.1, ch. 17, §§ 10.1-1700 to 10.1-1705 (2006).
7. See § 10.1-1703; 1993 Op. Va. Att'y Gen. 7, 8.
8. Section 10.1-1700.
9. Id.
10. Marshall v. N. Va. Transp. Auth., 275 Va. 419, 431, 657 S.E.2d 71, 77 (2008). "[S]tatutes imposing taxes are to be construed most strongly against the government, and in favor of the citizen, and are not to be extended by implication beyond the clear import of language used. Whenever there is just doubt, 'that doubt should absolve the taxpayer of his burden.'" City of Winchester v. Am. Woodmark Corp., 250 Va. 451, 456, 464 S.E.2d 148, 152 (1995) (alteration in original) (citation omitted), quoted in In re Tultex Corp., 250 B.R. 560, 564 (2000).
11. See Mountain View Ltd. P'ship v. Clifton Forge, 256 Va. 304, 312, 504 S.E.2d 371, 376 (1998); see also Tidewater Ass'n of Homebuilders v. Va. Beach, 241 Va. 114, 400 S.E.2d 523 (1991); McMahon v. Va. Beach, 221 Va. 102, 267 S.E.2d 130 (1980).
12. Id.
13. See supra note 10 and accompanying text.
14. Commonwealth v. Stringfellow, 173 Va. 284, 291, 4 S.E.2d 357, 360 (1939) (interpreting § 168 of 1902 Constitution of Virginia, predecessor to Article X, § 1).