Can Arlington County put the proposed Columbia Pike streetcar on the ballot as a non-binding advisory referendum?

Plain-English summary

Arlington County had been planning a 7.4-mile streetcar system at substantial cost (over $250 million for the Columbia Pike segment alone), to be funded primarily through dedicated transportation revenues and no general obligation bonds. The project was controversial: supporters argued it would reduce congestion and strengthen economic development; opponents argued the cost was excessive and bus rapid transit could meet the same needs at lower cost. Delegate Hope asked whether the County could put the question on the ballot as a non-binding advisory referendum so voters could weigh in.

AG Herring said no. The reasoning is a textbook Dillon's Rule application.

Localities have only the referendum powers expressly granted. Section 24.2-684 of the Code says: "No referendum shall be placed on the ballot unless specifically authorized by statute or by charter." Without a charter or a statute specifically authorizing this referendum, no referendum.

Arlington has no charter and operates under the County Manager Plan. Some counties have charters; Arlington does not. It operates under the County Manager Plan of Government (Chapter 7 of Title 15.2). The only referendum authority under that plan is § 15.2-716, which covers establishing a department of real estate assessments. Other generally-applicable Virginia statutes authorize referenda for specific matters (county police force in § 15.2-1702, staggering supervisor elections in § 24.2-219 and -220, electric authority creation in § 15.2-5403, etc.), but none cover a streetcar system advisory question.

The constitutional debt referendum doesn't apply here. Article VII § 10(b) of the Virginia Constitution requires a referendum before a county incurs general obligation debt. But Arlington's financing plan did not include general obligation bonds. The dedicated transportation funds approach avoided the constitutional trigger.

Other AG opinions have reached the same conclusion in similar contexts. A line of opinions going back to the 1970s has consistently held that localities cannot conduct advisory referenda absent specific statutory authorization, even for issues of clear public interest (recreation center in Colonial Heights, rifle transportation rule in Rockbridge County, comprehensive plan adoption in Washington County, school bonds in Fredericksburg, planning district commission membership in Carroll County). The pattern is uniform.

Currency note

This opinion was issued in 2014. 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.

Title 15.2 and Title 24.2 have been amended several times since 2014. The Arlington streetcar project was cancelled in late 2014, so the immediate question became moot. Anyone considering an advisory referendum in a Virginia locality today should consult the current Code provisions, the locality's charter (if any), and any later AG opinions.

Common questions

What is an advisory referendum?
A non-binding ballot question asking voters to express their preference, with the result advisory only (not legally enforceable). Some states allow advisory referenda routinely; Virginia does not, unless specifically authorized.

Why does Virginia require specific authorization?
The state constitution and Dillon's Rule both reflect the principle that localities are creatures of the state and have only the powers the state grants. Adding non-binding questions to a ballot is a state-supervised election process, and the General Assembly has reserved the right to control what goes on the ballot.

Could Arlington adopt a charter to get referendum power?
Charters are granted by the General Assembly. Arlington would need to seek and obtain a special act from the legislature.

What about citizen petitions?
Some other states allow voters to petition for initiative or referendum. Virginia does not have a general initiative process. Specific petition-driven matters (e.g., recall of certain local officials) exist but are not a general initiative right.

Did the General Assembly enact a statute specific to Arlington for this question?
Not at the time of the opinion. Anything that would have authorized the advisory referendum would have had to come from a state-level legislative grant or a charter.

What if the County had used general obligation bonds?
Then Article VII § 10(b) would have required a referendum on the bond issuance itself. That's a different question from an "advisory" referendum on whether to do the project at all. The constitutional referendum is about the financing mechanism, not the project.

Are advisory referenda a good policy?
Policy aside, the AG's role is to interpret existing law. The opinion answers the legal question.

Did the streetcar project go forward?
Arlington cancelled the streetcar project in late 2014 after the County Board changed its position. The cancellation made the advisory referendum question moot.

Background and statutory framework

• Va. Const. art. VII, § 10(b): Referendum required for county general obligation debt.
• Va. Code § 24.2-684: No referendum on the ballot without specific statutory or charter authorization.
• Va. Code § 24.2-101: Defines "referendum."
• Va. Code § 15.2-201: Counties may be granted charters by the General Assembly.
• Va. Code § 15.2-716: Under County Manager Plan, referendum for department of real estate assessments.
• Va. Code § 15.2-749: County Manager Plan referendum procedures (does not expand subjects).
• Va. Code §§ 15.2-1702, 24.2-219, 24.2-220, 15.2-5403: Other generally-applicable referendum statutes for various specific purposes.

The interpretive moves:

• Dillon's Rule resolves doubts against local power.
• § 24.2-684 requires specific authorization for ballot referenda.
• Arlington's County Manager Plan provides only one referendum authorization (real estate assessments department).
• No statute authorizes a transportation-system referendum.
• The general obligation debt constitutional referendum requirement does not apply absent general obligation bonds.

Citations

• Va. Const. art. VII, § 10(b)
• Va. Code §§ 15.2-201, 15.2-716, 15.2-749, 15.2-1702, 15.2-5403
• Va. Code §§ 24.2-101, 24.2-219, 24.2-220, 24.2-684
• Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567 (2012)
• Marble Techs. v. City of Hampton, 279 Va. 409 (2010)
• Bd. of Supvrs. v. Horne, 216 Va. 113 (1975)
• Bd. of Supvrs. v. Countryside Inv. Co., 258 Va. 497 (1999)
• Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397 (1995)
• 2001 Op. Va. Att'y Gen. No. 135
• 1988 Op. Va. Att'y Gen. 359
• 1983 Op. Va. Att'y Gen. 70
• 1978 Op. Va. Att'y Gen. 72
• 1975 Op. Va. Att'y Gen. 331
• 1974 Op. Va. Att'y Gen. 161

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-065_Hope.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 6, 2014

The Honorable Patrick A. Hope
Member, House of Delegates
Post Office Box 3148
Arlington, Virginia 22203

Dear Delegate Hope:

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 Arlington County may conduct an advisory referendum regarding a proposed streetcar system.

Response

It is my opinion that Arlington County lacks the authority to conduct an advisory referendum regarding a proposed streetcar system.

Background

Arlington County has proposed to develop a 7.4-mile streetcar system to reduce congestion and strengthen economic development.[1] The proposed streetcar system includes two segments: (i) the Columbia Pike segment stretching west to east from the Skyline area of Fairfax County to Pentagon City; and (ii) the Crystal City segment stretching north to south from Crystal City to Potomac Yard.[2] The cost of the Columbia Pike segment borne by Arlington County is projected to be in excess of $250 million.[3] Arlington County has stated that the "streetcar funding plan relies on dedicated transportation funds and includes zero homeowner dollars through General Obligation bonds."[4]

Applicable Law and Discussion

In Virginia, localities are not sovereign bodies, but are mere local agencies of the state, having no powers other than such as are clearly and unmistakably granted by the law making power.[5] A county, including Arlington County, may exercise only those powers expressly granted by the General Assembly, or necessarily or fairly implied from those expressly granted powers, and those that are essential and indispensable.[6] "If there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body."[7]

A "referendum" is "any election held pursuant to law to submit a question to the voters for approval or rejection."[8] Section 24.2-684 of the Code of Virginia expressly provides that: "[n]o referendum shall be placed on the ballot unless specifically authorized by statute or by charter." While counties may be granted charters,[9] Arlington does not have one. Instead, it has operated under the County Manager Plan of Government, as set forth in Chapter 7 of Title 15.2 of the Code of Virginia since approximately 1930. Accordingly, its power to hold a referendum on any given subject exists only as may be authorized by either a statute of general application or a statute applicable only to the County Manager Plan of Government.

A number of statutes authorize counties in the Commonwealth to hold referenda in circumstances ranging from the establishment of a county police force[10] to determining whether the election of county supervisors should be staggered,[11] to the creation of an electric authority.[12] A review of the Code of Virginia, however, reveals no statute of general application that would allow Arlington County to conduct a referendum on the proposed streetcar system.

As stated, Arlington operates under the County Manager Plan of Government. Under this type of government, a referendum is authorized only for purposes of establishing a department of real estate assessments.[13] A referendum is not authorized for transportation matters such as streetcar systems.[14]

The only legal authority that might otherwise apply in this scenario, the constitutional requirement that a county conduct a referendum prior to assuming debt to be repaid by general obligation bonds[15], is not implicated because of the financing plan put forward by the County, which does not include general obligation bonds.

I therefore must conclude that, because the General Assembly has neither granted a charter to Arlington County authorizing this type of referendum nor enacted a statute of general application applicable to the County Manager Form of Government granting such authority, Arlington County may not conduct an advisory referendum on the proposed streetcar system. This conclusion is consistent with several prior opinions of the Attorney General.[16]

Conclusion

Accordingly, it is my opinion that Arlington County does not have authority to conduct an advisory referendum regarding a proposed streetcar system.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] See ARLINGTON COUNTY, VA., Streetcar Presentation (Streetcar Update), available at http://sites.arlingtonva.us/streetcar/files/2014/07/Streetcar_handouts_Sept2014.pdf.

[2] Id.

[3] Id.

[4] ARLINGTON COUNTY, VA., News Release: Arlington & Fairfax County Choose Streetcar Program Management Team, available at http://news.arlingtonva.us/releases/arlington-and-fairfax-county-choose-streetcar-program-management-team.

[5] Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567, 576, 727 S.E.2d 40, 44 (citing Marble Techs. v. City of Hampton, 279 Va. 409, 418 (2010)).

[6] Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975) (citations omitted) ("In Virginia the powers of boards of supervisors are fixed by statute and are limited to those conferred expressly or by necessary implication. This rule is a corollary to Dillon's Rule that municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable."); accord Bd. of Supvrs. v. Countryside Inv. Co., 258 Va. 497, 503, 522 S.E.2d 610, 613 (1999).

[7] Bd. of Supvrs. v. Reed's Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 670 (1995).

[8] VA. CODE ANN. § 24.2-101 (Supp. 2014).

[9] Id., § 15.2-201.

[10] Id., § 15.2-1702 (2012).

[11] Sections 24.2-219 (2011) and 24.2-220 (2011).

[12] Section 15.2-5403 (2012).

[13] VA. CODE ANN. § 15.2-716 (2012).

[14] VA. CODE ANN. § 15.2-749 (2012) does set forth the procedures to be followed under the County Manager Plan for conducting a referendum, but only if the referendum is authorized by law. It does not expand or add to the subjects for which a referendum may be held under the County Manager Plan.

[15] See VA. CONST. art. VII, § 10(b).

[16] See, e.g., 2001 Op. Va. Att'y Gen. No. 135 (finding no authority for the City of Colonial Heights to call for advisory referendum regarding the establishment of a recreation center); 1988 Op. Va. Att'y Gen. 359 (finding no authority for Rockbridge County to call for an advisory referendum on prohibiting the transportation of loaded rifles and shotguns on public highways in the county); 1983 Op. Va. Att'y Gen. 70 (concluding that the City of Fairfax may hold an advisory referendum for the abolition of constitutional officers); 1978 Op. Va. Att'y Gen. 72 (concluding that Washington County lacks the authority to hold an advisory referendum on the adoption of a comprehensive plan); 1975 Op. Va. Att'y Gen. 331 (concluding that the City of Fredericksburg has no authority to conduct an advisory referendum on a school bond issue); and 1974 Op. Va. Att'y Gen. 161 (concluding that Carroll County does not have the authority to conduct an advisory referendum on whether to terminate membership in the Mt. Rogers Planning District Commission).