Chap. 416.—An ACT to amend an act entitled ‘‘An act to provide a new charter fo
the town of Herndon, in the county of Fairfax, and to repeal an act entitlec
‘An act to incorporate the town of Herndon, in the county of Fairfax’, approvec
January 14, 1879, and all acts amendatory thereof.”, approved March 31, 1938
by adding thereto three new sections numbered Sections 3-a, 3-b and 3-c
Section 3-a providing for a planning commission for the town, Section 3-b pro
viding for compelling books and papers and information to be produced anc
prescribing penalties and Section 3-c relating to, and providing for filing certair
statements before bringing any action against the town. [H B 429

Approved April 1, 1940

1. Be it enacted by the General Assembly of Virginia, That an
Act entitled ‘‘An act to provide a new charter-for the town of Herndon.
in the county of Fairfax, and to repeal an act entitled ‘An act to in-
corporate the town of Herndon, in the county of Fairfax’, approved
January fourteenth, eighteen hundred and. seventy-nine, and all acts
amendatory thereof.’’, approved March thirty-first, nineteen hundred
and thirty-eight, be amended by adding thereto three new sections to
be numbered section three-a, three-b and three-c, which new sections
shall read as follows:

Section 3-a—(a) The Council is hereby authorized and empow-
ered to create by ordinance a planning commission to make and adopt
a master plan for the physical development of the Town. Such plan
shall show the planning commission’s recommendations for the de-
velopment of the territory covered by the plan, including, among
other things, the general location, character and extent of streets,
viaducts, boulevards, parkways, playgrounds, squares, parks, aviation
fields and other public ways, grounds and open spaces, the general
location of public buildings and other public property and the reason-
able and general location; also for the removal, relocation, widening,
narrowing, vacating, abandonment, change of use or extension of
existing ways, grounds, open spaces, buildings, property, utilities or
terminals, as well as a zoning plan for the control of the height, area,
bulk, location and use of buildings and premises. The plan shall be
made with the general purpose of guiding and accomplishing a co-
ordinated, adjusted and harmonious development of the Town and
its environs which will in accordance with existing and future needs,
best promote public health, safety, morals, order, convenience and
general welfare, as well as efficiency and economy in the process of
development.

(b) The number of members of the planning commission shall be
specified in the ordinance creating the commission which number,
however, shall not be less than five nor more than seven, and one of
whom may be a member of the Council. Not less than one nor more
than three members, as may be specified in the ordinance creating the
commission shall be administrative officials of the Town appointed by
the Mayor or Council, provided, however, that the number of such
members, including the councilmanic member, if there be one, shall
be a minority of the total membership of the commission. The
remaining members shall be qualified voters of the Town appointed
yy the Mayor and shall serve without compensation. The terms ot
he ex-officio members shall correspond to their respective official
fenures. Provision shall be made in the ordinance creating such com-
nission for the terms of office of the appointed members, the length of
which terms, however, shall not be less than four years nor more than
six years, for the removal after public hearing of any appointed member
for inefficiency, neglect of duty or malfeasance in office and for filling
any vacancies.

(c) The planning commission shall elect its chairman from
amongst the appointed members and may create and fill such other
offices as it may determine. The term of the chairman shall be one
year with eligibility for re-election. The commission shall hold at
least one regular meeting in each month and shall adopt rules and
regulations for the transaction of business; shall keep a record of its
resolutions, findings and determinations, which record shall be a public
record. The commission shall have the power to promote public in-
terest in and an understanding of the plan and to that end may pub-
lish and distribute copies of the plan of any report and may employ
such other means of publicity and education as it may determine.

(d) The planning commission may appoint such employees as it
may deem necessary for its work and contract with city planners,
engineers, architects and other consultants for such services as it may
require. The expenditures of the commission, however, exclusive of
gifts to the commission, shall be within the amounts duly appropriated
by the Council for the purpose.

(e) The planning commission may adopt the plan as a whole or
by single resolution or may, by successive resolutions, adopt successive
parts of the plan, said parts corresponding with the major geographical
sections or geographical and topographical divisions of the Town or
with the functional subdivisions of the subject matter of the plan and
may adopt any amendment, or extension thereof or additions thereto.
Before the adoption of the plan or any such part, amendment, exten-
sion or additions, the commission shall hold at least one public hearing
thereon, at least fifteen (15) days notice of the time and place of
which shall be given by one publication in a newspaper of general
circulation in the Town. ‘The adoption of the plan or of any such
part or amendment or extension or addition shall be by resolution of!
the commission, carried by the affirmative votes of not less than a
majority of the full membership of the commission and such resolution
shall refer expressly to the maps and descriptive and other matte
intended by the commission to form the whole or part of the plan
and the action taken shall be recorded on the map and plan, anc
descriptive matter by the identifying signature of the chairman and/o:
secretary of the commission. An attested copy of the plan or any
adopted part thereof shall be certified to the Council and to the clerl
of the court of Fairfax County.

(f) The planning commission in preparing a zoning plan shal
perform all the functions of a zoning commission and the Council 1:
hereby empowered to adopt and enforce zoning ordinances for th
promotion of health, safety, morals, comfort, prosperity and genera
welfare of the public and may, by ordinance, divide the area of th
Town into one or more districts of such shape and area as may be
deemed best suited to carry out the purposes of this section, and ir
such district or districts may establish, set back building lines, regulate
and restrict the location, erection, construction, reconstruction, altera:
tion, repair or use of buildings and other structures, their height, arez
and bulk, and percentage of lot to be occupied by buildings or othe
structures, the size of the yards, courts or open spaces, and the trade
industry, residence and other specific uses of the premises in suck
district or districts.

(g) Such zoning regulations or ordinances shall be made in ac-
cordance with a comprehensive plan, and designed to lessen congestion
in the streets, to secure safety from fire, panic and other dangers, tc
promote health and the general welfare; to provide adequate light
and air; to prevent the over-crowding of land; to avoid undue con-
centration of population; to facilitate the adequate provision of
transportation, water, sewerage, schools, parks and other public re-
quirements. Such regulation shall be made with reasonable con-
sideration, among other things, to the character of the district and its
peculiar suitability for particular uses, and with a view to conserving
the value of buildings and encouraging the most appropriate use of
land throughout the Town. However, no such regulation or ordinance
shall become effective until after a public hearing in relation thereto,
at which parties in interest and citizens shall have an opportunity to
be heard. At least fifteen (15) days’ notice of the time and place of
such hearing shall be published in a paper of general circulation in
the Town.

(h) Such regulations or ordinances may from time to time be
amended, supplemented, changed, modified or repealed. In case,
however, of a protest against such change signed by the owners of
twenty per centum or more either of the area of the lots included in
such proposed change or of those immediately adjacent in the rear
thereof, or of those directly opposite thereto, such amendment shall
not become effective except by favorable vote of three-fourths of all
members elected to the Council.

(i) No regulation or zoning ordinance shall be adopted by the
council until the planning commission has submitted its final report
and recommendation.

(j) To require all plats and re-plats subdividing any land within
he Town or within one mile of the corporate limits thereof, into
streets, roads, alleys, lots or tracts to be submitted to the Council for
ipproval before such plats or re-plats are filed for record or recorded in
he office of the clerk of the circuit court of Fairfax County, but in no
vent shall the Town be held responsible for the upkeep of any streets,
lleys, roads or lanes or be held liable for any accidents which may
ccur upon such streets, alleys, roads or lanes, until after the dedica-
ion thereof shall have been accepted by ordinance of the Council of
aid Town,
(k) The Council may, within thirty days, after the adoption of
any zoning ordinance appoint a Board of Zoning Appeals, consisting
of five members, none of whom shall hold any other positions with
the Town and each of whom shall be a qualified voter of said Town.

(1) The term of office, organization and procedure of the Board
of Zoning Appeals shall be same as provided for the planning commis-
sion in subsections (b) and (c) of this section.

Section 3-b. The Council, Mayor and any officer, board or com-
mission authorized by them or either of them, shall have the power
to make investigations within their respective powers and duties,
and for the purpose to subpoena witnesses, administer oaths, and
compel the production of books and papers, and any person refusing
or failing to attend, or to testify or to produce such books and papers,
may by summons issued by such board or officer be summoned before
the Mayor of said Town, and upon his failure to give satisfactory
explanation of such failure or refusal may be fined by the Mayor for
contempt, and any person giving false testimony may be proceeded
against for perjury.

Section 3-c. (a) No action shall be maintained against the Town
for damages for injury to any person or property alleged to have been
sustained by reason of the negligence of the Town or any officer, agent
or employee thereof, unless a written statement, verified by oath of
the claimant, his agent or attorney, or the personal representative of
any decedent whose death is the result of the alleged negligence of
the Town, its officers, agents or employees, of the nature of the claim
and the time and place at which the injury is alleged to have occurred
or to have been received, shall have been filed with the Corporation
Counsel within sixty days after such cause of action shall have ac-
crued, except where the claimant is an infant or non compos mentis,
or the injured party dies within such sixty days, such statement may
be filed within one hundred and twenty days, and no officer, agents,
or employees of the Town shall have authority to waive such condi-
tions precedent or any of them.

(b) In any action against the Town to recover damages against
it for any negligence in the construction or maintenance of its streets,
alleys, lanes, parks, public places, sewers, disposal plants or water
mains, where any corporation or person is liable with the Town for
such negligence, every such person or corporation shall be joined as
defendant with the Town in any action brought to recover damages
for such negligence, and where the judgment or verdict is against the
Town as well as the other defendant or defendants, it shall be ascer-
tained by the court or jury which of defendants is primarily liable for
the damages assessed.

(c) If it be ascertained by the judgment of the court that some
person or corporation other than the Town is primarily liable, there
shall be a stay of execution against the Town until execution against
such person or corporation shall have been returned without realizing
the full amount of the judgment.

(d) If the Town, where not primarily liable, shall pay the said
judgment, in whole or in part, the plaintiff shall, to the extent that
said judgment is paid by the Town, assign the said judgment to the
Town without recourse on the plaintiff, and the Town shall be en-
titled to have execution issued for its benefit against the other de-
fendant or defendants who have been ascertained to be primarily
liable, or may institute any suit in equity to enforce said judgment, or
an action at law, or scire facias to revive or enforce said judgment.
(e) No order shall be made and no injunction shall be awarded
by any court or judge, to stay the proceedings of the Town in the
prosecution of its works, unless it be manifest that it, its officers,
agents or employees are transcending the authority given it or them
by this act, and that the interposition of the court is necessary to
prevent injury that cannot be adequately compensated in damages.