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This blog focuses on real estate, land use and construction-related topics affecting Virginia and the Washington, D.C. metro area. With topics ranging from contract drafting and negotiation to local and regional land use project updates, the attorneys at Bean, Kinney & Korman provide timely insight and commentary on the issues affecting owners, builders, developers, contractors, subcontractors and other players in the industry. If you are interested in having us cover a specific topic, please let us know.

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Posts from December 2009.

With the General Assembly set to convene and prefiling ending on January 13th, I thought it would be worth while to take a look at the legislative proposals submitted thus far to see if anything  jumped out at me this year from the land use side of things.  Suprisingly, this session looks kind of light so far (everyone must be focusing on the budget bills...).

From the local government side, it looks like HB 33 proposes requiring additional disclosures by local governments when seeking bond approvals from voters.  It appears the idea is that public notices would have to include not only the amount of debt to be assumed, but now also the anticipated number of years to amortize and the total debt service payable on the principal amount of the bonds proposed to be issued.  More information for voters - how can you vote against this one?

December 24, 2009
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Crowd of Lawyers - Pakistan Rally NYWe are a bit over three months into our blog and also approaching the end of the year. This always makes me take stock and wax a bit philosophical.  Questions of why I do what I do, why I enjoy doing it, and how that compares or contrasts to the rest of the legal profession leads to the question of how clients should pick their legal counsel out of the crowd of lawyers.

The starting place for most would be that clients should look for lawyers with substantive expertise in the area of their matter.  This is easy enough to say, but it feels pretty misleading to me.  In my mind, being a great construction litigation attorney means first being a great litigator and a great trial attorney (we will leave the litigator versus trial attorney discussion for another time).  It is difficult for clients to judge litigation trial skills though.  Unless a client has tried a case with me or at least sat through a deposition with me, how would they know I can shred an opposing expert?

In 2004, 515 Granby, LLC proposed a $180.5 million condo development. With 34 stories and 327 units, Granby Towers would be the tallest building in Norfolk and would revitalize the northern part of the city. The following year, the federal government threatened to condemn the property, causing just enough of a delay for the ebbing economic tide to overtake the Granby Tower project and thwart 515 Granby’s ability to secure financing.

Fairfax County Seal At the Government CenterA recent Fairfax County Circuit Court case highlights how fragile confessions of judgments can be in Virginia.  The case, Superior Paving v. Bud & The Boyz Construction, resulted in a confessed judgment being set aside by the trial court.

 

Universal Design

We are very pleased to have our inaugural guest post by John Salmen, AIA.  A licensed architect, John is President of Universal Designers and Consultants, Inc.. John has specialized in barrier free and universal design for 30 years and is a recognized expert on US accessibility regulations and a leader in the field of Universal Design.   We can think of no one better to start the accessibility discussion on our blog, and we also believe John makes an interesting, persuasive and important connection between economic, environmental and social sustainability that merits significant attention.

Inevitably, this question must be raised. As public awareness of green design swells to a tidal wave, many Students of Universal Design (UD) think we see the next wave approaching – and its name is Universal Design. But how do these waves relate to each other? Are they random swells? Or caused by undersea movement of the earth’s crust?

Step 1:  Create Redevelopment and Housing Authority (the "Authority")

Step 2:  Authority  identifies areas of city that it wants to designate as a "blight"

Step 3:  Authority creates a Master Redevelopment Plan for areas of city it has determined are blighted

Step 4:  Authority uses public funds to condemn all the privately owned land in redevelopment area where private property owners are unwilling to sell to the Authority at the Authority's price

Step 5:  Authority sells some of the land obtained from private citizens to private entrepreneurs for sums it deems appropriate, holds surplus land in inventory for no specifically identified public purpose

Virginia law continues to apply a strict division between contract claims and tort claims.  This rule holds true in the context of professional malpractice claims as well.  Many states apply legal rules where professional malpractice claims arise from negligence or both negligence and contract.  This is not the case - from 1976 forward, the Supreme Court of Virginia stated in Oleyar v. Kerr that a claim for professional malpractice, while sounding in tort, was actually a claim for breach of contract with a contract statute of limitations.

As we watch Chinese drywall litigation erupt nationally, we see the rapid fallout: insurance companies denying coverage; suppliers going bankrupt; homeowners filing suit against all the parties in the food chain.  We have seen this story before.  In Virginia, the applicable could translate to some very harsh results even if owner plaintiffs can prove the drywall was defective and caused damages.

Why is that?  We have learned that Virginia requires a contract to recover "economic losses".  We have also discussed that this requirement extends to products liability cases for recovery of "consequential damages" despite a statute in the Uniform Commercial Code that appears to eliminate lack of privity as a defense.  We now need to see how these definitions play out in actual context.

No state has a longer shoreline than Florida – over 2,000 miles of shoreline, with 825 miles of beaches.  These beaches define Florida's top industry of tourism and are in a constant state of erosion.  Understandably, Florida has embraced the “public trust doctrine,” which dictates that tidal lands are held in trust for the people of Florida. The boundary between state-owned tidal lands and upland properties has traditionally been the “mean high water line” (“MHWL”). The MHWL may move inland due to erosion or seaward when land gradually forms (through accretion). However, the boundary will not shift due to a sudden change in the shoreline (through avulsion).

The Island of Misfit ToysWe have seen waves of claimed problems with construction products over the last several decades: PVC plumbing fixtures and materials; fire retardant treated (FRT) plywood; exterior insulation and finish systems (EIFS).  We are on the front edge of another eruption with Chinese drywall, and indeed we have heard the first rumblings that the drywall problems may extended to materials manufactured in the United States.  It seems like the construction industry has become the Land of Misfit Toys from my favorite old school TV special, Rudolph the Red-Nosed Reindeer.  

 

The Supreme Court of Virginia recently accepted a Petition for Appeal by forty citizens of Gloucester County who were hit with sanctions for circulating a petition for signatures and filing the petition with the Circuit Court for Gloucester County to have some members of the Board of Supervisors removed by the Circuit Court.  These citizens circulated the petition per § 24.2-233 of the Code of Virginia, gaining over six thousand signatures, after a grand jury indictment of certain members of the Board of Supervisors.  After appointment of a special prosecutor, the trial court nonsuited the petition proceedings, ordered Gloucester County to pay for the legal fees incurred by the Board of Supervisors, and then imposed two thousand dollar sanctions on each of the forty citizens who circulated the petition. 

December 3, 2009
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Topics Green

We are pleased to announce that our firm has stepped up and adopted a formal sustainability policy.  The policy adopts specific measures to reduce material and energy usage, increase reuse and recycling of materials, and to include sustainability as a core value in vendor purchases.  We are excited to commit to doing our part to improve sustainability of our own business and legal practice along with other forward thinking businesses.

Our firm has a rich tradition of including environmental sustainability into our decision-making process.  For example, we are located in a LEED Silver building, our space was built out with sustainable principles in design and construction, and we have long had a policy of paying financial incentives to staff using mass transit rather than driving.  In 2009, we invested a significant intensive effort into sustainable design and construction by having eight of our current attorneys and a paralegal all train and pass examinations to become LEED accredited professionals.  This effort included all three of the editors of our blog.

Beat Up Chuck TaylorsLast week we discussed the first Chinese drywall case going to trial in January involves Virginia plaintiffs.  We have two interesting reports that may constitute both shoes dropping at once.

First, Engineering News Record reported on November 25, 2009 that a federal study, "found 'a strong association' between imported wallboard made in China and metal corrosion in U.S. homes in which the drywall has been installed." (subscription required).  These tests results appear consistent with prior testing finding the presence of corrosive chemicals in the Chinese drywall.  Other experts claim that the chemical levels are too low to cause injuries.  The Proskauer Rose firm has analyzed the federal testing results released by the U.S. Consumer Products Safety Commission (USCPSC) and found that, "Indoor testing ... detected little or no indications of various sulfur compounds[.]"(free sign-up required)