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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 August 2010.

blackjackArlington County has moved to sue yet another individual transportation official in its pending HOT lanes project in federal court in the District of Columbia.  The pending case, a fight over the HOT/HOV lanes in I-395, argues that VDOT and the US Department of Transportation failed to undertake appropriate traffic, environmental, and other studies in approving the northern section of the project.

August 25, 2010
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Topics Litigation

It’s hard to believe it’s already been over six months since we discussed this case in the blog post Never Underestimate the Value of Facetime, where Judge Williams of the U.S. District Court for the District of Virginia (Richmond Division) found a “distinct and ripe controversy” of whether PHH owed Kersey a face-to-face interview before foreclosing on her home.

broken silt fenceThe US EPA was forced to withdraw a portion of its proposed storm water management regulations in the context of a pending court challenge by the National Association of Homebuilders (NAHB) and other parties.  In the pending appeal to the United States Court of Appeals for the Seventh Circuit, the EPA filed an unopposed motion to vacate part of its final rule regarding "Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category".

Chesapeake Bay WatershedThe Environmental Protection Agency is in the process of developing proposed national rulemaking to strengthen its stormwater program. The proposed rulemaking, which was previously announced in the Federal Register on Dec. 28, 2009, could dramatically alter the playing field for development of all types.

This is particularly true in the D.C. region given its placement in the Chesapeake Bay watershed. The EPA has recently proposed sediment limits for the Chesapeake Bay in addition to previously issued limits for nitrogen and phosphorous.

This year's proposed Constitutional Amendments are now up for review prior to being voted on during the November 2, 2010 General Election this fall.  There are three proposed amendments on the table:

Question markMany plaintiffs attempt to allege fraud claims in construction cases.  These attempts generally fail in Virginia because a claimant must allege a basis for a fraud claim that arises outside the context of a contractual duty.  This theory was clearly established in the Richmond v. McDevitt Street Bovis case in 1998, but we still see it regularly playing out in Virginia state and federal courts. 

Last month, we looked at Station #2, where the Virginia Supreme Court refused to turn a breach of contract allegations into a fraud claim. Contrast that with Nathan, et al. v. Long & Foster, Real Estate, Inc., et al., in which the Circuit Court for the City of Roanoke has allowed a fraud in the inducement claim to go forward.

Geeta Nathan and Santam Singh were looking to buy a home in Roanoke, and worked with Barbara Michelsen, a Long & Foster real estate agent. They signed a Purchase Agreement to buy a home for $260,000, and the agreement listed Michelsen as the selling agent.

We are very enthused to announce that I have been asked to regularly post as a guest blogger with the Washington Business Journal.  WBJ is one of our very favorite sources of information, news and commentary regarding business, law and real estate.  The guest blog spots will be weekly and part of their Biz Beat page alongside posts by WBJ reporters.  Our initial post is an expansion of our previous discussions regarding how little stimulus funding for transportation has actually been spent.

We have a very high regard for WBJ and follow numerous WBJ reporters on twitter and publisher Alex Orfinger.  We regard being invited to serve in this capacity by the go-to information source as quite an honor.  For those not familiar or not as focused on the WBJ's offerings, we strongly recommend not only their print subscription, but signing up for their daily e-mail news alerts which contain critical updates for the business community.  We will keep everyone posted on further developments on this front here and invite you to check out the Biz Beat blog!

hourglass on sandduneStatute of limitations defenses are a hotly litigated and important aspect of construction law.  This is particularly true in Virginia where the clock often starts ticking based on a literal bright line trigger.  This means the time for filing suit can often start running in Virginia before anyone even knows there is a case.  In construction litigation, where problems can stem from latent defects which do not manifest for an extended period, these rules can be pivotal in limiting risk.

August 4, 2010
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With all the buzz about Congressional ethics investigations and the kinks being worked out of the reformed Virginia General Assembly and Senate ethics rules, I thought it might be an appropriate time to reflect on the rules that govern our local officials here in Virginia.  On this side of the river, conflicts of interests, prohibited conduct and disclosure requirements for local officials are set forth in the State and Local Government Conflict of Interests Act.