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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 September 2010.

As many of our readers know, the new Crystal City Sector Plan was considered last night (see here for our prior analysis of the proposed plan), but did you know it contained a proposal for a Tax Increment Financing ("TIF") fund  to include the Crystal City, Potomac Yard and Pentagon City areas at the same time?

September 28, 2010
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Topics Green

Arby's RichmondOn the return trip from visiting my brother and his family in North Carolina this weekend, we randomly stopped at an Arby's off I-95.  We were greeted by not just surprisingly good food in a suprisingly clean spot, but also a surprise thought exercise in food, sustainability and the potential for market change.

Per a request made by Delegate Christopher Peace (R - 97th District, who represents parts of Hanover, Caroline, King William, King and Queen, Henrico, Spotsylvania Counties and all of New Kent County), Attorney General Cuccinelli has clarified the position of the AG's office about the newly enacted Section 15.2-2303.1:1 of the Code of Virginia, which prohibits localities from collecting conditional zoning cash proffers.  As many of our readers recall, the General Assembly passed Section 15.2-2303.1:1 this past legislative session which, through July 1, 2014, prohibits localities from requiring payment of cash proffers until after completion of final inspections and prior to issuance of a certificate of occupancy for residential development in order to alleviate the financial hardship currently being experienced by the residential building and development community.  A number of localities in Virginia have taken the position that this statute does not apply to proffers made prior to the enactment of 15.2-2303.1:1, prompting the opinion requested by Delegate Peace.

September 23, 2010
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The U.S. Department of Justice (DOJ) recently published new regulations in the Federal Register on September 15, with the final rules taking effect March 15, 2011. Compliance with the 2010 Standards for Accessible Design is permitted as of September 15, 2010, but not required until March 15, 2012.   These new regulations relate to the implementation of Title II and Title III of the Americans With Disabilities Act and apply to public entities as well as a number of types of facilities owned/operated by private entities relating to public accommodations in private facilities. DOJ is issuing these rules in order to adopt "enforceable" accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board.

September 22, 2010
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Topics Green
Tags Green

We are hosting a seminar on the Benefits, Costs and Risks of Green Building.  The class is run through the AIA Northern Virginia as a 3-hour workshop on sustainable projects, examining timely topics including cost/benefit issues, public and private regulations and markets, and potential legal risks. This workshop offers 3 HSW/SD LUs for those interested in AIA continuing education credits.  There is a $30 registration fee (includes Continental breakfast) and pre-paid reservations are required.

The Virginia Supreme Court has released its opinion in the first of the pending Case Watch. Commonwealth of Virginia v. AMEC Civil, LLC, and the companion case of AMEC Civil, LLC v. Commonwealth of Virginia had twenty-two assignments of error on AMEC’s part, along with two assignments of error and seven assignments of cross-error on VDOT’s part.

In an attempt to get out of having to comply with a proffer, a developer has tried, and failed, to claim that a proffer could not be amended at a public hearing without having to resubmit the amended in proffer in writing and to conduct a subsequent public hearing.  The facts in Arogas, Inc., Et Al. v. Frederick County Board of Zoning Appeals, Et Al., were pretty straightforward.  Prior to a public hearing for a rezoning, a property owner submitted a written proffer to the Frederick County Board of Supervisors, which the property owners thereafter orally agreed to modify at the public hearing, and then about a week after the hearing the property owners signed a written amended proffer pursuant to their oral agreement at the hearing.  The amended proffer limited the underlying by-right permitted uses of the property.

September 17, 2010
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Topics Green

We are joined today with a guest post from our colleague, Phil Keating, with a timely report on Arlington County’s newly released Energy Plan issued by the Arlington County Community Energy and Sustainability Task Force. In addition to being Chair of the Arlington Chamber of Commerce, Phil is a member of the Task Force and has provided us with some analysis and suggestions:

The Task Force released its draft Energy Plan on September 17, 2010. The plan, truly developed by a group of consultants led by Peter Garforth with input from Task Force members, County Government staff, and other interested parties, is scheduled for a public hearing Thursday, October 21 from 6:00 p.m. to 9:00 p.m. at Wakefield House School in Arlington. Additional public presentations are scheduled and e-mail comments are being accepted. The schedule for the Task Force contemplates that the Arlington County Board will consider the Energy Plan and move to adopt it in the February to April 2011 time frame.

As promised, just wanted to circle back with the results of yesterday's Commonwealth Transportation Board hearing.  It is official, the Commonwealth Transportation Board passed the actions necessary to transfer Columbia Pike to Arlington County, with assurances from Arlington County staff that they would preserve the functionality of Columbia Pike and that there were plans to do so in place.  This action is a major step for the Columbia Pike Revitalization Initiative, giving Arlington County the control it has wanted over streetscape, pedestrian, transportation, street and intersection alignment, and its street car planning.

All this comes despite the ongoing lawsuit between Arlington County, VDOT and others.

September 16, 2010
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Topics Litigation

The Supreme Court of Virginia has issued its long awaited notice decision in the Commonwealth v. AMEC Civil LLC case.  The result is a pretty painful smack-down of the substantial bulk of the contractor's claims based on lack of statutory notice.  Not surprisingly, the court strictly construed statutory notice requirements for claims against the Virginia Department of Transportation under the umbrella of its historic strict statutory construction rules.  Notice was deemed a condition precedent.  Actual notice, which had originally satisfied the trial court due to lack of prejudice to VDOT, failed to comply with the statute's requirement for written notice.

What are the take-aways?

  1. If you think you may be entitled to additional compensation, ask for it in writing and reserve your claim rights;
  2. Scrutinize your contracts closely for all claims and notice requirements;
  3. Scrutinize any applicable statutory notice provisions closely as well;
  4. Do not trust the other side playing along and being fair and taking care of you, that is the path to potential ruin;
  5. If you have any inkling of of a dispute, make sure you formalize all claims and demands and notices in writing;
  6. Do not expect project meeting minutes and e-mails to suffice to establish notice.

The Commonwealth Transportation Board is scheduled to finalize the deal and take the necessary actions to convey Columbia Pike to Arlington County tomorrow, being the culmination of many years of urban and transportation planning by Arlington County, the Columbia Pike community, and the Columbia Pike Revitalization Organization.  This is in response to the Resolution passed by the Arlington County Board back in July of 2009 to acquire Columbia Pike from the Commonwealth in order to clear the way for construction of the planned street car system along Columbia Pike in Arlington County and to help realize the goals and visions of the Columbia Pike Revitalization Initiative.

September 14, 2010
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Topics Litigation

While it may not seem like it from talking to many lawyers, a very important part of the job of the lawyer is effective communication.  Occasionally, I run across materials that are great examples of great communication, or even more often examples of how not to communicate.  (Happily, these are often the most entertaining things to share as well!)

September 10, 2010
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Our blog went live on September 10, 2010, so today marks our first anniversary.  We have enjoyed the conversations and appreciated being forced to keep up with the avalanche of technical and legal information that flows past trying to find good topics.

September 8, 2010
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Topics Litigation

Virginia follows the “American Rule,” which basically stands for the proposition that each litigant is on the hook for its own counsel fees. However, as we have discussed numerous times, parties are free to enter into contracts that deviate from the norm. Fortunately for Thor, Inc., the contract it had with Shen Valley Masonry contained just such an attorneys' fees provision allowing it to escape  the American Rule. In the recent case of Shen Valley Masonry Inc. v. Thor, Inc., in the Circuit Court for the City of Roanoke, Judge Apgar had a chance to review this attorneys' fees provision in detail.

September 1, 2010
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For those of you out there who are following whether commercial real estate can be taxed at a different rate than residential property, FFW Enterprises v. Fairfax County, et al. has been slated for the Supreme Court's September arguments docket.  Like most other states, in the Commonwealth of Virginia the Constitution contains a "Uniformity Clause" which was intended to prevent the General Assembly from allowing the taxation of different classifications of real property in an inequitable manner.  Specifically, Article X, Section 1 of the Constitution of Virginia provides:

"...All taxes shall be levied and collected under general laws and shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, except that the General Assembly may provide for differences in the rate of taxation to be imposed upon real estate by a city or town within all or parts of areas added to its territorial limits..."