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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 tagged Codes and Regulations.

The Virginia General Assembly passed hundreds of bills signed into law by Governor McAuliffe during the 2017 legislative session, and all of these bills went into effect on Saturday, July 1st. Many of these laws touch on real estate, local government, and economic development-related issues, including a law extending the expiration date of certain land use approvals - site plans and special exceptions, for example - a law authorizing short term lodging (AirBNB), a law restructuring the Economic Development Authority, and a law establishing the Metro Safety Commission. Notably, numerous attempts to revise the 2016 proffer law all failed, although the General Assembly is likely to reignite the proffer fight again in the coming sessions. For more information on other high profile bills that went into effect on July 1st, click here.

The question of exactly what triggers a requirement for a contractor’s license comes up frequently in my practice.  Like many other things in the law, the answer is not particularly clear and can be somewhat circular.  Still, there are some practical signposts that provide definition and allow for some risk analysis.

Chesapeake Bay BridgeLast week EPA issued its "pollution diet" for the Chesapeake Bay. The total maximum daily load (TDML) of various materials is established by EPA in the diet and includes a 25% reduction in nitrogen, a 24% reduction in phosphorous, and a 20% reduction in sediment according to Engineering News Record (subscription only). The plan also includes annual total watershed limits.

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.

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.

We have finally reached the last of the five cases from December’s Case Watch with the Virginia Supreme Court’s recent decision in Advanced Towing Company, LLC, et al. v. Fairfax County Board of Supervisors, Record No. 091180.

Virginia Code Section 46.2-1232 (A) allows localities to regulate towing of trespassing vehicles by ordinance, but is silent on the mode or manner of how to carry out that authority. The last sentence of Section 46.2-1232 provides that if a vehicle is towed from one locality to another, the local ordinance of the locality from which the vehicle was towed governs, if that locality has an ordinance.

As we originally posted on April 30, EPA has issued notice that its recent lead paint regulations may be changing.  Specifically, EPA published a proposed rule on May 6 providing for clarifications and changes in clearance testing.  For commercial contractors thinking they were spared from worrying about lead paint regulation, EPA also issued an advance notice of proposed rule making on May 6 discussing extension of lead paint regulations into commercial and public buildings.

Those interested in commenting on the regulations should step up and do so rapidly.  In the case of the extension into commercial buildings, there is no specific rule proposed at this point so this process will likely take some time.  Nevertheless, the best chance to participate in shaping this discussion is to engage from the start.  Our friend Sean Lintow at SLS Construction continues to provide detailed commentary and has developed an extensive set of comments that may be of interest to contractors following the discussion,

Bug eyedThe EPA's new lead regulations officially went into effect on April 22.  As expected, EPA has promptly issued notice that it intends to change the regulations to remove the "opt out" provision.  The opt-out created an exemption from the regulations where a home owner certified that no child under 6 or pregnant woman occupied the home and that the home was not a child-occupied facility.  The new change will take effect 60 days after publication in the Federal Register.

The removal of the opt out provision was expected and followed a litigation challenge from various advocacy groups.  That litigation resulted in a consent settlement with EPA whereby EPA committed to propose several changes including removal of the opt-out provision.

Back on April 14th I blogged about the creation and anticipated operation of the Virginia Defective Drywall Correction and Restoration Assistance Fund (the "DDCRAF") via two new provisions to the Code of Virginia patroned by Delegate Oder this session.  If you read that posting you'll recall that the purpose of the DDCRAF is to create a perpetual, non-reverting fund to facilitate the remediation of property impacted by the use of "Defective Drywall" in residential construction, and I promised to find out whether funding was lined up for the DDCRAF yet.  Delegate Oder's office has been very responsive and helpful in explaining how they envision funding to come through for the DDCRAF.