Virginia Real Estate, Land Use & Construction Law : Virginia Construction Lawyers & Attorneys : Bean Kinney & Korman Law Firm : VA Real Estate, Land Use & Zoning

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?

Also, HB 51 proposes to allow localities' governing bodies the option to prepare their own amendments to comprehensive plans rather than having to request the local planning commission to do so.  HJ 11 proposes the necessary constitutional amendment to allow localities to establish their own income or financial worth limitations for granting local property tax relief to seniors (65 year-olds) and permanently disabled individuals.

On the transportation side, it looks like this will be a season of transportation reform.  The big one, HJ 5, according to LIS, proposes an amendment to the Constitution of Virginia to require the General Assembly to maintain permanent and separate Transportation Funds, that revenues dedicated to Transportation Funds actually have to be deposited into the Transportation Funds, and limits the use of Transportation Funds to only transportation related purposes, unless the General Assembly secures a 2/3 plus one majority to borrow from the Transportation Funds.  Borrowed funds would have to be repayed, with interest, within a specified period of time.

Transportation programs are also proposed to now be subject to performance audits by the Auditor of Public Accounts per HB 42.  These audits would include cost saving assessments, and organizational structure/efficiency and effectiveness analysis of transportation agencies by private management consulting firms.

Also, HB 25 proposes to amend the requirements of the Statewide Transportation Plan, and for evaluation of selection of transportation improvement projects, to include as an objective identifying quantifiable measures and achievable goals relating to reduce greenhouse gas emissions.  HB 55 puts forward limiting assessments on localities for VRE service to no more than a locality collects through its motor vehicle fuel sales tax while HB 19 attempts to allow the Potomac-Rappahannock Transportation Commission to charge higher fares to VRE passengers from localities who are not that are not embraced by the Potomac-Rappahannock Transportation District.

And finally, from the conflicts of interest camp, members of the General Assembly, per SB 4, would have to disclose any money paid to him/her, or immediate family, in excess of $10,000 by a state or local government or advisory agency.  Former Section 30-111 explicitly allowed members and their family members to exclude what they were paid by various governmental agencies/commissions on their Statement of Economic Interest conflict of interest disclosure form.  I wonder why?

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We 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?

What clients can generally judge is the construction lawyer's interest in the client's industry, ability to speak the client's business lingo and process industry information rapidly.  These skills naturally help to efficiently handle a case and thus can save the client money.  They can, but not have have to, translate into being effective in a deposition, mediation or courtroom.  There are definitely some areas where not knowing the legal framework before the case can be fatal, mechanic's liens for instance; however, in most arenas, a great trial lawyer can pick up the framework through hard work and education from the client and experts.  In the end, it helps quite a bit for clients to turn to trusted business contacts for referrals that may be able to help pierce through the fog of gauging expertise in the law.

What may ultimately be a more important gauge of the effectiveness of a lawyer is to look for demonstrated passion in the lawyer and public command of their practice area.  The sad reality is that too many lawyers are not jazzed up to practice law and are not really into their jobs.  Especially in the marathon, grinding, and grueling nature of construction litigation, you better be enthused and intense.  Looking for publications, speaking engagements, bar association and committee involvement, and active participation in industry related associations and efforts can be a great indicator of both substantive expertise and the lawyer's passion and interest in a particular topic area.

This question of passion and enthusiasm rumbles regularly in the back of my head but particularly since I read a really interesting post a few weeks back by my good friend Chris Hill at Construction Law Musings on "Why Construction Law?".  Chris clearly likes the people and industry he works with and that passion conveys. 

Soon after that post, Jetson Green (a fantastic blog with green information to follow daily) had a post regarding the Aqua Tower in Chicago: a stunning and unique elevation and planned for LEED certification that reignited the passion question for me.  I see the Aqua Tower and I am stunned.  The coordination of talents, energy and time it takes to plan, finance, design, and construct the built environment represents a continual series of remarkable achievements.  What a great job to work with folks doing these great things.  Call me a glutton for punishment, and my wife often does, but give me a show about Roman aqueduct design and construction or survey techniques for their roads and I am flat out loving life.

A few years ago I wrote an article on this topic,  "How to Pick a Lawyer" for McGraw-Hill's Mid-Atlantic Construction Magazine.  While the article makes some decent points, I realize that sanitizing my thoughts for magazine publication, I left the critical need for connective passion on the cutting room floor.  The other thing I de-emphasized was the overarching importance of the bond and connection between the lawyer and the client.  As my practice continues to develop, I realize more and more that working with people that you connect with intuitively is so much less effort, so much more rewarding, so much easier, and so much more fun than business relationships that feel like a constant struggle.  This is most definitely a two way street.  Clients should hire lawyers that they like, lawyers they like to spend time with, and lawyers that are interested in them and their problems.  This is especially true in cases that may have a long half-life where you may spend a lot of time with your lawyer, such as construction litigation.

On that note, we wish everyone a very happy and safe holiday season.  Several of us are off next week, so our posts may be a little more sporadic and unscheduled for the next couple weeks until the New Year.  We will still be kicking around some on twitter and the blog and continue to invite you to participate, debate, discuss and engage in the conversation even if we are a little slower replying than usual!

Image of NY Lawyers Rallying in Pakistani Lawyers from Eric Turkewitz

Image of Aqua Tower by Ryan Kirby

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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.

Fortunately for 515 Granby, the prime contract with Turner Construction Company had the following language:

This Agreement and any liability and obligations of the Owner…shall be subject to and expressly conditioned upon the closing by the Owner, and the initial funding by its lender, of the construction loan… and Owner shall have no obligation or liability to Construction Manager for any costs for the Construction Phase under this Agreement unless such construction loan closing is completed.

Turner and its subcontractors, who were owed over $13 million for construction on the project, challenged this language in a two-day evidentiary hearing in the Circuit Court for the City of Norfolk. In a letter opinion issued by Judge Martin, Judge Martin rejected this challenge, finding that 515 Granby “made great efforts to secure financing for the project,” but was unable to do so due to the current conditions of the credit market. Judge Martin concluded that 515 Granby would have had to pay Turner only if and when it had received initial funding of the construction loan.  For an in-depth look at the court's reasoning, and what you can do if you face such a contractual provision, go to Yes, Virginia, Contract Terms Do Matter:  Financing Term Offers Owner an Escape Hatch, by my colleague, Tim Hughes, guest blogging on Construction Law Musings. 

Fortunately for Turner, its subcontracts contained the following language:

The obligation of Turner to make a payment under this Agreement, whether a progress or final payment, or for extras or change orders or delays to the Work, is subject to the express condition precedent of payment therefor by the Owner.

One of the subcontractors, Suburban Grading & Utilities, claimed this language was unenforceable. In a second letter opinion, Judge Martin upheld this provision as well, noting that the Supreme Court of Virginia finds “pay if paid” clauses enforceable “where the language of the contract in question is clear on its face.” This language was an unambiguous “pay if paid” clause that Judge Martin had no choice but to uphold, leaving Suburban to eat the costs of $575,928 for labor and materials and another $245,662 for dewatering.  For a great and very timely discussion of this opinion and advice about "pay if paid" clauses, I urge you to read Chris Hill's Construction Law Musings post, Pay if Paid, Pay Attention Subs.

Don’t go away thinking there will be no winners in this debacle! The federal government has since conveniently renewed its desire to condemn the property in order to expand the federal courthouse next door.  It offered a paltry $6.1 million to seize the Granby Tower property, an offer that no one is jumping at yet.  If you’re interested in reading more on this very likely end to the Granby Towers saga, take a look at Harry Minium and Tim McGlone’s recent article in The Virginian-Pilot.  
 

Image by:  Hyunsoo Leo Kim/The Virginian-Pilot 

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A 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.

Virginia law provides at Code of Virginia Section 8.01-433.1 that the note, bond or other evidence of a debt with a confession of judgment provision contain a notice provision stating:

IMPORTANT NOTICE

THIS INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT ANY FURTHER NOTICE.

In Superior Paving, the plaintiff included the statutory notice language in the original credit agreement related to asphalt purchases.  The defendant later requested a proposal from plaintiff  for paving the entrance of an industrial building.  Defendant accepted the proposal.  According to the court's opinion, neither the proposal nor the later resulting invoices contained the statutory notice language.  The opinion is silent on whether the proposal, acceptance, and invoices expressly incorporated the terms of the credit application.

The court initially entered judgment in favor of plaintiff in March.  On October 5, the court set the judgment aside ruling that "any and all notes or evidence of debt upon which a confessed judgment is to be based must unclude the 8.01-433.1 language". 

There are a couple take-aways from this case:

• 1: Assume that confessions of judgment provisions are fragile and easily undone
• 2: Even after judgment is entered, See No. 1
• 3: Include the confession of judgment notice into the actual contracts

Image by Haole Punk

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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?

Valerie Fletcher, Executive Director of the Institute for Human Centered Design, and Elaine Ostroff, Founding Director along with Eric Mikiten, AIA of the Bay Area COTE, believe that they are both connected to the earth shaking movement of Sustainability. Eric presented his overview in detail at the AIA 2009 convention. The trefoil logo, developed by the Department of Public Works of Queensland, Australia for its Smart House program (www.build.qld.gov.au/smart_housing/elements/index.asp), communicated how these three universal design leaders visualize the “ three–legged stool of sustainable design.” The graphic above illustrates how universal design is a basic element of sustainable design, as it relates to resource efficiency and economic empowerment under the umbrella of environmental, economic and social sustainability.
Environmental sustainability relates to the green movement and natural resource conservation and efficiency. Economic sustainability relates to concepts of life cycle costing, equity and fair trade value of products and services. Social sustainability relates to systems that support people by creating safe, secure and independent communities.

When compared to financial and natural resources, human ability is arguably the most precious resource of all. Human ability is enabled, supported and encouraged by a universally designed environment that gives everyone the opportunity to participate with a minimum of outside support. Just as we must conserve our natural resources, we must also conserve our human resources. It is a waste of human potential to create environments that demand dependence when a simple change in the design of the path, space or element could allow un-assisted use. Like “green design”, universal design must be an integral part of design programming and the imaginative design process. It cannot be left as an add-on in a minimal compliance mode.

The relationship between two people who are locked in the care giver/receiver dance, while frequently a loving and enriching experience, is difficult, uncomfortable, and too often destructive of human dignity. Independence is best and can be extended with universal design. The obvious example is aging in place, which is facilitated by universally designed homes and communities.

As we struggle to make the most of limited resources, the value of universal design as a tool to conserve human resources will become increasingly apparent, and its relationship to the broader goal of sustainability will become clear.

Editor's post script: In response to Chris Cheatham's fair question of what is "Universal Design", here is a definition from John Salmen's website:

Ron Mace, one of the original universal design movement leaders, defined universal design as: "Universal Design is the design of products and environments to be useable by all people, to the greatest extent possible, without the need for adaptation or specialized design.

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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

Apparently, this is the basic recipe Roanoke has been following in pursuit of a 110 acre redevelopment area created for Carilion's Riverside Center business and medical park complex.  This case is boiling again because the Roanoke Redevelopment and Housing Authority, whose board consists of 7 members appointed by the Roanoke City Council, condemned and took land from a private property owner that was not was not a blight and was not wanted by the private interests undertaking the redevelopment of the area; this private property was simply located within the area designated by the Roanoke Redevelopment and Housing Authority's Master Redevelopment Plan area.  In short, private property was taken by governmental authority for no specific public purpose, except that the City apparently did not like its use (a flooring business) and wanted to see it redeveloped at some time in the future, and then the land was to be held in inventory until the City decides how it intends to use it.

This raises some pretty interesting questions, doesn't it?  The government takes extensive areas of land from private property owners for no specific public purposes, entrepreneurs lobby the government to acquire the land for private use (or vice versa), and the government sells the land to private interests of their choice in order to achieve their vision of economic redevelopment of an area.  Without the authority to do this, localities will claim they have little ability to achieve badly needed, large-scale revitalization objectives in blighted areas.  With this authority, localities have the capability to take private property owned by one party and give it to another private party that the locality deems more favorable.

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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.

The nature of professional services does present a somewhat different posture for the economic loss rule than simple contracts cases.  A licensed professional is regulated by the Commonwealth and required to meet express professional services prior to licensure.  Many of the statutes and regulations that govern professionals expressly provide that in addition to duties assumed pursuant to contract, the law imposes duties towards the safety of the general public on the licensed professional.

Despite these license implications, Virginia again applies the economic loss rule in the context of professional services.  In Gerald M. Moore & Son, Inc. v. Drewry, the Supreme Court of Virginia considered a case where the plaintiff had a contract with an engineering corporation.  In its claim for economic losses, the plaintiff sued both the engineering corporation and the individual engineer for negligence.  The Supreme Court of Virginia ruled that in the absence of privity, a party could not be held liable for damages caused by negligent performance of a contract and that the same rule applies to professional engineers.

See our previous economic loss rule posts.

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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.

For home owners, the owner may want to recover the cost of repair to their home associated with defective products.  Virginia courts appear to agree that owners purchase real estate from builder/sellers rather than goods and have no UCC remedies against manufacturers and sellers of goods.  Under the Sensenbrenner case, the owner's remedy for economic repairs sounds in breach of contract against the builder.  If the builder goes bankrupt, the owner may be completely out of luck.  If there are express warranties on products that were assigned to the owner, they may have an express warranty claim; however, it is quite rare that all those t's are actually crossed.

On the builder side, if a builder is sued by the owners, they might try to drag in all the contractors, subcontractors, suppliers and manufacturers to pass through the claimed repairs of the owners.  Virginia again applies conservative principles, even on products cases, and forces people to stick to the chain of privity.  On products cases in particular, in Pulte v. Parex, the Supreme Court of Virginia stated that a builder's attempt to pass through a home owner's damages were consequential damages and, "fit into this definition like a hand in a glove."  The Court applied a conservative analysis in blocking the builder's claims for breach of express and implied warranties, indemnification, and contribution.  (Disclosure - I represented the manufacturer in this case, so if there is any apparent bias here, guilty as charged).

What are the takeaways from this series of cases?

• Construction products liability cases face significant legal hurdles under Virginia law
• The basic requirement for privity of contract appears intact on Virginia products cases relative to attempts to pass through repair cost claims
• You should assume that you need to stick to the chain of privity to recover unless you get lucky
• A bankruptcy can cripple your ability to get to the responsible party

Image by St Stev

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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).

Recognizing the need to protect Florida’s beaches, Florida’s legislature enacted the Beach and Shore Preservation Act (“BSPA”) in 1965. Since then, Florida has restored approximately 200 miles of beaches through sixty actively managed projects.

The BSPA was amended in 1970 to define the property boundary for restoration projects along critically eroded beaches as the “erosion control line” (“ECL”). By adopting a fixed boundary for restoration projects, the BSPA meant to avoid boundaries that were constantly shifting due to coastal dynamics. Under the BSPA, the state would pump sand into the restoration area primarily on the state side of the ECL, creating a buffer of “sacrificial sand” that would protect the beaches and upland property. The 1970 amendments preserved, and arguably supplemented, the rights of landowners whose properties under the Act extended to the ECL rather than the MHWL.

With the devastating hurricane and storm damage we have seen over the last decade, Florida realized that it could no longer focus solely on its southern beaches. Florida decided to spend a total of $15 million – $4 million of state money and the rest paid by the local community and the town of Destin – to restore approximately seven miles of beach in Walton County, a jurisdiction located in Florida’s panhandle. In keeping with the BSPA, the state set the property line at the wet sandy beach.  The project was designed to create a narrow strip of dry beach by piling new sand where water – and therefore sovereign state land – once was.  What the project also created was a legal quagmire between government officials and private landowners that has now made its way to the United States Supreme Court.

State and local officials argue that the restoration project provides the private landowners with storm damage and erosion protection without taking land or property rights from the landowners. The officials note that, consistent with the BSPA, the project preserves all upland owners’ rights of view, access and use of the waters. You can read more on these arguments in the state’s brief and the brief for Walton County and the City of Destin.

Private landowners instead see a “land grab” that robs them of their right to gain land by accretion and their right to have their property in continuous and direct contact with the water. They complain that the officials dumped sand in their backyard to create what is now considered a public beach. To read more on the landowner’s arguments, read Stop the Beach Renourishment, Inc.’s brief and reply brief.

The Florida Supreme Court’s lengthy opinion concluded that the beach restoration program reflected “the state’s constitutional duty to protect Florida’s beaches in a way that reasonably balances public and private interests.” The court found that landowners maintained their rights to access and view the water, but that Florida law provides no basis for the landowners to own the new narrow strip of dry sand as private property, and therefore no basis for the property owners to demand compensation.

The United States Supreme Court has previously addressed whether a legislative or executive decision can amount to a constitutional taking. But now this case – Stop The Beach Renourishment, Inc. v. Florida, Case No. 08-1151 – raises the question of whether a state court decision can amount to an unconstitutional taking of property.  Based on comments from the Justices during oral argument last week, the opinion will likely not be unanimous, as noted in NPR’s December 2, 2009 article, High Court Appears Divided on Beach-Property Case.  Complicating things is the fact that Justice Stevens, who owns a Florida beachfront apartment, was absent from the oral argument, making it possible that the Justices will not have the votes one way or the other to reach a majority opinion.

My guess is that the United States Supreme Court will find a way to avoid deciding the novel issue of whether the Florida Supreme Court's decision can be considered a taking, and will not disrupt the Florida Supreme Court's determination that the beach preservation project did not take any legally cognizable state property right from the land owners.  Any other thoughts or predictions out there?

Image by:  Melissa Nelson/AP
 

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We 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.  

Construction products liability cases present a very messy interaction between tort, contract, traditional economic loss principles, and the Uniform Commercial Code (UCC).  We have previously discussed Virginia's economic loss rule which basically provides that in order to recover economic losses, you need to have a contract with the party you are suing.  To understand the interplay, we need to get a little more technical than we usually do here on the blog. 

The UCC states at Section 8.2-318, "Lack of privity ... shall be no defense in any action brought against the manfuacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence [.]"  That should end the issue on products cases as the statute is clear, right?

Wrong.  The Supreme Court of Virginia found in the Beard Plumbing case that with regards to claims for consequential damages, the consequential damage statute was more specific and controlled over the general "anti-privity" statute.  The consequential damage allowed recovery of losses known by the seller "at the time of contracting ".  Thus, the court ruled that to recover consequential damages under the UCC, the claimant still has to demonstrate privity of contract despite the UCC anti-privity statute.

Next time, we will talk about what are direct versus consequential damages, in particular as it relates to privity and economic loss.  Teaser: if the plaintiff is stuck with the direct damages as precisely defined in the UCC, the plaintiff is one unhappy camper on a construction case.

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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. 

According to the facts set forth in the Petition for Appeal, two new members were elected to the Gloucester County Board of Supervisors in 2007, providing one voting bloc with a new majority of votes.  Among other things, upon being sworn in the members of this new controlling voting block promptly announced the termination of the then current County Administrator and the County Attorney.  This was apparently not discussed with the minority Board members, or announced to the public prior to their action to do so.  Upon learning this, the Commonwealth's Attorney for the county began an investigation and a grand jury was ultimately convened, which returned criminal indictments for the four Board members.

Generally speaking, § 24.2-233 provides a procedural avenue for citizens to have elected officials removed from office by the local circuit court for misuse of public office.  However, until July 1 of this year, § 24.2-238 did not have a Subsection B, which now explicitly prohibits the imposition of the aforementioned sanctions.  While there are several other arguments that have been made why sanctions should not be imposed, the Petition for Appeal begs the general question whether the judicial branch may impose sanctions on citizens who organize and petition the government where sanctions are not expressly statutorily prohibited.  What does Virginia want to discourage more: arguably wasteful and distasteful mass petitioning movements or the judicial branch's authority to suppress such petitions?

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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.

The sustainability policy includes the following highlights:

• Continued support of incentives for public transportation
• Increased education and resources for increased recycling
• Decreased paper and toner usage through increased use of electronic documents, duplex printing and education of use of draft printer settings
• Inclusion of sustainability criteria in vendor and purchasing selections
• Reduction of waste through use of permanent glasses and mugs rather than disposable
• Reduction of energy through appropriate computer, printer and lighting measures
• Last, but definitely not least and my own personal favorite, elimination of bottled water and instead use of water pitchers and glasses (something I know my pal Shari Shapiro will appreciate!)

We see this as being an evolutionary and on-going process.  Please feel free to share your own experiences in adopting such policies and also to add on suggestions for additional ideas moving forward!

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Last 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)

The real potential bombshell is that some homeowners have raised similar complaints of sulfur stench and corrosion, but they have no Chinese drywall ... they have American made drywall.  Scott Wolfson, spokesman for the USCPSC, is quoted in the Washington Post on November 25 as saying, "We are not limited in the scope of our investigation to just Chinese drywall."  One homeowner complaining of problems similar to those alleged in the Chinese drywall cases had testing performed on their drywall which was purely American manufactured.  The tests revealed the drywall was comprised of 50% cellulose.  A report from an MIT professor in the matter indicated that the cellulose compound in the US manufactured drywall was releasing sulfurous gases leading to causing corrosion.  University of Florida tests comparing US and Chinese drywall have found in some instances that US drywall released higher quantities of sulfurous gases than the much derided Chinese drywall.

Where does this leave us?

• Proof of causation of personal injuries on products liability cases is very difficult
• The pending Chinese drywall cases are apt to be hotly contested, but even with proof difficulties, any defendants with means should be scared to death of jury trials
• The focus on Chinese drywall may be obscuring a broader risk in the US manufactured drywall markets that has yet to full materialize

Image by Steevven

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