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

The Empire State Building retrofit project is reaching for rarefied air: improved energy efficiency,  reduced carbon emissions, and rapid and healthy return on investment.  Recent case study documentation for the project suggests this project will hit the ball out of the bark on all fronts.  Highlights include:

An estimated 38% energy savings compared to high level class A office space

A 3.1 year payback on the incremental cost increase to fund proposed energy efficiency measures

• An 9.2% estimated tenant space savings when increased project costs are weighed against the net present value of energy savings to tenant space fit-outs
• Reduction of well over 100,000 tons of CO2 emissions over 15 years

This project concept directly touches on the concepts of energy efficiency, performance and return on investment that formed the backbone of the recent Trends in Building Green seminar we discussed here.  The Empire State Building project also serves as not only a model, but a potential market game changer and advances many of our predictions for this next building cycle.

On a personal note, I spend a lot of work time looking "green" issues from a contracts, client or risk management perspective.  I spent a lot of personal time thinking about sustainability for its own sake in the context of raising a family and working towards a sustainable future economically and environmentally.  I like environmental sustainability for its own sake, but I love when creative and motivated people fuse the moral high ground with economic success.

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With well over two thousand bills filed for this session, I was curious to see what our local urban delegates and senators have chief-patroned this year.  So here's what they're up to:

Delegate Brink has patroned HB 1260, which proposes that the Uniform Statewide Building Code should also apply to buildings or structures built on state-owned property and that the Department of General Services would act as the building official for all such buildings.  He has also patroned HB 1314 which contemplates providing financial incentives equal to twenty percent of delinquent taxes collected by tax collectors, chargeable to the taxpayer in addition to the amount of the delinquent taxes.

Senator Whipple has also patroned two bills.  SB 665 would clarify the authority of the Common Interest Community Board relating to disciplinary actions and fact finding procedures.  SB 681 suggests delaying the effective date for the stormwater management regulations passed last session for a year.

Adam Ebbin, via HB 1222, proposes that electric utilities establish a fund to allow voluntary contributions by customers so that the SCC can use the money to incentivize projects that incorporate photovoltaic devices, solar water heating devices, or solar space heating.  He also thinks that HOT lane shoulder widths should be wide enough to handle transit vehicles, HOV service does not deteriorate, and ingress and egress from local connector streets are adequately addressed (see HB 1223).  Delegate Ebbin also thinks vehicles used in abductions should be forfeited (HB 1113)  and that your income tax filings should be due on April 15 to sync up with the federal deadline, rather than May 1st (HB 1278). 

Delegate Englin wants online political advertisements to be subject to disclosure requirements regardless of space to do so (HB 1261) and  wants to see automatic acceptance of service members to Virginia colleges who were in the top 10% of their graduating class (HB 274).

Senator Ticer wants to amend the charter of the City of Alexandria so that the board of review of real estate assessment is composed of nine members rather than five members, with five members appointed by the circuit court and four members appointed by city council (SB 572) and to allow for TDRs in zoning ordinances in localities with the urban county executive form of government (SB 636).  She also would like to see a license plate for recycling advocates (SB 709) and some careless driving offense proposals (SB 566).  She also proposes relaxing campaign contribution reporting requirements for local officials (SB 723).

Delegate Hope thinks that the Commonwealth Transportation Board ought to give first priority to funding transit operating costs rather than transit capital projects (HB 421), wants to prohibit smoking in all public buildings (except certain portions of corrections facilities) (HB 1351), and most notably, is chief patron of the Green Public Buildings Act (joined by Brink and Ebbin) (HB 1264), which would require all new construction public buildings over 5,000 SF (or renovations amounting to over 50% of the value of the building) to achieve LEED Silver certification or Green Globes two globe standards, achieve energy savings that exceed ASHRAE 90.1-2004 standards by at least 15 percent for new construction and 10 percent for major renovation, and  to provide water use savings of at least 25 percent over the baseline standard established in the federal Energy Policy Act of 1992.

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The Trends in Building Green panel last Thursday morning was a great success.  There were a couple interesting take-aways from the panel's materials and presentations:

• Smart property owners need to be taking energy savings seriously; Tommy Russo, Chief Technology Officer of Akridge, described their highly detailed efforts to analyze and implement projects with a reasonable return of investment horizon;
• Per Tom Mawson, Executive Director of the USGBC National Capital Region Chapter, the "USGBC is all about market transformation"
• Bobby Christian, CEO of Green 20 Now, LLC, and Mike Scelzi, President of Net Metering, Inc. demonstrated just how far we have come with access to energy metering information, and its implications on operations and cost savings
• Chris Pyke, Director of Research for USGBC, provided a wonderful overview of where LEED has been and where it may be going, in particular in the context of on-going performance of buildings and where those measures may not match design.  For Chris and USGBC, the question primary question: "Is there a commitment to demonstrated performance ... which is leadership" with regards to energy efficiency and sustainability.
• I covered some of the press crititiques of LEED, what the actual projects demonstrated, and finally where the performance debate may create significant liability issues in the future

My presentation is here for those who are interested.  Mike Scelzi was also kind to provide his presntation as well.  Please feel free to contact me if you have any questions or are interested in tracking down some of the participants or issues we covered.

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Owners, developers and builders working in the renovation arena beware: the EPA's new regulations on lead paint take effect on April 22, 2010.  The regulations are contained at Title 40, Part 745 of the Code of Federal Regulations.  There are some very important highlights:

Effective April 21, no firm may offer or perform renovations in "target housing" without certification (40 CFR 745.81). Target housing means any housing constructed prior to 1978, so renovators working in homes, apartments or condominiums built prior to 1978 need to take this seriously.

There are only very limited exceptions, such as where a certified inspector has determined the project is free of lead paint beyond permitted levels (40 CFR 745.82). Projects with no children or pregnant woman that are owner occupied can also qualify for excluding coverage, but only if the owner signs off that the firm is not required to meet the regulatory practices (40 CFR 745.82).

• Firm's performing renovations have extensive obligations to give disclosure and notice to building occupants in writing prior to renovation, including providing mandating EPA publications (40 CFR 745.84)
• The regulations further include specific work practice standards, so watch out for potential employee personal injury claims and OSHA inspections and violations as well (40 CFR 745.85)
• Even relatively minor work is swept up in the requirements: generally work disrupting more than 6 square feet of painted area is regulated (40 CFR 745.80, 745.83)
• Persons and firms performing work in this arena must provide their customers the EPA's brochure, Renovate Right (40 CFR 745.81)(please note: the publication requirement is already in effect, so if you are not doing that now, you need to start immediately!).

On a final note, there is an entire training and certification regime established by the EPA.  In a down economy, this may be a good area to jump in and develop expertise and a market niche.

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Virginia Delegate Mark Cole is up to it again, proposing another amendment to the business, professional and occupational (“BPOL”) tax laws. Delegate Cole sits on the House of Delegates Finance Committee, and represents the 88th District, spanning Stafford, Spotsylvania and Fauquier Counties and the Town of Remington. As you may recall from my last blog post on proposed business tax reforms in the Commonwealth, he sponsored HB 57, which would freeze BPOL tax rates, and prohibit those localities that do not have a BPOL tax from imposing one.

Currently, the BPOL tax is targeted at a business’s gross receipts, defined by Virginia Code Section 58.1-3700.1 as a company’s “whole, entire, total receipts, without deduction.” Delegate Cole’s proposal, HB 110, would allow localities to decide whether to impose their BPOL tax on a business’s gross receipts, or on its Virginia taxable income.  HB 110 provides two methods to calculate "Virginia taxable income," depending on which is applicable to the business -- a calculation under Virginia Code Section 58.1-322 (Virginia taxable income for residents) or under Virginia Code Section 58.1-402 (Virginia taxable income for corporations). 

Undoubtedly, localities may be skittish of these changes in the face of some very hard economic times and dwindling local budgets. However, businesses should view HB 110 as a welcome change to take the sting out of what many consider to be the harshest aspect of the BPOL tax – the notion of taxing gross receipts with no ability to consider adjustments or deductions.
 

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A post yesterday from our friend Chris Hill at Construction Law Musings really resonated with me on a critical skill that many lawyers seem to lack.  The post, "What Owners Look for in Green Building and Why Contractors Should Care" advocated that contractors should know and understand what project owners were looking for in green buildings.  As Chris states well, "Knowing the other side's playbook is one way that a football team can prepare, the same holds true in pre-construction negotiation of contracts."

This same concept can and should be applied in every legal context.  If I cannot understand the strengths and weaknesses of not only my case, but also my opponent's, I am wearing blinders and courting disaster.  Not being able to play both sides of the chessboard is asking for surprises.  In negotiations, that means losing ground unnecessarily.  In litigation, it can mean flat out losing the case.

For years, a pocket classics translation of Sun-Tzu's absolute must read, The Art of War has lived on my desk.  A classic passage from centuries ago echoes this issue:

So it is said that if you know others and know yourself, you will not be imperiled in a hundred battles; if you do not know others but know yourself, you win one and lose won; if you do not know others and do not know yourself, you will be imperiled in every single battle.

For clients on the receiving end, you should understand and cherish the need for your lawyer to play the "devil's advocate" role in testing assumptions, articulating weaknesses, and educating you regarding the strengths and weaknesses of your position.  Ultimately, that very approach may mean success or failure of your matter.

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The Supreme Court of Virginia issued an opinion last Friday in the case of Virginia Home for Boys and Girls v. Phillips  that reads like a law school examination question.  The court ruled that a man had no claim against an estate because he had no written contract and no independent verification.  

The basic principles are easy.  The statute of frauds in Virginia generally provides that all contracts for the sale of real estate must be in writing.  The so-called "Dead Man's Statute" provides that in cases where the opponent is incapable of testifying, no judgment shall be rendered if it is founded solely on uncorroborated testimony.  Both of these statutes make it incredibly difficult for a party to make a claim against an estate based on oral contracts, particularly claims involving real estate.

Despite these principles, the claimant in this case actually won at the trial court.  Part performance of the agreement can eliminate the requirement for a written contract.  Phillips claimed an agreement in 1977 that the estate should go to him if he helped on their farm and took over their operations.  The trial court was convinced based on the long history of changes in lifestyle, decades of assistance around the decedent's farm, and refusing to take more lucrative jobs in order to live by his agreement that Phillips story was on the level.  Unfortunately for Phillips, the Supreme Court of Virginia reversed and found there was no independent corroboration.

This case provides a couple important take-aways:

• All contracts involving real estate should be in writing
• Do not expect limited exceptions to basic rules to save your case, especially in Virginia
• Any arrangements that are effective upon death should be confirmed in writing
• Any business ownership transfer issues should be in writing or you risk estate planning arrangments trumping the oral business deal

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I am writing with a very quick update on the status of the non-suit in Virginia, the subject of our very first blog post here.  While Virginia is typically viewed as a conservative and somewhat pro-defendant forum, it does have one very nice procedure that is very beneficial to plaintiffs, the right to take one voluntary dismissal with prejudice at virtually any time and start the case over again (called a statutory non-suit).  The plaintiff then gets the original statute of limitations, or an extra six months from entry of the non-suit order to re-file their case.

Our first post detailed the Spear v. MWAA case in Virginia where a plaintiff had filed a new case with a different requested damages amount.  Judge Chamblin from Loudoun County Circuit Court ruled that because the amount requested was different, it was not the same case and thus did not get the extra six-months to refile.  The case was therefore barred by statute of limitations.  This case has been the subject of not only significant commentary and criticism, but also has spawned a petition for appeal.

Virginia Lawyer's Weekly now reports that Judge Lane in Rockingham County Circuit Court has analyzed the same question and reached the opposite result.  Judge Lane found in O'Hearn v. Mawyer that refiling with a different request for damages is still the "same action" and entitled to the six month tolling period to refile.  At least one plaintiff's attorney is now breathing a little easier.

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Abuse of independent contractor status continues to get significant regulatory and legislative attention.  Critics of this practice argue that misclassifying employees as independent contractors is an unfair competitive advantage and robs federal and state governments of justly due employment related taxes.

On the federal level, there have been rumblings over the last year of not only stepped up scrutiny through both the Internal Revenue Service and Department of Labor, but also bills proposed in Congress during 2009 which would curtail the scope of current safe harbor provisions.  I received a note from Associated Builders & Contractors yesterday pointing to a recent new bill introduced by Sen. John Kerry which would rewrite existing safe harbor provisions and require all employers to obtain written documentation from the IRS as a precondition to independent contractor status.

The feds are not the only ones getting in on the action.  Our friends at Aronson have previously reported on the State of Maryland's creation of a multi-agency Task Force to coordinate investgations of work place fraudulent practice including misclassification of employees.  The Task Force report, issued in December 2009, details tens of millions of dollars of lost tax revenue which makes this topic tasty to legislators in these cash strapped times.  Other states are pursuing similar efforts, such as those in Connecticut analyzed by our good friend and terrific employment blogger Daniel Schwartz.

We see this issue continuing to gather steam, especially given the nationwide budget and tax shortfall issues faced at every level of government.  Here are some take-aways:

1. Contractors should be extremely conservative in classifying independent contractors
2. Be wary of exercising too much control over independent contractors
3. Know the regulatory standards and get help analyzing the question
4. Understand the downside: not just payments of the back taxes, but potentially interest, very heavy penalties, imposition of personal liability on corporate owners, and even criminal sanctions.

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Wading through the various layers of requirements, enticements, incentives and regulations that apply to green building can be overwhelming to anyone, let alone the uninitiated.  This process is made far more complicated by adding the layering of federal, state, and local government efforts in this field.

The United States Green Building Council has this effort very easy with regards to LEED related public policy searches.  USGBC has a search engine with multiple selectable criteria to sift through the oceans of regulations to find what you are looking for.  I cannot say the entire database is perfect, but I can say that it appeared that the Virginia state and local discussion was basically accurate, including the status of the green building ordinances in Arlington County, Fairfax County, and the City of Alexandria.

USGBC naturally has an interest in promoting the USGBC's interests with its efforts and these tools are no exception.  The only pet peeve I have is that some of the commentary seems to slant the discussion entirely towards LEED standards without a recognition of the role other standards may play in these regulations.  For example, the USGBC description of the City of Alexandria policy states,

On April 18, 2009, the Alexandria City Council adopted their Green Building Policy requiring all new municipal buildings to achieve LEED Silver certification and all new commercial buildings to achieve LEED Silver certification. The policy also requires all new residential buildings to be LEED Certified with the intention of increasing the standard over time.

In reality, the City of Alexandria policy expressly recognizes the ANSI approved ICC-700 2008 National Green Building Standard for residential construction.  The ICC-700 standard was developed by the National Association of Home Builders in partnership with the International Code Council.  The City's overall adopted standard further provides that while LEED is typical, to the extent equivalent rating systems are available and can be demonstrated as equivalent to the Director of Planning and zoning, they are also acceptable.

That limited comment notwithstanding, the USGBC search engine is a great free tool to dig out federal, state and local requirements.  Careful and prudent use will require clicking through to the underlying source links and maybe digging a bit for confirmation, but used carefully the search tool can save a ton of time and effort.

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I am pleased to invite everyone to attend the upcoming Trends in Building Green Seminar on January 21, 2010. 

Date:       January 21, 2010

Time:       9:00 am - 12:00 pm (breakfast 8:30 am)

Location: National Rural Electric Cooperative Ass'n

                  4301 Wilson Blvd., Arlington VA 22203

A full listing of speakers and information is available, but the main topic is on green buildings and energy.  I will be speaking on some of the historical energy related issues with LEED structures, the attention they have received, and what this may translate to in the future both for LEED and liability exposure;  these topics have received a lot of interest and commentary generally, and we have also commented on them frequently here.

Anyone interested in attending should RSVP to Nancy Shipley of Rutherfoord by Tuesday, January, 19 at 703-813-6575, or nancy.shipley@rutherfoord.com.

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Andrew McRoberts reported on Thursday that the Virginia Association of Counties released its Model Transfer of Development Rights Ordinance for Virginia Localities.  Andrew was part of a working group that worked with a number of stakeholders to develop this model ordinance so that it may be used as a guide for localities in Virginia unfamiliar with the concept, application and practice of using transferable development rights, or "TDRs."

TDRs have been used in various places throughout the country for some time now.  Even in Virginia, the County Manager form of Government (as is the case in Arlington County), has been permitted to allow TDRs in its zoning ordinance since 2005.  In a nutshell, TDRs are simply the right to separate the density from one site and convey the density to another site.  This is typically done by identifying which sites can be a "sending site" or a "receiving site" in a locality's comprehensive plan and/or its zoning ordinance.  In Arlington County, for instance, TDRs have been implemented vis-a-vis its unique special exception process (the 4.1 Site Plan Process), and have also been enabled for its Clarendon Sector Plan.

TDRs are an excellent tool which provide useful flexibility for both localities and private interests.  This tool can allow localities to preserve important historical sites and other sites of interest while still allowing private landowners to sell the density off of a site, thus preserving their property rights. It also lets localities encourage redevelopment in areas that don't need extra height or density without having to provide valuable incentives that might otherwise cost localities money (i.e. tax credits, etc.).

The Model Transfer of Development Rights Ordinance for Virginia Localities was drafted to reflect the 2009 updates to Code of Virginia Sections 15.2-2316.1 and 15.2-2316.2, which "...[allow] severance of development rights without their immediate reattachment to another property... [and] provide for local taxation of the severed rights as a separate property interest during the time they are unattached to a specific land parcel."  The model provides example ordinance provisions and definitions, explanatory commentary for the model provisions, and even model legal documents for use when transferring density. 

Being able to transfer density has lead to some pretty interesting transactions and land use/zoning solutions for us here at Bean Kinney, and I am excited to see this very useful tool implemented in other localities in the Commonwealth.

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Energy production, sources, costs and impact are a constant fundamental part of the economy and the construction industry.  Nevertheless, there is a diverse flood of fuel related topics and commentary over the last week or two in Engineering News Record that is suprisingly interesting and dense.

On the biofuel front, ENR reprints and AP report that the biofuel market is particularly dead.  A federal tax credit has expired and, "The biodiesel industry is now operating at only 15 percent of its potential capacity, according to the National Biodiesel Board, largely because the price of traditional diesel has collapsed."  Meanwhile, ENR separately reports that the Canadian government has ordered a study into the environmental and health effects of producing ethanol and biodiesel fuels.  While this is not the first such critique of some ethanol or some biodiesel products, it cannot be heartening for biodiesel producers when juxtaposed against the current economy.

In a more heartening turn, ENR highlights a report of a California trash to gas project that is being used to run a fleet of Waste Management, Inc. garbage and recycling trucks.  The project converts methane gas created by deteriorating natural waste at a 240 acre landfill serving San Francisco and Oakland.  "We've built the largest landfill-to-LNG plant in the world; this plant produces 13,000 gallons a day of LNG," said Jessica Jones, a landfill manager for Houston-based Waste Management. "It will take 30,000 tons a year of CO2 from the environment."   Finally, ENR rounds out the energy card with Don Short's opinion blog making a forceful call for loan guarantees and regulatory support for complete replacement of coal and gas electrical plants in favor of nuclear power.

In my view, energy is absolutely core to sustainable design and development.  Nevertheless, it is striking to see ENR pulling on so many different threads of the energy cloth in such a short period of time.

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Tax reform means “Don’t tax you, don’t tax me, tax that fellow behind the tree.” – Russell Long, U.S. Senator from Louisiana, 1948-1987.

Despite the budget crisis facing the Commonwealth and local jurisdictions all around Virginia, the General Assembly is considering new tax credits and limits in its upcoming session.

HB 2 proposes a tax credit equal to ten percent of the eligible investments made by small business tax payers in personal property and real estate improvements used in the business. Acquisition of or expenses related to motor vehicles used in the business and purchase or rental of real estate will not qualify as eligible investments. Qualifying investments must be at least $10,000 and must be made beginning July 1, 2010 but before July 1, 2011. For purposes of this proposed tax credit, a business qualifies as “small” if it has 500 or fewer employees. The patrons of HB 2 are Delegate Manoli Loupassi of the 68th District, which includes parts of Chesterfield County and the City of Richmond, and Delegate Christopher Peace of the 97th District, which includes parts of Hanover, Caroline, Henrico, Spotsylvania, King William and King and Queen Counties.

HB 47 proposes a tax credit to employers for expenses incurred in allowing employees to telecommute pursuant to a signed telework agreement for taxable years beginning on or after January 1, 2011 but before January 1, 2013. Under this proposed tax credit, an employer is eligible for a credit of up to $1,200 per teleworking employee, depending on the number of days per month the teleworking employee teleworks and whether the employer’s primary place of business is located in a nonattainment area under the Federal Clean Air Act. The employer may also receive a 100% tax credit (capped at $20,000 per employer) for costs incurred for conducting a telework assessment in the year prior to implementing a formal telework program. There is a $1 million annual cap for taxable years 2011 and 2012 for the aggregate amount of tax credits to be issued. This seems like a good deal for the constituents of Delegate Scott Lingamfelter of the 31st District, who is sponsoring this bill. Delegate Lingamfelter is based out of Woodbridge, an area that could greatly benefit by an increase in telecommuting.

HB 57 seeks to prohibit localities from imposing a business, professional and occupational license (“BPOL”) tax if they have not already done so as of January 1, 2010. Additionally, the bill freezes BPOL tax rates in jurisdictions that have already chosen to impose BPOL taxes. This bill is being introduced by Delegate Mark Cole of the 88th District, which spans Stafford, Spotsylvania and Fauquier Counties and the Town of Remington. Unlike its neighbors, Stafford County had no BPOL tax until 2008, when the Stafford County Board of Supervisors narrowly voted to impose the tax by a 4-3 vote. The Stafford County Sun’s article shortly after that vote discusses how opposed Stafford residents were to the tax, and how controversial the vote was. In fact, Stafford County residents were not the only ones opposed to the tax. Some Spotsylvania residents, who were already subject to the BPOL tax, felt that the lack of a BPOL tax in Stafford not only gave Stafford a competitive edge, but also put political pressure on their local politicians to keep their taxes low. You can read one take on this theme in a blog post on the Spotsylvania Republican Committee’s blog, On the Spot.  For an overview of what jurisdictions have imposed BPOL taxes as of 2005, take a look at this chart meticulously pulled together by the University of Virginia's Weldon Cooper Center for Public Service.
 

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As we kick off 2010, it is a good time to make some predictions on the future of green building. While these predictions anticipate a longer time horizon than just the coming year, my bet is we will see some of these trends manifest during 2010. We can also expect that some of these topics will be the subject of a lot of discussion here and elsewhere over the coming year.

1. The marketplace will demand green buildings as the baseline building product. This is particularly true in markets that show signs of economic vitality where construction, redevelopment, or renovation are most likely to occur. (See for example the recent AGC article  highlighted by our friend Chris Hill).
2. Newly built buildings which are not designed and built using sustainable practices will struggle in the marketplace.
3. The marketplace will continue to struggle independently evaluating green building information and concepts. As such, rating systems such as LEED will continue to hold significant focus in the sustainability conversation for some time.
4. Energy efficiency will receive increased attention as the most important yardstick in measuring the sustainability of specific structures. (Here is an example of the discussion regarding the LEED energy debate).
5. The anticipated ASHRAE green code and other code based alternatives will gain traction in comparison to LEED ratings with respect to energy efficiency (see also Chris Cheatham’s recent post on local energy regulation and energy labeling).  LEED will continue to have a significant place for overall evaluation of projects; however, LEED will need to respond to energy performance concerns or risk losing attention to evaluations methods which are more focused on actual energy performance.
6. Longer term investment strategies in commercial property are more in vogue leading to owners who are more interested in operational expenses. Look for increases in renovations of existing buildings focusing on improvements to energy efficiency of older buildings.
7. Governmental bodies will continue to drive sustainable building as a prerequisite both through their own acquisitions and regulations. This trend will further fuel the feedback loop of the marketplace demanding green buildings.
8. Look for continued tension with regards to bonding requirements of green buildings, particularly where specific green performance bonds are required (such as DC’s bond requirement which takes effect in 2012, discussed by Kevin Kaiser at Best Practices Construction Law).

Do you think these are likely to happen?  Did I miss any other big ones?  We are interested in your thoughts, please comment!

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