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

Have you heard the DC Zoning Commission is looking into adopting a new set of GAR requirements?  No, we're not talking about the kind of fish that eats every other kind of fish it can fit in its mouth, we're talking about Green Area Ratio ("GAR") requirements.  According to the report prepared by DC zoning staff, the GAR concept is not a new concept, but is a Low Impact Development best management practices tool used in major cities in Europe such as Berlin and Malmo.

According to the USGBC, GAR "..is the ratio of the weighted value of specific landscape elements to land area... [and] is determined by calculating the area of specific enumerated landscape elements, multiplied by a factor assigned to each element, which is then divided by the lot area of the project."  According to DC zoning staff, GAR "...is an environmental site sustainability metric intended to set requirements for landscape and site design that meets goals for stormwater runoff, air quality and urban heat island... [based on] allowing a user to pick among optional elements in order to meet an overall [minimum] GAR score."  DC is proposing to include the GAR regulations within Subtitle B and Subtitles D through J with Subtitle B containing an explanation of the GAR system and the other land use subtitles containing zone specific permission, conditions, and requirements.

In a nutshell, what they are talking about doing is requiring property owner to meet a certain weighted score in relation to the amount of land area they have as a requisite to filing for building permits and approval will be a prerequisite to obtaining a certificate of occupancy.  Submission requirements are outlined in proposed Section 1305, and of course you can get a variance if your site is particularly difficult per Section 1306.  If you need to understand the specific details of what is being proposed, the text amendments and staff report are available here for your review, and the hearing is slated for December 20th before the DC Zoning Commission, with the Zoning Review Task Force considering it on November 27.  Here's staff's slide presentation from October if you want a primer before you dive into the details.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The second draft version of the International Green Construction Code being prepared by the International Code Council (Public Version 2.0) was released last week as anticipated, which incorporates the actions taken at the hearings this past August.  If you have any suggestions on how to improve on Public Version 2.0, Code Change Submittals are now being accepted and the forms are available on the ICC's website.  The final action to adopt the IGCC is a year away, and the public review process will continue until then.  The schedule can be found on their website here, and we'll endeavor to keep you updated as it continues to evolve.

It is a lean, 221 page document, so you're going to have to set some time aside to wade through it.  In a nutshell, it really is a lot like the LEED Reference Guide for Green Building Design and Construction, so if you are familiar with that already, as many of our readers are, it is pretty much the same thing repackaged, but your local Building Official will be interpreting it, enforcing it, conducting commissioning, etc., rather than the current "voluntary" system set up by the USGBC.  There are a lot of kinks that will need to be worked out by each jurisdiction as they elect which components of the IGCC to adopt, as there is a lot of overlap and conflict with federal environmental law, ADA regs, zoning ordinances, etc.  Hopefully, this opportunity is used to clean up some of the conflicts.  Also, where the development community has been in a position to resolve a lot of these conflicts on its own during the various special exception processes, being flexible with design and being able to pick and choose which LEED credits it wanted to chase, we now stand to lose some of this flexibility (i.e. certain components of the IGCC will be mandatory and while other provisions will be elective), so hopefully an eye toward the appropriate amount of flexibility will be maintained during the process - but this may very well be part of the trade-off in the transition from an incentive based system to a mandatory system.

Also, there is no distinction in the IGCC between building types, as it proposes to apply to "...every building or structure or any appurtenances connected or attached to such buildings or structures and to the site on which the building is located."  The IGCC won't just apply to new construction, either, but to "...the design, construction, addition, alteration, change of occupancy, movement, enlargement, replacement, repair, equipment, location, maintenance, removal and demolition of every building or structure..."  That's some pretty broad language...

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

As I was discussing some of Arlington's Community Energy Plan goals with an architect friend of mine the other day, it was apparent to both of us that a number of the County's stated goals for energy efficiency (such as the 30% increase in efficiency) in its plan track the time line for the incorporation of the the International Code Council's Green Construction Code in one form or another by Virginia.  After spending some time reviewing the Synopsis of the International Green Construction Code currently in process to be adopted by November of next year by the ICC, it was clear that what has been contemplated and encouraged by USGBC's third party rating system was adopted by the proposed ICC Green Construction Code.  In fact, the requirements set out for election by jurisdictions should sound pretty familiar to you, such as Site Development and Land Use, Material Resource Conservation and Efficiency, Energy Conservation and Earth Atmospheric Quality, Water Resource Conservation and Efficiency, Commissioning, Operation and Maintenance, etc.  There's even a handy checklist to use, just like the one the USGBC provides.

With the revised public version due out as early as tomorrow (Public Version 2.0), and the Final Action Hearing to be held November 3rd through November 6 of 2011, Virginia will be in a position to review and decide on how to incorporate this new code proposal in 2012, with plenty of time to coordinate and be prepared to implement these new changes by 2015. 

So, how would this impact what USGBC presently does?  Well, it would obviously be profound.  If the International Code Council's Green Construction Code is broadly adopted, mandating equitable green building design in jurisdictions across the country, need for a third-party certification body would be in question.  Ongoing monitoring and enforcement would fall under the legal purview of your local Building Official, rather than a remote "voluntary" certification body, and everybody would be subject to the new code, rather than just those electing to go through the process, broadening the environmental and efficiency impacts dramatically.  However, one difference I noticed that kind of jumped out at me was the lack of reward for innovation, which may unfortunately become a trade-off for mandating design requirements.

So if any of you are wondering how Arlington County expects to be in a position to mandate improvements to by-right projects (both new construction and renovation) through its new Community Energy Plan, hopefully this clears things up.  Here's the official primer video explaining the proposed Green Construction Code if you are interested.

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

How many times have you land use and zoning folks gone through your locality's zoning ordinance, read some random sentence that is a surviving remnant from like the 1938 ordinance, and thought: "What the heck does 'draying' mean?  And what does this have to do with our twenty story office building?"  Or, "Can my neighbor really keep goats in his front yard?"  Well, if you do work in Arlington County, you may not have to deal with these indignities for too much longer.

County staff have officially gotten as sick of the inconsistencies, ad hoc application of rules, and conflicts associated with the current ordinance as everyone else, and finally have gotten the go-ahead to start making things better.  If you read the staff report for the new proposal for a comprehensive re-write of the Zoning Ordinance, it reads like what a P & M session at one your local NAIOP and NVBIA chapter meetings sounds like.  The process will be "officially" kicked-off tonight at a public hearing of the Zoning Committee, and is proposed to be dealt with in three phases over an extended period of time.  The first phase will be a clean-up operation dealing with existing inconsistencies with the Code of Virginia and codifying current practices, the second phase will address major reformatting of the ordinance and the third phase will address major policy amendments.

Substantively, the various zoning districts do not appear to be on the table for major amendments, however, the procedural and policy sections are, as well as some of the latest hot topics.  These include Sections 32A (Landscaping), Section 33 (Automobile Parking, Standing and Loading Space), Section 34 (Signage), the dreaded Section 35 (Nonconforming Buildings and Uses), and Section 36 (Administration and Procedures). 

It also looks like the County intends on hiring outside consultants to help them through the process.  More to follow after the hearing tonight. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I attended the meeting last Wednesday night regarding the impact of Arlington County's Community Energy Plan on the Arlington development community, held by the County's lead consultant, Peter Garforth, of Garforth International, Jay Fissette, the Chairman of the Arlington County Board, and numerous industry representatives.  I initially blogged about this several months ago (see the post "From Ad Hoc Incentives to a Comprehensive Community Energy Plan") when the Arlington Community Energy and Sustainability Task Force began to develop a forty year energy plan for Arlington County.  It is now unofficially official that the end goal of the task force is to create a new, additional component to the County's Comprehensive Plan to be implemented during the various local land use/special exception processes.  It will therefore have major impacts on the development and capital projects industries, as well as a number of utility companies.

The plan is modeled after a number of plans already implemented and apparently successful elsewhere, such as Copenhagen and the City of Guelph, which have been able to identify and align both short-term and long-term energy goals.  We are told the currently unreleased draft plan considers the following:

• Concepts for "district energy" systems,
• Reshaping infrastructure for localization of systems,
• Use of cogeneration systems,
• Goals to reduce the County's carbon footprint (possibly up to as much as 50%),
• Continuation of an emphasis on efficient building design,
• Smart/monitored metering, and
• Public and private investments.

It also sounds like they contemplate this new shared infrastructure possibly being owned, operated and maintained by an independent, third party entity.  Clearly, shared systems and involving a third party entity/owner will make development substantially more complicated from a lot of different perspectives.  Hopefully, however, adequate time is given to consider what kind of incentives/benefits may be available to help private entities hedge or offset some of the risks until these practices become normalized.

I've asked for a copy of the PowerPoint presentation Peter made which outlines a number of these points and I'll post it as soon as I get it.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We've got two new provisions to the Code of Virginia as of this last legislative session which create a perpetual, non-reverting fund to facilitate the remediation of property impacted by the use of "Defective Drywall" in residential construction.  This fund will be administered by the Virginia Resources Authority and the Department of Housing and Community Development ("DHCD"). 

According to the bill's summary, the DHCD will "...develop guidelines for the distribution of loans or grants from the Fund to particular recipients. The grants and loans may be used to pay the reasonable and necessary costs associated with: (i) the remediation of a contaminated property to remove hazardous substances, hazardous wastes, or solid wastes, ( ii) the stabilization or restoration of such structures, or (iii) the demolition and removal of the existing structures or other work necessary to remediate or reuse the real property" due to the effects of "Defective Drywall." Kind of makes you nostalgic for underground storage tanks, doesn't it?

So what is considered "Defective Drywall?"  Well, it's defined at length in the bill's definitions section, so I won't bore you with all the details, but basically it must have been installed during new construction or renovation between 2001 and 2008 and meet the technical requirements of the definition (i.e. sufficient strontium, sulfur or hydrogen sulfide levels, etc.). 

Who can receive loans and/or grants from the fund?  Eligible entities for grants appear to only include local governments (who appear to be able to then use these grants to create incentives for remediation), while loans may also be made to local governments, public authorities, corporations, partnerships, or individuals for the remediation purposes.  The Virginia Resources Authority will get to determine the rates.

So the legislation is in place creating the fund.  What I've learned about government funds though, is that the most important question about any fund is: Is it funded?  Well, I don't know yet.  But I did shoot the bill's patron,  Delegate Oder, an email to see if he could shed any light on how the fund will actually operate for us - we'll let you know when we hear back.

Want to know more about Chinese and other defective drywall from a product liability standpoint?  Check out Tim Hughes' string of posts here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Virginia General Assembly passed a statute, HB 797, that expressly permits architects and engineers to enter into contractual limitation of liability clauses.  The ACEC, VSPE, and VSAIA actively pushed to change the statute in the wake of several cases which ruled that previous language in the corporate enabling statute barred limitation of liability clauses for design professionals.  As can be sen from the bill tracking, the measure passed fairly easily in both the House and the Senate.

In Virginia, most assuredly a freedom of contract state, why did courts feel compelled to toss these frequently used contract provisions?  The friction came from the statute which permitted architecture and engineering firms to practice as corporations.  The current statutory language provided:

No such organization shall limit the liability of any licensee or certificate holder for damages arising from his acts or limit such corporation, partnership, sole proprietorship, limited liability company, or other entity from liability for acts of its employees or agents.

In 2007, an order from the Arlington County Circuit Court used this language in the corporation statute to hold that contractual limitations of liability were unenforceable.  In 2008, the Rockingham County Circuit Court reached the same conclusion. 

Critics of the decision pointed out that the statute in question was dealing with corporate formation, not contractual allocation of risk.  The logic of these decisions is brought into serious question by the Supreme Court of Virginia's 1996 decision in Gerald R. Moore & Sons v. Drewry.  That case held that an individual engineer could not be liable in negligence based on a contract with the engineer's corporate employer (previously discussed in our economic loss series).  Thus, in the very context of corporate versus individual liability that the statute was written for, the Supreme Court of Virginia ignored the statute.  Nevertheless, the courts above used the statute language to wipe out contractually negotiated and agreed to allocations of risk.

There is no retroactivity provision in the statute and the statute involves an amendment and re-enactment of the corporate statute.  Thus, it looks to me like this will only apply prospectively.  Whether that will mean to contracts entered into after the effective date, litigation filed after the date, or motions heard after the date will likely be a matter of some discussion.  We will have to see what happens with contracts and cases in the interim, but this is certainly a very welcome development for those in the design professional community.

Image by

Waldo Jaquith

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Award winning design does not necessarily translate to an effective, successful or liveable built environment.  My interest and passion for interesting design is somewhat tempered by my having seen the consequences of projects not matching constructability and coordination with interesting design.  As I have previously revealed obliquely in my post on How to Pick a Lawyer, I am a junky for interesting technology, construction and design.  I still think that instead of art for arts sake, our building environment is our living environment and at its best, design and construction integrate these two potentially disparate arenas. 

I have spent a career of construction litigation crossing boundaries in the industry.  I cut my teeth defending design professionals, but I have since represented contractors and subcontractors.  I have worked with owners and product manufacturers.  Each camp has its own shorthand description of the failures of others.  I have heard the constant grumblings of the inability of contractors to follow the plans and specifications (or at worst even read them).  On the other side, I have heard contractors complain that architects draw pretty pictures but are clueless about how to put buildings together.  I have seen examples where each criticism was fair and others where they were totally unwarranted.

Placing all this in the context of the end user, I have lived the first hand experience of a train wreck between architecture as high design versus and living in the end product.  I attended Yale University and lived on campus in the Morse College dorm my sophmore year.  When most people think Yale, they envision the gothic style architecture which dominates the campus and is ably represented by the imposing shot of Harkness Tower to the above.  Morse College is a little different ... designed in a distinctly modern style by architect Eero Saarinen.

I was open on some level to Saarinen's style.  I grew up with his Dulles Airport design in Northern Virginia and loved that project with its suggestion of a sweeping plane's wing in the terminal.  Morse College was a little different.  Try living in spaces with literally no right angles in the living areas (which can be seen easily here where there are floor plans for Stiles and Morse Colleges).  As Wikipedia pithily states, "This resulted, notoriously, in two rooms which have eleven walls, none of which is long enough to put the bed against and still be able to open the door."

The lack of right angles was a physical impediment that ranged from a mere minor annoyance to a constant source of fury depending on how your room lottery worked out.  Luckily, our group drew well and my cozy single was pretty workable.  The more complex aspect of preparing to live in Morse College was based in social structure.  For every other dorm, planning for living arrangements basically called for grouping off in pairs.  Sets of best friends could group up into fours for lotteries.  There might be an odd person out here or there, but the numerical structure basically fit typical social conventions.

Not so with Morse.  The numerical structure of the rooms was as completely incongruous as the walls.  Instead of pairs forming groups of four, most room bidding centered around bizarre troups of sevens matching up with other sevens.  Every year, the politics around room assignments were a bloody nightmare of hurt feelings and betrayals.  Reaching up the elder food chain (and while I started in 1984, I had friends who dated back to the 1970's), I was informed that this bitter history was constant and consistently repeated each year.

Now that I litigate construction and design issues on a constant basis, I often find myself relearning the experience of living architecture first hand.    I am fascinated by the tension between celebrated design and practical performance.  I love the aesthetic of Frank Lloyd Wright's Falling Water, but I will admit to a chuckle regarding the near constant structural, mold and water problems at Falling Water.

The best projects are those which marry both art and application.  The most successful projects are those where the architects embody the master builder concept rather than the smug artiste, where the contractors are not only master craftsman but knowledgeable about design and helping with coordination.  It is perhaps utopian to expect everyone to pull the oars in the same direction, but when there are shared values, relationships and mutual respect, it can produce tremendous results in the built environment.

(Credit or blame for encouraging this post should go to my pal Laurie Meisel, social media presence for Architectural Record and Green Source Magazine, amongst other endeavors)

Images:

Harkness Tower by wallyg

Eero Saarinen Dulles Airpor by XYZ+T

Morse College Renovation by Phil Handler

Frank Lloyd Wright's Falling Water by Figuura

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments (7)
• Trackbacks
• Share Link

The story of the collapse of the Dallas Cowboys practice facility collapse continues to point towards serious design flaws as the culprit. The National Institute of Standards and Technology press release regarding its report states that the practice facility collapsed, “under wind loads significantly less than those required under applicable design standards”. A full copy of the draft NIST report and accompanying slideshow are quite interesting. The design and construction firm involved in the project has consistently claimed that severe weather conditions were to blame; however, the NIST report expressly concluded that wind speeds at the time of collapse were well below design loads and further that the demands at code required wind loads exceeded the structure capacity of the facility.

The practice facility was a steel frame structure with a tensioned fabric covering. The practice facility collapsed on May 2, 2009 during a windstorm. Twelve people were injured in the collapse, which left a scouting assistant permanently paralyzed and broke the neck of a special teams coach. The video report embedded with this post includes some harrowing footage prior to and during the collapse.

The factual backdrop of this disaster is fairly remarkable in the rapid and extensive dirt exposed relative to the project. As seen from the timeline prepared by The Dallas Morning News (this and the other links are free, sign-up is required), Cover-All Building Systems and its subsidiary, Summit Structures, designed and built the Cowboys practice facility. Cover-all suffered a warehouse collapse in Philadelphia that the Cowboys were aware of prior to hiring Cover-all for the practice facility project in 2003.

Reports following the filing of suit on the Cowboy practice facility matter have pointed to far deeper problems. It appears that the person who handled initial structural calculations on both the Philadelphia and the Cowboys’ facility was a trainee and unlicensed. Cover-all fired the engineering director of the Philadelphia and Cowboys facility projects. The person identified as the lead engineer of the project stated he had little to do with the project, worked for Summit only briefly, and had been hired to build small farm buildings. After the completion of the Cowboys’ project, the engineering director’s successor warned Cover-all management in 2004, "We can't continue to operate this way or we're going to kill somebody."

The Philadelphia collapse eventually resulted in a very large verdict against Cover-all. The Cowboys expressed some concerns regarding their facility and Cover-all eventual reinforced the facility roof, but that obviously was not sufficient to stave off the collapse.

There are a couple takeaways from this horrible event:

• Follow your instincts – if you are worried about your designer or contractor, there are probably good reasons
• Follow up on licenses, codes and inspections – reports indicate that permits were not pulled for the 2008 retrofit work as required
• Get second opinions when reasonable and required
• Know the qualifications and background of key personnel
• Don't assume
• To quote both my wife and Ronald Reagan, Trust but Verify!!

 Image: Copyright Silver Smith, 2009

• Email This
• Print
• Comments (7)
• Trackbacks
• Share Link