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

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

This announcement was tied to EPA's express approval of Virginia's state Watershed Implementation Plan (WIP). A statement issued by Virginia Governor Bob McDonnell stated in part, "[T]he approved plan balances the important environmental protection concerns with the need to protect jobs in agriculture and farming. While we maintain our concern about aspects of the EPA watershed model and enforcement authority, as well as the significant additional public and private sector costs associated with plan implementation, we believe Virginia's plan will make a significant contribution to improving water quality in the Bay."

The efforts at EPA to regulate stormwater run-off from development has been a topic we have covered here previously. EPA regulatory junkies will already know that the agency announced in December its plans to move forward with standards regarding greenhouse gas emissions from fossil fuel power plans and petroleum refineries. Certain permitting requirements on stationary sources, in addition to GHG emission regulations of some vehicles, kicked in on January 2, 2011.

It is a tough balancing act between environmental regulation and the economy. The economic climate has battered the construction and development industry and while there are some modest signs of improvement, particularly locally, it is not a explosive market. Similarly, the Bay shows some signs of improvement according to the 2010 State of the Bay report issued by the Chesapeake Bay Foundation, but continues to by a "system dangerously out of balance". Hopefully we can manage the path between Scylla and Charybdis and get this right.

Reprinted with permission, originally published at the Washington Business Journal.

Image by ronzzo1

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

According to a good source, GSA and WMATA are working on a new policy to allow GSA to modify its rent caps for sites that meet certain transit oriented development criteria (i.e. sites within a certain proximity to Metro stations, etc.).  As many of our readers know, GSA caps its rents as a result of negotiations with OMB per rules created to implement the Budget Enforcement Act of 1990. OMB (through Circular A-11) created a set of rules which are used to determine whether a federal lease is an "Operating" or "Capital" Lease. To make a long story short, GSA and OMB have agreed to rent caps to make it easy to stay within "Operating Lease" guidelines. The current Operating Lease rent caps are $34/SF in Maryland, $38/SF in Virginia, and $49/SF in the District of Columbia.  With vacancies finally falling and rental rates starting to rise, the natural effect of these caps will be to push federal office space development away from mass transit locations, which yield the highest rental rates.  Currently, big chunks of space for federal agencies just aren't normally available below these price caps where there are mass transit services available.

This clearly goes against the current policies for transit oriented development being advocated by the current administration, the EPA, HUD, pretty much all of our regional localities, and our state level transportation agencies.  So enter the solution: GSA and WMATA are working together to achieve modify current guidelines to be in line with modern transit oriented development goals to allow GSA the flexibility to adjust rent caps upwards to allow large government employers to locate in areas where there is mas transit systems available to handle the commuter volumes they will create.  Apparently, GSA and WMATA are about five months away from realizing this new policy.  This has the possibility of having sweeping impacts to how and which localities and private interests can capture federal tenants/departments/agencies and the resultant collateral economic development benefits these opportunities provide.  How these new transit oriented development guidelines/policies will define which sites are eligible for upward flexibility for rent caps remains to be seen, but we'll keep on top of it and keep you posted.

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

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

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

The specific questions posed by Delegate Peace were:

"...[W]hether newly enacted § 15.2-2303.1:1, which prohibits localities from collecting
conditional zoning cash proffers at any time other than after completion of the final inspection and prior to issuance of any certificate of occupancy for the subject property, applies to proffer agreements that were formed prior to July 1, 2010, the effective date of the statute... [and] whether such retrospective application would violate the Contracts Clause of the United States or the Virginia Constitutions."

The AG's response was positive for the residential development and building community, providing that, "...as of July 1, 2010 and through July 1, 2014, a locality may not accept or demand payment of any uncollected cash proffer payments, including those agreed to prior to July I, 2010, until the completion of a final inspection and prior to the issuance of a certificate of occupancy for
the subject property, notwithstanding the provisions of any such proffer agreement to the contrary... [and that] this interpretation does not infringe the Contracts Clauses of the United States or Virginia Constitutions."

With litigation between certain localities and developers looming on the horizon on this issue, it remains to be seen whether localities will respect the opinion of their Attorney General or not.  The reasoning behind the AG's opinion was clear and straight forward, that the Contracts Clause was drafted and included in our Constitutions to protect private citizens' contractual rights, not created to be used by localities to claim they are not subject to the authority of the Commonwealth and  statutes enacted by the General Assembly.  Additionally, the AG found that the plain language of 15.2-2303.1:1, as well as the very clear legislative history of the statute, clearly establish the intent of the General Assembly to have the statute apply to all proffers, already existing at the time of enactment the statute and thereafter.  Here's Attorney General Cuccinelli's written opinion if you are interested in reading the entire opinion.
 

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

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

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

The core of the dispute is whether Fairfax County may tax only commercial property owners, such as FFW Enterprises, without taxing residential property owners, to fund transportation projects.  The General Assembly, through Section 58.1-3221.3 of the Code of Virginia, granted authority to Northern Virginia localities to levy special taxes for  transportation projects, and in combination with this authority, Fairfax County created a special tax to fund portions of the Silver Line metro project using Section 33.1-431 of the Code of Virginia.   In a nutshell, Fairfax County taxed commercial property owners a special transportation surcharge and exempted residential property owners from having to do so to fund metro improvements.

Last summer, the Circuit Court of Fairfax County (see here for opinion) held that the Uniformity Clause does not prohibit localities from "...provid[ing] for differences in the rate of taxation to be imposed upon real estate..." so long as these differences are not imposed upon the "same class of subjects."  However, in 1947 pursuant to City of Hampton v. Ins. Co. of North America, the Supreme Court has already held that the test to determine the constitutionality of such a tax is:

"[Alre there others, who are benefited as much or more than those smarting under the tax imposition, who go unwhipped of its burden?"

FFW Enterprises plead just that, asserting that residential property owners will benefit as much from the construction of the Silver Line as commercial property owners in Fairfax, however commercial property owners will bear the sole brunt of the costs and taxes.  Nonetheless, the Circuit Court of Fairfax County found FFW Enterprises failed to establish this, and that the 1947 standard is no longer relevant or applicable.  These questions will now be put to the Supreme Court in just a few weeks - we'll keep you posted.

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

The US EPA was forced to withdraw a portion of its proposed storm water management regulations in the context of a pending court challenge by the National Association of Homebuilders (NAHB) and other parties.  In the pending appeal to the United States Court of Appeals for the Seventh Circuit, the EPA filed an unopposed motion to vacate part of its final rule regarding "Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category".

The rule proposed to establish a numeric effluent limitation on pollutants from construction and development.  The rule limited turbidity to an average daily level of 280 "nephelometric turbidity units" (NTUs).  EPA concedes in its motion that, "[T]he Agency has concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support ..." the rule.

While we are not in a technical position to evaluate engineering and cost impacts of these regulations, NAHB has quoted, and ABC has supported, an estimate of up to $10 billion in cost annually to meet the overall national regulations as proposed by EPA.  We just commented on the regulations generally last week and we believe this is a very significant issue for the construction and development industry.  Ann Cosby at Sand Anderson's Environmental Law blog has a nice summary post of the negotiations in Virginia over sediment limits for the Chesapeake Bay Watershed.

By agreement, the motion requested that the case be held in abeyance for 18 months until February 15, 2012, to allow EPA to address the flaw.  It will be quite interested to see whether the partial retreat by EPA sets off a chain reaction of challenges or delays in other aspects of the pending regulations.

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

The Environmental Protection Agency is in the process of developing proposed national rulemaking to strengthen its stormwater program. The proposed rulemaking, which was previously announced in the Federal Register on Dec. 28, 2009, could dramatically alter the playing field for development of all types.

This is particularly true in the D.C. region given its placement in the Chesapeake Bay watershed. The EPA has recently proposed sediment limits for the Chesapeake Bay in addition to previously issued limits for nitrogen and phosphorous.

I previously commented on the Bean Kinney law blog regarding Virginia’s efforts to regulate stormwater impacts from development, the resulting pushback and modification of those regulations, and the eventual tabling of those regulations in the wake of the election of Gov. Bob McDonnell. Others have noted that the EPA efforts appear to go far beyond the limited regulatory changes proposed and dropped by Virginia.

Supporting developers in their efforts to combat tightening run-off regulations may feel a bit like suing Santa Claus to many, but this regulation could be extremely expensive and burdensome. Some very conscientious builders have indicated to me that the regulations do little if anything to attack primary nitrogen sources, such as air pollution from vehicles, agriculture, or fertilizers used by existing home owners.

As a LEED AP and father of two young children, I am definitely a believer in sustainability in development and construction but a balanced approach is important as is the economy. The building industry is a very easy regulatory punching bag for what is a truly systemic problem.

Commercial developments certified by U.S. Green Building Council under the LEED program may already be subject to some of the requirements to use best practices to minimize construction erosion or even to improve storm water quantity or quality. Some urban localities pay more attention to storm water management issues.

Even so, commercial developers, builders, site work contractors, property owners and the public should study this issue carefully. A dramatic change in stormwater regulations could have very significant cost impacts to the development industry. The regulations will hit an important economic segment that is already beaten down. Worse still, the regulations will hit a market that is very soft and arguably unable to absorb and pass on additional expenses to eventual purchasers or tenants. Interested parties should definitely speak up on this issue early, regularly and often to pass along their points of view.

This article is copyrighted 2010 by the Washington Business Journal, used by permission and originally posted here.

PS - as an interesting post-script, I received an update from ABC this morning that EPA has apparently been forced to make changes in its Effluent Guidelines Limitations in the context of pending litigation.  This story is going to continue to resonate and we will provide updates and the change to comment as received.

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

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

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

Fairfax County took advantage of its discretion to have an ordinance regulating the towing of cars, and passed Section 82-5-32, which contains the following language in Subsection (e):

Every site to which trespassing vehicles are towed shall comply with the following requirement: (1) A tow truck operator must tow each vehicle to a storage site located within the boundaries of Fairfax County….

Three towing companies – Advanced Towing in Arlington County, Roadrunner Wrecker in Loudoun County and King’s Towing in the City of Fairfax – got together to challenge Section 82-5-32 (e). The towing companies each had property management clients within Fairfax County, but Section 82-5-32 (e) exposed them to prosecution for towing vehicles to their storage lots outside of Fairfax County. The companies argued that Section 82-5-32 (e) unfairly discriminated against towing companies outside of Fairfax County and favored companies inside the county, with no rational basis for that discrimination. They also argued that the ordinance ran afoul of the Dillon Rule, exceeded the county’s authority under 46.2-1232.

Regarding the Equal Protection argument, the parties agreed that the ordinance did not involve a suspect classification or fundamental constitutional right, so the “rational basis” test applied. The towing companies argued that forcing them to store the cars in Fairfax County was irrational because their storage lots are located within five and a half miles of Fairfax County, and allowing them to tow vehicles to those lots would better serve the public. Fairfax County justified the territorial limitation by arguing that Section 82-5-32 had many provisions for safeguarding towed cars, such as nighttime illumination, fencing and posted signs. Under the last sentence of Virginia Code Section 46.2-1232 (A), if a car was taken from Fairfax County and towed to a different locality, Section 82-5-32 controlled, creating a regulatory nightmare for Fairfax County. The trial court and the Virginia Supreme Court agreed that Fairfax County’s argument provided a rational basis for the territorial limitations in Section 82-5-32.

Regarding the Dillon Rule argument, the towing companies argued that the ordinance went beyond the power conferred on the localities to regulate towing vehicles under Virginia Code Section 46.2-1232. The trial court and the Virginia Supreme Court once again sided with Fairfax County. The ordinance allows localities to permit vehicles to be towed outside their borders, but did not compel the localities to do so. Nothing else in Section 46.2-1232 mandated where vehicles are to be towed. The Court concluded that localities can exercise reasonable discretion in setting territorial limits regarding where towed vehicles may be stored without running afoul of the Dillon Rule.
 

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

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

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

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

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

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

The bigger news may be that EPA also announced its "intention to regulate the renovation, repair, and painting of public and commercial buildings[.]"   Hopefully the next wave of this roll-out will be less chaotic than the first but the track record thus far is not promising.

A special thanks for our friend Sean Lintow of SLS Construction.  Sean knows this issue inside and out and his blog has tremendous detailed technical information for those looking to delve deeper into the regulations.

Earlier posts:

Lead Paint Regulations April 22: Are You Ready?  Is Anyone??

Renovators Beware: Lead Paint Regulations Change in April

Image by endora57

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

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

The bottom line is that there is no dedicated funding for the DDCRAF at this time.  According to Delegate Oder's office, the purpose of the legislation was to "...set up an account where money can be deposited and a process established where money can be distributed to victims of defective drywall... [and] to put Virginia in a position to be able to react immediately if/when funding comes through, either from the Federal Government or from legal settlements."  All said, Delegate Oder's office provided that the DDCRAF was "...modeled after the Brownfield Restoration Fund currently in place in Virginia."

Thus, anticipated funding would potentially come from two sources: the Federal Government and legal settlements.  At the Federal level, the funding for remediation issues is still being pursued by the Congressional Caucus on Contaminated Drywall, and the financial, health and safety impacts are still being managed and investigated by the U.S. Consumer Product Safety Commission, HUD and the EPA.  The concept of using money obtained from legal settlements is that there will need to be an independent place for this money to be deposited and managed.  So for the time being, the availability of funding is in the hands of Congress and Virginia's own Congressman Glenn Nye, chair of the Caucus on Contaminated Drywall, and his colleagues in the caucus, to do something creative this session.

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

Our blog has been inundated with hits on our two blog posts regarding the EPA's new lead paint regulations, Renovators Beware: Lead Paint Regulations Change in April and Lead Paint Regulations April 22: Are You Ready?.  We have fielded a number of questions from folks looking for information on classes and certification with the EPA.

I thought it would be helpful to provide a link where you can sign up for such training with The Training Network.  Just click on schedule of classes for information on specific dates and locations.  I would encourage folks to consider signing up for the classes held in Chantilly by the Northern Virginia Building Industry Association.  We are very active with that organization and they are doing excellent training and advocacy work for the home building industry.

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

In the last several months, both Haiti and Chile have been rocked by significant earthquakes.  The difference between the tremendous devastation and loss of life in Haiti and the far lower impact in Chile, despite a much more serious earthquake, is at least in part the direct result of building codes and construction practices.

The earthquake in Haiti registered magnitude 7.0 and resulted in an estimated 200,000 people killed.  The Chilean earthquake registered magnitude 8.8, translating to 500 to 900 times more energy released than the earthquake in Haiti.  The death toll estimates in Chile are still preliminary and changing both up and down, but the current estimate appears to be 528 although it has fluctuated up and down from as high as 800.

Why the dramatic discrepancy?  Read more below the break ...

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

The next wave of the EPA's lead paint regulations take effect on April 22.  These regulations will impose new training, certification, work practice and record keeping requirements on contractors performing renovations on structures built prior to 1978.

Reports that we are hearing indicate that the EPA's roll-out of the program has been less than clear.  Some people have struggled to find sufficient openings or available training classes.  Our friend Sean Lintow (@slsconstruction on twitter) reports that in some states, the state governments are taking over the certification process with EPA's blessing, throwing the validity of currently issued certifications into question.

A number of people have asked me specific, important questions which I would like to give my take on, which can be viewed below the break: 

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

Modular home construction presents significant potential improvements to home construction: significantly reduced construction time; less material waste; and reduced expense.  If not handled appropriately in terms of contracts and risk, modular homes can translate to a gigantic headache for both the designers, contractors, and the owner.

Last Thursday, Lisa Rein of the Washington Post wrote an article on mansions turning to modular construction to reduce time and costs.  The article caught my eye - while I have noticed this trend over the last 5 years or so, it was the first time I saw local mainstream press pick up on this.  My friend Jamie Baker Roskie at the always interesting Land Use Prof Blog picked up on the article and connected the thread towards local codes discouraging use of shipping containers as building materials. 

Adaptive reuse of discarded materials is one of the best ways to improve our economy's sustainability, and using shipping containers for modular construction is really an interesting approach.  Don't believe shipping containers make good construction materials?  Browse through a search of the articles at the highly informative Jetson Green blog that address containers and you will see some remarkable uses of containers, from emergency shelters for recovery in Haiti to very sweet, upscale small footprint breach structures.

Turning from containers to wood based modular construction, count me as a believer that we will see industry move towards more pre-fabricated assemblies to reduce cost and time of construction.  Despite my views on the future, I have particiated in some pretty ugly cases involving modular construction.  Based on the repetitive nature of these problems, I draw some conclusions about risks involving modular home construction that may help put the Washington Post's article into a legal context:

1. Prefabricated assemblies are sales of goods governed by Uniform Commercial Code not construction
2. Sales of goods involve different potential warranty theories and defenses than construction implied warranties
3. Sales of goods potentially have different statutes of limitations
4. While the install time may be shorter, manufacturing and delivery time may be a very different story
5. Most owner/contractor agreements involving modular construction are very weak on defining the remote manufacturer's role and responsibilities
6. Similarly, most owner/contractor agreements poorly define timing expectations until the modular unit is delivered and set on the building pad
7. Simple units seem to do pretty well; however, quality control seems to vary wildly amongst manufacturers and even within specific manufacturers depending on the specifics of a projects and the design complexity
8. As with other manufacturer's warranties, if there are problems, owners and contractors may struggly mightily to get manufacturers to respond appropriately to warranty complaints

This may be coming from the skewed perspective of seeing these projects in litigation, what do you think?  What have you seen?  Finally, how has the economic downturn improved or worsened working with modular manufacturers?

Images by Terretta

• Email This
• Print
• Comments (9)
• Trackbacks
• Share Link

After much back and forth, the Soil and Water Conservation Board announced on January 14th that they voted to suspend their hotly debated changes to stormwater regulations to permit an additional 30-day comment period.  The stage was formally suspended on January 26, 2010 which means that the status will be stuck in suspension until a new round of comments opens from February 15 through March 17.

We reported on the both the initial regulations and later changes to the proposed regulations which eased some of their impacts on the home building industry.  The Home Builders Association of Virginia indicates that they mobilized significant response and opposition to even the later round of regulations.

In addition to the underlying technical tug-of-war, there are two interesting political subtexts which may sweep this issue off the table.  First, in the intervening time since the regulations were first proposed, the Republican former Attorney General, Bob McDonnell, has won the Governor's race, Governor Tim Kaine has left office,  and Governor McDonnell has been sworn in.  The impact of the new Governor on these regulations is unknown at this point, but the suspension may be a significant indicator of future direction.

The import of state regulation may be swept away by federal intervention.  The US Environmental Protection Agency has sought comments and then transmitted a second notice on specific stormwater management regulations.  Chesapeake Bay run-off continues to generate active press and political reaction, so the states may ultimately be preempted by federal action in this arena.

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

Rockville based contractor Hann & Hann will pay $600,000 plus the plaintffs' legal fees to settle a wage and overtime based class action suit.  As reported in the Washington Post by Rubin Castaneda on January 30, 2010, Hann & Hann agreed to pay overtime plus 50% for every employee working with the company not paid overtime between May 8, 2006 and May 8 2008.

There are a couple important subtexts to this case and settlement.  First, reports describe the 200 plus employees and former employees as almost all Spanish speaking immigrants.  This naturally raises questions not only of immigration status, but also of whether the contractor was perceived as taking advantage of employees less able to defend themselves.  In this case, the employees not only had the Immigrant and Refugee Rights Project at the Washington Lawyers' Committee for Civil Rights and Urban Affairs on the case, but also were represented by Arnold and Porter pro bono.

Second, claims by employees for unpaid overtime and wages have been a hot topic over the last several years (some more detailed discussion touching on this is available here at Daniel Schwartz' excellent blog).  In many ways, the issue of classification of exempt and non-exempt employees which dictates whether overtime is required dovetails quite closely with distinctions between independent contractors and employees which we recently discussed.  Back wages, penalties and attorneys' fee claims are a big risk in this arena, as is the underlying threat of more involved scrutiny as the weight of the government comes to bear.  Contractors should:

• Take employee classifications seriously
• Understand that mistakes in classifications can translate to serious damages
• The short term benefit of cutting corners can come at a cost that buries your company
• As a result, handle classifications conservatively and pay out overtime accordingly

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

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.

• Email This
• Print
• Comments (5)
• Trackbacks
• Share Link

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.

Image by alykat

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

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.

Image by Timothy Valentine

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

The Washington Post reported on Sunday that the Obama administration will propose taking over safety regulation of subways and light rail, including the regional Metro system.  Metro has been taking a regular beating in the press recently for safety concerns and its anemic response to those concerns.  Metro has apparently gone so far to frustrate efforts to investigate its safety procedures and efforts that it has barred independent monitors from walking along its subway tracks, even escorted by Metro employees, to observe its procedures in practice. 

The frightening revelation is that the safety oversight is apparently imposted by a relatively powerless, "Tri-State Oversight Committee", "which has no employees, office or phone number.  It also has no direct regulatory authority over Metro."   Locally, concerns regarding Metro's safety have mushroomed following a June 22, 2009 crash that left nine people dead and injured 80.  Since then, the Washington Post has reported an another "dangerously close" near miss, an August 9 fatality when track repairman Michael Nash was struck and killed, and another fatality when a Metro technician John Moore was killed in a separate incident in September.

I believe that density based development around the Metro corridors is critical to long-term regional success, reduction of carbon footprint, reduction of use of non-renewable fossil fuels, and reversing or at least slowing down the traffic impacts of decades of sprawl.  A trusted, safe and reliable Metro system is a prerequisite to this entire style of development working.  In particular, the rail extension to Dulles Airport and the interconnected plans to redevelop Tyson's Corner into a more intelligently designed, denser urban center with improved walkability are crucial to the successful continued vitality of the entire region.  Leaving the success of these important ventures in the hands of a powerless committee with no direct regulatory authority is simply not acceptable.

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

In one corner, we have the firefighters and sprinkler manufacturers arguing that sprinkler installation in homes and townhouses will save lives and reduce property damage. In the other corner, we have the home builders arguing that adding a sprinkler requirement is piling on more costs on an already battered industry without appreciable benefits. This debate has raged on the national stage for the last several years and now continues on the state level accross the country.

The National Association of Home Builders strongly objected to sprinkler requirements for single family construction as part of the International Residential Code. NAHB relied upon a 2007 study that the average cost for a 2,200 square foot home would be $5,573. According to Michael Toalson of the Home Builders Association of Virginia, the actual cost is $6,700 per home when financing costs and brokerage commissions are added in. These estimates stand in contrast to reports produced by the U.S. Fire Administration which estimates he costs at $2,200-$3,300.

As with the question of costs, the parties have very different views of the safety impacts of sprinklers. The National Fire Protection Agency estimates that the death rate per fire in homes with sprinklers is 80% lower. NFPA further estimates property damages per fire as 45-70% lower. NAHB and its affiliates have countered by indicating that these statistics include older homes without smoke alarms. According to the NAHB, the survival rate is nearly 99.5% in homes with smoke detectors and the incremental safety impact does not justify adding substantial costs on an already burdened industry.

Despite the NAHB objections, the International Code Council introduced sprinkler requirements into IRC and then voted unanimously to reject NAHB’s appeal in December 2008. Since that time, the debate has moved to the individual states where the IRC is analyzed and adopted into state building codes. This process is on-going in Virginia and the sprinkler issue continues to provoke intense dispute.

Pro-sprinkler advocates may have received a recent boost with the recent report from PrinceGeorge’s County, Maryland. That report indicates that from 1992-2007 , there were 101 fire deaths and 328 civilian injuries in single family and townhomes without sprinklers while those with sprinklers had zero fatalities and only six civilian injuries. Calli Schmidt of NAHB has replied that, “According to the United States Fire Administration, there were NO reported fatalities in the state of Maryland in homes that were equipped with working hardwired, interconnected smoke alarms between 2002 and 2006”.

The discussion is on-going in Virginia where the last round of sprinkler subcommittee meetings in September, 2009 failed, not surprisingly, to produce a consensus as reflected in its report. The next meeting is scheduling for December 3, 2009 and we will keep everyone posted with further developments on this important issue. (Hat tip to our friend Imad Naffa for sending us the recent Prince George’s County Maryland survey information. Imad has recently written a nice sprinkler guide).

Image by Moonez

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

As noted in our previous stormwater regulation discussion, The Virginia Soil and Water Conservation Board has been considering amending their regulations.  Per the Virginia Association of Counties, the Board adopted an amended version of the regulations last night.  The extensive amendments will translate to a new public comment period to begin on October 26.  The Board is scheduled to vote on final adoption "sometime around December 9" according the VACO.

Amongst other changes, the VACO reports the following changes to the rule:

• The phosphorus limit was raised from 0.28 ounds per acre per year to 0.45 pounds in areas outside the Chesapeake Bay watershed
• Sites under an acre of disturbed land will be allowed phosphorus run-off of 0.45 pounds per acre per year as opposed to the original blanket 0.28 pounds
• Redevelopment projects required to reduce predevelopment load of phosphorus by 20%
• Local governments can adopt urban development areas permitting 0.45 pounds

It appears from the changes that concerns raised by local governments and the home building industry gained some traction.  It is particularly interesting that the argument that the original structure of the regulations actually encouraged sprawl seems to have taken some root with the urban development districts and using a reduction model for redevelopment projects.  (Hat tip to Andrew McRoberts editor of the Virginia Local Government Law blog for passing along this breaking news yesterday on Twitter).

Image by Frames-of-Mind

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

The recent New York Times piece criticizing LEED (discussed previously) has reignited discussion of the potential for decertification after initial issuance of LEED certification. Some previously pointed to the USGBC addition of extended energy reporting for five years after occupancy as a "Minimum Performance Requirement" and the threat of decertification as an enforcement mechanism.  More recently, commentators have predicted recertification programs.  Rich Cartlidge even called for a wedding between LEED for New Construction and LEED for Existing Buildings.

The USGBC changes must be viewed against the backdrop of the development of international, state and local building codes and even Congressional legislation.  Codified efficiency standards would clearly and immediately raise the minimum energy bar across the board and reduce or eliminate some of the arguments raised by the Times article.  Reducing compliance to clear codes may also reduce in part the increasingly complex interface between local authorities interpreting prescriptive codes and the interpretive voluntary third party organization subject to little if any legal challenge or appeal (commented on previously by Chris Hill).   LEED as a voluntary tool has succeeded in driving the dialogue and advancing knowledge of green building.  LEED as a remotely delegated code interpretative structure with limited avenues of legal challenge is far more complicated.

With regards to code based approaches to energy efficiency, at least one local energy code has been passed and partially tested ... and stopped dead in its tracks (at least temporarily). The City of Albuquerque passed its own building code with energy efficiency standards. In granting a preliminary injunction blocking application of the code, a federal district court judge made the preliminary finding that it was more likely than not the challenger would prevail based on an argument that Congress had spoken on energy efficiency and that the federal statutes preempted state or local action.

The City of Albuquerque case reached the preliminary finding of federal preemption despite the fact that when Congress passed its energy efficiency measures, it included an express limited caveat that excluded building codes from preemption. The case is still pending, so the ultimate result is up in the air. The case does, however, offer a roadmap to those seeking to challenge statewide and local building code efforts to impose energy efficiency standards.

Given these complexities, it may be simpler for proponents of increased efficiency to do so at the federal level. The Waxman-Markley bill (described as the cap and trade bill by some, by others as The Illiad) includes significant increases in required energy efficiency requirements. While these standards have received extensive attention and commentary from green building bloggers, the press and public discussion of these aspects of the bill have been almost strangely silent.

The interplay of these issues raise a number of questions, particularly if proponents are successful at incorporating energy efficiency standards into federal or state statutes:

• If LEED in fact incorporates recertification and/or on-going performance requirements, will it reach the tipping point where owners and end-users push back on fees and process?
• What is LEED's role in the future if green requirements are increasingly codified? Does LEED always impose higher requirements? Does it stick to a holistic approach and avoid "energy myopia" as coined by Shari Shapiro?
• If/when statutory framework for sustainable development emerges in earnest, will the position of pre-eminence of LEED erode? Is the USGBC's ultimate mission of "working to make green building available to everyone within a generation" furthered more by advancing legal codification or increasing the reach and depth of its current market penetration?

These are the Ghosts of LEED Present.  Next time we will discuss in greater detail the thicket of legal risk and defense issues posed by extended reporting requirements, decertification and recertification, including statutes of limitations and shared/murky issues of risk and responsibility.
 

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

The Virginia Department of Transportation and the Virginia Soil and Water Conservation Board are each respectively in the process of examining and issuing regulations impacting the development and construction industry.  The proposed VDOT regulations cover access management and relate to minor arterials, collectors, and local streets.  The public comment period began September 15, 2009 and is set to end on October 14, 2009.

The Soil and Water Board's stormwater regulations include significant amendments to stormwater management and were designed to address water quality and quantity and local stormwater management criteria.  Public comment ended on August 21, 2009 resulting in 408 comments.   The very significant level of commentary reflects a high degree of citizen and business interest and involvement.  The comments range from general but impassioned calls to defend the environment to quite a bit of substantive critical comments from design professionals, builders, and ordinary citizens regarding the regulations and their potential resulting economic impact.    

In a conversation with me today, Barrett Hardiman, Vice President/Director of Regulatory Affairs for the Home Builders Association of Virginia, encapsulates much of the flavor of the home building industry's reaction to the proposed new stormwater regulations:

"We want a regulation that is best for both the environment and the economy.  What they are proposing does not do much for the environment and does serious damage to an already fragile economy and home building industry.  It does not benefit the [Chesapeake] Bay and will likely cost Virginia billions to squeeze the last bit of phosphorus out of new development."

While the public comment period has officially ended, the Soil and Water Conservation Board has scheduled a special public hearing for further discussion of the suggested changes.  That meeting will be held on Thursday, September 17 at 9:30 am. The meeting will be held at the MCV Campus Molecular Medicine Research Center, 1220 E. Broad Street, 1st Floor Multipurpose Room, Richmond, VA 23219. 

Given the uncertain current status of the proposed regulations and their potential dramatic impact on the development process, proponents and opponents would both be well advised to represent their positions at these continuing meetings.

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