(703) 369-4738

Author archives: Yolanda Burnett

1
Feb
2023

New Water and Sewer Allocation Ordinance Does Not Constitute an Unconstitutional Taking 

Written by: Guy Jeffress

The recent case of PEM Entities LLC v. County of Franklin (2023 WL 105711), out of the United States Court of Appeals (the “Court”), reminds us that the imposition of new rules or restrictions by a local government, although onerous in their application, do not always constitute a diminution of a vested right or an unconstitutional taking. 

The cited case involved the development of a multi-phase, single-family residential community (the “Subdivision”) in Franklin County, North Carolina (the “County”). In 2005 the County approved a single-page “Preliminary Subdivision Plan” for the development (the “Plan”). Notes on the Plan indicated the development would be “served by Franklin County water and sewer to be installed by the developer.” In 2012 the appellant, PEM Entities LLC (“PEM”), acquired 150 acres of undeveloped land located within the Subdivision and subject to the Plan. In 2019 the County adopted a water and sewer allocation ordinance (the “Ordinance”) that established an application process for new water and sewer connections and capped water allotments for new developments. The new restrictions imposed by the Ordinance were not well received by the Subdivision developers, including PEM, who argued they were exempt from the restrictions due to the County’s approval of the Plan in 2005. In the same year, the County passed the Ordinance, PEM, and the other Subdivision developers entered into a settlement agreement with the County (the “Settlement”) in an attempt to resolve disputes involving road and water services. The terms and conditions of the Settlement included the following provision: “except as set forth in this [a]greement,” “[a]ny vested rights accorded to the [p]roperty under the [Plan] shall not be modified or supplemented by any subsequent action including ordinance, rule and/or regulation of [c]ounty.” 

In 2021, PEM sued the county in federal district court, alleging, in part, that the Ordinance effected an unconstitutional taking of PEM’s vested property right to receive water and sewer services under the Plan. The district court dismissed PEM’s complaint reasoning that neither the Plan nor the Settlement “create[s] a property interest for [PEM] in an unlimited right to water and sewer service,” and PEM “failed to demonstrate a concrete particularized injury for Article III standing” on its takings and due process claims. On appeal the Court, reviewing both U.S. Supreme Court concerning takings and due process claims, as well as North Carolina state law regarding vested rights based upon government approvals, found that neither the Plan nor the Settlement created a vested property right, and without a constitutionally protected property interest the “takings and associated due process claims fail as a matter of law.” 

In Virginia, in response to numerous cases concerning the vested rights of property owners, the legislature enacted Code Section 15.2-2307. 15.2-2307(B) sets forth various types of governmental acts which are deemed to be significant affirmative governmental acts allowing development of a specific project. The fifth such act in the list reads as follows: “(v) the governing body or its designated agent has approved a preliminary subdivision plat, site plan or plan of development for the landowner’s property and the applicant diligently pursues approval of the final plat or plan within a reasonable period of time under the circumstances.” Applying the quoted portion of the Virginia statute to the facts of the PEM case would most likely end in the same result, i.e., the preliminary plan was approved, however, according to the cited opinion PEM did not diligently pursue approval of a final plan. In fact, PEM acknowledged on the record that it never requested that Franklin County approve a final plan of subdivision. Additionally, in light of Virginia law, the extent to which the Plan vested PEM with future rights to unlimited water and sewer services is also questionable. 

Land use, zoning, and questions concerning vested property rights are often wrapped up in a complex web of state and local ordinances, prior case law, political change, constitutional rights, and local planning, permitting, and zoning processes. If you are facing land use, zoning, or approval issues with your project, contact the attorneys at Vanderpool, Frostick and Nishanian, P.C. for assistance. 


Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

25
Jan
2023

Are You Keeping Proper Records?

Written by: Guy Jeffress

The recent federal case of Renee Mason, DPM, v. Brian Mazzei, Et Al., 2023 WL 234777, out of the U.S. District Court for the Western District of Virginia, highlights the importance of adhering to proper record-keeping formalities, even if you are involved in the operating of closely held company. The case at hand involved a small professional corporation founded in 1995. After reviewing the evidence and holding a hearing on a motion for summary judgment, the court found that the lack of resolutions, consents, a properly kept share register, the failure to issue share certificates, and other conflicting evidence, including the testimony of Mason and Mazzei, made it difficult to determine the identity of the shareholders, or shareholder, of the corporation. To quote the opinion, “The record is unclear whether stock certificates were ever issued and whether the parties paid for their shares. . . The only stock certificate book in the record is full of blank certificates beginning at the certificate marked number 0. Mazzei testified that no money was ever paid for the stock. Mason testified that she believed the parties had paid for the stock . . .” Thus, there remained a genuine issue of material fact as to whether either or both the plaintiff Mason, and/or defendant Mazzei were in fact, shareholders. The inability of the court to make a determination will result in the further expenditure of time and money to determine something that could (and should) have been resolved years before. The everyday effort of operating a business can result in a situation where the preparation and maintenance of company records gets put on the back burner. If you have questions or concerns about record-keeping formalities for your own company, please contact the attorneys at Vanderpool, Frostick & Nishanian, P.C.


Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

19
Jan
2023

Take Heed!

Written by: Guy Jeffress

Virtual currency exchange Bitzlato was identified as a “primary money laundering concern” in connection with Russian illicit finance.

Today (Jan 18, 2023) the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) issued an order that identifies the virtual currency exchange Bitzlato Limited (Bitzlato) as a “primary money laundering concern” in connection with Russian illicit finance and “advances the political and economic destabilization efforts of the Government of Russia.” The order is the first order issued pursuant to section 9714(a) of the Combating Russian Money Laundering Act and highlights the serious threat that businesses which facilitate and support Russian illicit finance pose to U.S. national security and the integrity of the U.S. financial sector. The order prohibits certain transmittals of funds involving Bitzlato by any covered financial institution.

News Release: https://www.fincen.gov/news/news-releases/fincen-identifies-virtual-currency-exchange-bitzlato-primary-money-laundering

Order: https://www.fincen.gov/sites/default/files/shared/Order_Bitzlato_FINAL%20508.pdf

FAQs: https://www.fincen.gov/sites/default/files/shared/FAQs_Bitzlato%20FINAL%20508.pdf


Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

18
Jan
2023

Concept Of “Disguised,” Or “De Facto” Dividends Discussed In Recent Maryland Case.

Written by: Guy Jeffress

Edward MEKHAYA v. EASTLAND FOOD CORPORATION, et al., 2022 WL 17843057

Appellate Court of Maryland (formerly the Court of Special Appeals of Maryland)

In a first for Maryland, the Appellate Court of Maryland, relying on persuasive authority from other jurisdictions, paved the way for the recognition of claims of shareholder oppression based upon the payment of “de facto” or “disguised” dividends. In 2000, Appellant, Edward Mekhaya, was hired by Eastland Food Corporation (the “Corporation”) and eventually rose to the position of Vice President of Operations. In 2008, Mekhaya received ownership interest in the Corporation in the form of 28% of its stock. In addition to holding the officer position, Mekhaya was a director of the corporation. In September 2017, a new president was elected by the board of directors over the objections of Mekhaya. In October 2018 Mekhaya was not re-elected to the board of directors, and a few days later his employment with the Corporation was terminated. He remained a 28% shareholder of the Corporation. In his lawsuit, filed in 2021, Mekhaya alleged shareholder oppression, i.e., that Corporation management, instead of declaring a dividend, awarded themselves large bonuses which were in fact “disguised” dividends, which had the effect of rendering Mekhaya’s block of shares worthless. At the trial level, the court granted summary judgment to the Corporation, finding that Mekhaya failed to state a claim for shareholder oppression. The appellate court relying in part on the concept of “de facto” or “disguised” dividends reversed the trial court noting that the question, rather, “is whether Mekhaya’s complaint, on its face, alleged facts sufficient to establish that his expectations as a shareholder were reasonable (when viewed through an objective lends) and that Appellees defeated substantially one or more of those expectations.”


Call one of the attorneys at Vanderpool, Frostick & Nishanian, P.C., or email and let us see if we can assist you.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

3
Jan
2023

Rethinking zoning

By Martin Crim, Esq.

Here’s an interview of author Nolan Gray about rethinking zoning. A couple quick take-aways:

  • “Cancel zoning” is an overstatement; Gray argues for looser zoning, primarily around residential density
  • Houston provides an example showing that you can still make a hash out of land use even without zoning

Martin Crim is a shareholder at Vanderpool, Frostick & Nishanian, and has been practicing law for over thirty years, primarily for cities, towns, and other local governments. If you have additional questions or concerns, contact Martin Crim at mcrim@vfnlaw.com or call us at 703-36-4738.


This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

3
Jan
2023

Banning Foreign Home Buyers

By Martin Crim, Esq.

At common law, foreigners couldn’t own real estate but most countries have loosened that restriction. New Zealand has a ban on foreign home buyers and Canada just adopted a two-year ban on most foreigners buying houses. A couple quick thoughts:

  • A $10,000 (Canadian) fine on conviction is not much of a deterrent.
  • I like the idea of taxing vacant houses but it would need robust enforcement to be effective.
  • An exemption for “recreational” property undercuts the rule’s effectiveness severely.
  • An anti-flipping tax is a bad idea because it deters rehabilitating unlivable houses.
  • An extra tax on foreign purchasers is quite reasonable and could produce revenue to put toward housing availability.

Martin Crim is a shareholder at Vanderpool, Frostick & Nishanian, and has been practicing law for over thirty years, primarily for cities, towns, and other local governments. If you have additional questions or concerns, contact Martin Crim at mcrim@vfnlaw.com or call us at 703-36-4738.


This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

19
Dec
2022

2022 Legal Elite

Vanderpool, Frostick & Nishanian, P.C. is honored and proud to announce that 11 of its attorneys have been selected by the Virginia Business Magazine as 2022 Legal Elite. Virginia Business Magazine recognizes each year the leading attorneys in Virginia by practice area. We congratulate our selected attorneys for their great achievement.

V. Rick Nishanian
V. Rick Nishanian
Kristina Keech Spitler
Kristina Keech Spitler
Martin Crim
Martin Crim
Michael R. Vanderpool
Michael R. Vanderpool
Randolph D. Frostick
Randolph D. Frostick
Lisa Shea
Robert Zelnick
Christopher Collins
Christopher Collins
Olaun Simmons
Olaun Simmons
Tyler Blaser, Associate
Tyler Blaser
Monica Munin, Associate
Monica Munin
8
Dec
2022

Why the U.S. Immigration System Should Make a New 245(i) Adjustment Program but with a Higher Fee

Written By Meghan M. Phillips, Esq.[1]

Currently under U.S. immigration law, if a noncitizen has entered the United States without inspection (EWI) or unlawfully, they are unable to adjust their status to that of a lawful permanent resident (green card holder) unless they qualify for adjustment under section 245(i) of the Immigration and Nationality Act (INA).  This section, “enables certain individuals who are present in the United States who would not normally qualify to apply for adjustment of status in the United States to obtain lawful permanent residence (get a Green Card) regardless of: (1) the manner they entered the United States; (2) Working in the United States without authorization; or (3) Failing to continuously maintain lawful status since entry.”[1] However, to qualify, they must prove they:

  1. Are the beneficiary of a qualified immigrant petition (Form I-130 or I-140) or application for labor certification (Form ETA-750) filed on or before April 30, 2001;
  2. Were physically present in the United States on Dec. 21, 2000, if they are the principal beneficiary and the petition was filed between Jan. 15, 1998, and April 30, 2001;
  3. Are currently the beneficiary of a qualifying immigrant petition (either the original Form I-130 or I-140 through which they are grandfathered or through a subsequently filed immigrant petition) or an application for labor certification;
  4. Are physically present in the United States at the time they file Form I-485 and Supplement A;
  5. Have a visa immediately available to them;
  6. Are admissible to the United States or eligible for a waiver of inadmissibility or other form of relief; and
  7. Warrant the favorable exercise of discretion.[2]

They must also pay a fee of 1000 dollars with this application.[3]

            As one can see, under the first and second requirements, adjustment under this provision is limited by two sunset dates; that is, a person has to have had an immigrant petition or labor certification that was filed on their behalf before April 30, 2001, and they must have also been physically present in the United States on December 21, 2000.  In other words, adjustment under this provision is extremely limited and only those who have “grandfathered” status qualify.

            So what can those who have entered without inspection or who have failed to maintain lawful presence in the United States do to become lawful permanent residents if they do not meet the 245(i) sunset date requirements? Currently, even immediate relatives of a U.S. citizen such as a spouse, son, or daughter cannot adjust status in the United States. Rather, they must file for a waiver to forgive their unlawful entry and presence and consular process, which means they must exit the United States and have an interview at a U.S. consulate in another country.

Current processing times and fees for a provisional unlawful presence waiver (one filed before leaving the United States for a consular interview) are 34 months and 715 dollars, while other waivers for grounds of inadmissibility (one that is filed if one has already left the United States, thus activating the unlawful presence bar to return) are 27.5 months and 930 dollars.[4] Additionally, consular processing also has several fees and can take several months or even years, depending on the consulate and security checks required. In short, there is nothing short or inexpensive about this process. Combine this with the uncertainty of having a relative or key employee stuck outside the country for an indefinite amount of time with no guarantee that the visa will be approved, this creates untold stress not only on the applicant but also American families and businesses.

The United States is experiencing a labor shortage, which is partially exacerbated by low immigration levels, and which is resulting in several negative effects including inflation, reduced output and lost opportunity costs for companies, adverse impacts on supply chains, and increased strain on key sectors like agriculture, the food industry, science, technology, engineering, mathematics, healthcare, transportation, ports, and warehouses.[5] The State Department, the United States Citizenship and Immigration Services (USCIS) under the Department of Homeland Security, and immigration courts under the Department of Justice, are experiencing enormous backlogs.[6] In 2020, USCIS also experience a severe budget shortfall, causing the agency to ask Congress to provide it 1.2 billion to avoid furloughing 15,000 of its 18,700 employees; it also proposed enormous fee hikes for applications such as naturalization. [7]  U.S. immigration laws need to change to reverse these trends, but immigration legislation has largely stalled in Congress and experts do not predict any significant changes to immigration policy after the recent November 2022 midterm elections.[1]

            Therefore, to address these issues, I propose that one major immigration law or policy change should be to re-introduce 245(i) adjustment without the sunset dates, but with the caveat that the fee for such an application should substantially increase from its current 1,000 dollar level to be perhaps as high as 5,000 dollars. Families and business-owners desperate to have greater certainty and avoid separation from their immigrant family members or employees would likely be willing to pay an increased fee to avoid the long wait times and the need for the immigrant to consular process outside the United States. 

The higher fee would serve to ameliorate the budget shortfalls and increase the immigration system’s financial ability to be better staffed so as to deal with its enormous backlogs. It would also serve as a greater penalty to waive or pardon the immigrant’s unlawful presence or entry, commensurate with the U.S.’s desire to disincentivize unlawful entry and presence, unlike the current 3 and 10-year bars to re-entry, which counterintuitively caused a significant increase in the undocumented population.[2] In fact, the National Immigration Forum estimated in 2021 that if Congress were to cancel or extend the 245(i) deadline, this would allow 2.3 million unauthorized immigrants to become eligible for adjustment of status.[3] This would help millions of ensure their family unity, ensure migrants have an incentive to become documented and comply with immigration law, and help businesses hire the labor and candidates they desperately want and need, all while improving and funding our backlogged and overloaded immigration system. Therefore, I urge politicians and policy-makers to consider reinstating or instituting a new 245(i) adjustment program.

At VFN Immigrants First, we have three licensed immigration attorneys who are admitted to practice both by state bars and EOIR. We would be happy to help you find the best legal strategy to meet your immigration goals and help you determine if the recession of Matter of Z-R-Z-C-, will allow you to travel with advance permission and if you are eligible to adjust your status to that of a lawful permanent resident now, or in the future.  

Please give us a call at 703-335-2009, visit our website, www.immigrantsfirst.com, email: mphillips@vfnlaw.com, or stop by our office at 9200 Church Street, Suite 203, in Manassas, Virginia, to learn more or make an appointment for a consultation.

 


[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool, Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and admitted to practice before the U.S. immigration courts (EOIR), the Eastern District of Virginia Court, and the Fourth Circuit Court of Appeals.

[2] United States Citizenship and Immigration Services (USCIS) Webpage, Green Card through INA 245(i) Adjustment, November 29, 2021, available at: https://www.uscis.gov/green-card/green-card-eligibility/green-card-through-ina-245i-adjustment.

[3] Id.; see also, INA § 245(i).

[4] Id.

[5] United States Citizenship and Immigration Services (USCIS) Webpage, Check Case Processing Times, available at: https://egov.uscis.gov/processing-times/; United States Citizenship and Immigration Services (USCIS) Webpage, I-601A, Application for Provisional Unlawful Presence Waiver, May 9, 2022, available at: https://www.uscis.gov/i-601a; United States Citizenship and Immigration Services (USCIS) Webpage, I-601, Application Waiver of Grounds of Inadmissibility, November 22, 2022, available at: https://www.uscis.gov/i-601.

[6] Arturo Casellanos-Canales, National Immigration Forum, America’s Labor Shortage: How Low Immigration Levels Accentuated the Problem and How Immigration Can Fix It, February 28, 2022, available at: https://immigrationforum.org/article/americas-labor-shortage-how-low-immigration-levels-accentuated-the-problem-and-how-immigration-can-fix-it/.

[7] Aline Barros, VOA, Analysts Don’t Expect Significant Changes in Immigration Policy After the Midterms, November 3, 2022, available at: https://www.voanews.com/a/analysts-don-t-expect-significant-changes-in-immigration-policy-after-the-midterms/6819069.html.

[8] Sarah Piece and Doris Meissner, Migration Policy Institute, USCIS Budget Implosion Owes to Far More than the Pandemic, June 2020, available at: https://www.migrationpolicy.org/news/uscis-severe-budget-shortfall.


This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

23
Nov
2022

Inconsistent Remote Work Policies Create Legal Troubles for EPA: Tips & Best Practices for Employers?

Written by: Monica Munin, Esq.

On October 20th, the American Federation of Government Employees Local 704 (“Local 704” or “the Union”) filed a lawsuit on behalf of Environmental Protection Agency (“EPA”) employees located in Region 5, alleging that the EPA is intentionally withholding records subject to the Freedom of Information Act (“FOIA”) for the purposes of delaying the union’s investigation into discrepancies in the application of the agency’s remote work policy across different regions of the country.  Region 5, which includes Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin, is the largest of the EPA’s ten (10) regions.  According to the Union, Region 5 employees “faced unfair denials of their requests for remote work compared [to other regions].”

The lawsuit is just one example of how inconsistent remote work policies can create problems for employers as employees and their managers acclimate to their “new normal.” Generally, employers are not required to offer employees the option to work remotely, with the main exception being requested for accommodation under the Americans with Disabilities Act (ADA). However, policies viewed as inconsistent or unfair can create other problems for employers and dampen employee morale during a time when it is increasingly difficult to find and retain quality employees. To avoid grievances and allegations of discrimination or disparate treatment, I would generally recommend that employers consider creating and including a comprehensive remote work policy that includes, at a minimum, the following:

  • The name and contact information of the person responsible for processing and evaluating a request to work remotely.
  • A clear definition of what is a general request to work remotely as well as an explanation of how a request to work from home to accommodate a disability differs from a general request to work remotely (as a reminder requests for an accommodation under the ADA are subject to a different analysis and process as the federal law requires employers to engage in an interactive dialogue with the employee that focuses on the employee’s limitations and essential job functions, employers have more discretion with respect to requests for remote work that are not based upon a need to accommodate a disability).
  • What positions are eligible for remote work?
  • What criteria the Company will use when evaluating a remote work request?
  • An explanation of what the Company expects from remote workers as well as clear guidelines for supervision and performance monitoring.
  • A disclaimer that the Company retains the right to change its policy or decision based upon the needs of the business and/or the employee’s performance while working remotely.
  • A summary of how remote employees will be included in Company culture and decision-making.

The pandemic brought about a massive change in how and where employees do their work, a change that is likely here to stay for the long haul. While we are just beginning to see the legal ramifications of this change, employers can safeguard against potential discrimination claims or grievances/ general employee dissatisfaction by investing the time and resources necessary to create a clear and comprehensive remote work policy. Questions about your telework policy? Need guidance regarding this or other employee handbook topics? Contact Monica Munin, Esq. at mmunin@vfnlaw.com.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

9
Nov
2022

Criminal Justice Services Board (CJSB)

VF&N Shareholder Bradley Marshall was recently appointed to the Criminal Justice Services Board (CJSB) by Gov. Glenn Youngkin.  The 32-member Board is the Department of Criminal Justice Services policy board. It has representation from all aspects of the criminal justice system on both state and local levels of government, as well as representatives of the private security industry, the public-at-large and the General Assembly.  The Board is the approving authority for the regulations the Department promulgates in accord with the Administrative Process Act and approves most of the grants the Department awards to localities, state agencies, and private non-profit organizations.  Brad is humbled by the trust placed in him by the Governor and looks forward to serving the people of the Commonwealth of Virginia in this new capacity.  The Governor’s press release is below.

Governor Glenn Youngkin | Governor.Virginia.gov


This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer