Land Use and Zoning Archives - Vanderpool, Frostick & Nishanian, PC

1

Sep

2022

Prince William County’s Pathway to the 2040 Comprehensive Plan: One Step Closer

1.09.2022 Yolanda Burnett Business Attorney, Business Law, Business lawyers in Virginia, Manassas Business Attorney, Monica Munin, Virginia Business Legal Elite

Written by: Olaun Simmons, Esq.

The Prince William County Board of Supervisors have been working diligently to finalize the 2040 Comprehensive Plan. When it is adopted by the Board of County Supervisors, the 2040 Comprehensive Plan will help guide future land use and development for properties in Prince William County.

The most recent draft of the Land Use Chapter of the 2040 Comprehensive Plan was issued in August 2022. The goal of the Land Use Chapter is to provide an official statement of the County’s vision for land use and to provide the aspirational goals for the County’s future development and growth.

Additionally, the “Pathway to 2040 Proposed Long-Range Use Interactive Map” provides information regarding the proposed long-range use designations for properties within the County including primary and secondary uses, compatible zoning districts, and density designations.

If you have questions related to the draft 2040 Comprehensive Plan and the ways in which it may affect your rezoning application, special use permit application, or the desired use of your property, please contact me at (703) 369-4738 or osimmons@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

17

Aug

2022

The Mixed Use District – A Flexible Approach to Use and Density

17.08.2022 Yolanda Burnett Business Attorney, Business Law, Business lawyers in Virginia, Manassas Business Attorney, Monica Munin, Virginia Business Legal Elite

Written by: Olaun Simmons, Esq.

In 2021, Prince William County adopted a new zoning district entitled “Mixed Use District (MXD).” The new Mixed Use District seeks to provide a thoughtful approach to development because it allows for flexible land development, promotes
transit-oriented development, and encourages a mix of residential and commercial uses in a single zoning designation. Under the MXD umbrella, there are three tailored mixed-use zoning designations that provide specific details and guidance regarding allowable uses and density.

Mixed Use District-Neighborhood (T-2)

The Mixed Use District-Neighborhood (MXD-N) is intended for smaller-scale mixed-use developments that are surrounded by lower-density residential areas, as well as in neighborhood corridors, or at the edges of town centers. The MXD-N allows for by-right uses such as single-family detached homes, craft breweries, and coffee shops; secondary uses such as child-care facilities and farmer’s markets, and special uses such as kennels and indoor shooting ranges. In terms of density, the MXD-N has a Transect 2 designation which allows for a residential density of 0 – 4 du/acre and non-residential density of 0 – 0.23 FAR.

Mixed Use District-Community Zoning District (T-3 and T-4)

The Mixed Use District-Community Zoning District (MXD-C) is intended to encourage a diversification of uses, including residential, commercial, and civic uses. The MXD-C is intended for a variety of sites and in smaller mixed-use areas that are well served by transit. The MXD-C allows for by-right uses such as distilleries, hotels, and religious institutions; secondary uses such as attached single-family dwellings and farmer’s markets; and special uses such as bed and breakfasts, retail stores, and restaurants. In terms of density, the MXD-C allow for more density than the MXD-N. The MXD-C has two transect designations: T-3 and T-4. Transect 3 allows for a residential density of 4 – 12 du/acre and non-residential density of up to 0.57 FAR, and Transect 4 allows for a residential density of 8 – 24 du/acre and non-residential density of up to 0.1.38 FAR.

Mixed Use District – Urban Zoning District (T-5 and T-6)

Finally, the Mixed Use District – Urban Zoning District (MXD-U) is intended to encourage the development or redevelopment of mixed-use centers that combine new or existing retail development with a variety of housing, offices, studios, live-work space, civic buildings, and other complementary uses arranged in a cohesive, compact, and walkable environment. The MXD-U zone must be located along existing or planned high-capacity multi-modal transportation corridors. The MXD-U allows for by-right uses such as assisted living facilities, multi-family dwellings, and hotels; special uses such as attached single-family dwellings on lots in excess of one acre; and special uses such as restaurants and self-storage centers. In terms of the allowable density, the MXD-U allows for the most density. The MXD-U has two transect designations: T-5 and T-6. Transect 5 allows for a residential density of 20 – 50 du/acre and non-residential density of up to 2.30 FAR, and Transect 6 allows for a residential density of 50 -100 du/acre and non-residential density of up to 3.0 FAR.

The new MXD zoning designation is designed to provide developers with the flexibility needed to obtain the desired mix of commercial and residential uses and density on the site. The flexibility provided by the MXD will also be useful for developers who are seeking to revitalize aging properties within Prince William County.

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

May

2022

Community Meeting with American Legion Post 114

25.05.2022 Yolanda Burnett

Written by: Olaun Simmons

VF&N’s Olaun Simmons attended a community meeting with American Legion Post 114 and People, Inc. to discuss the revitalization of the historic American Legion Post building and the development of duplexes on Prince William Street in Manassas, Virginia.

If you have any questions on how VF&N can assist you, please feel free to reach out by way of phone or email Olaun Simmons.

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

10

May

2022

Billboard Regulation Survives at the US Supreme Court

10.05.2022 Yolanda Burnett

Written By Martin Crim, Esq.

I think that I shall never see
a billboard lovely as a tree.
Perhaps, unless the billboards fall,
I’ll never see a tree at all.
—Ogden Nash

In the 2015 case of Reed v. Town of Gilbert, the U.S. Supreme Court announced a new rule that restricted local government regulation of signs. That case broadly defined “content-based” regulation in a way that caused alarm in local government circles because it threatened to render unconstitutional many zoning ordinances that addressed signs. One of the fears that it generated was that we might no longer be able to have one set of rules for signs that advertise products and services sold on-site and another set for signs that advertise products and services that are sold elsewhere (a/k/a on-premises v. off-premises signs).

Most billboards are off-premises signs, and the billboard industry aggressively protects its interests in those signs. The Reed opinion gave them an opportunity to increase the number and value of their stock of billboards if they could turn on-premises signs into off-premises signs by getting courts to strike down local ordinances that discriminated against off-premises signs. Federal and state beautification laws dating back to the 1960’s and 1970’s have curbed the ability to put up new billboards, so most billboards you see are “grandfathered” under zoning law – allowed to remain as long as they do not expand in size or upgrade their technology.

Since 2015, billboard companies have filed several challenges around the nation against ordinances that used the on-premises/off-premises distinction, arguing from Reed that an ordinance was unconstitutional if you have to read the sign to apply the ordinance – even if you need just a cursory examination. This became known as the “pillar of salt” theory, after the Biblical story that Lot’s wife got turned into a pillar of salt as punishment for looking back despite being commanded not to look.

Although Justice Alito’s concurring opinion in Reed said that on-premises/off-premises distinctions were still permitted, the failure of the majority opinion to agree with him cast doubt on whether a majority of the Supreme Court would agree. The lack of clarity in the Reed majority opinion left room for the “pillar of salt” theory to persuade some judges. Meanwhile, tens of thousands of local governments had sign ordinances that distinguished between on-premises and off-premises signs.

On April 21, 2022, the Supreme Court finally answered the on-premises/off-premises question, in a case (Austin v. Reagan National Advertising of Austin) brought by two advertising companies who wanted to digitize some grandfathered billboards. Austin’s sign code prohibited that, so the advertising companies sued. The case made its way up the Federal appellate court system to the top, where Justice Sotomayor delivered the opinion of the Court, rejecting the “pillar of salt” rule as “too extreme an interpretation.”

Instead, the Supreme Court has now allowed sign regulations to distinguish between on-premises and off-premises signs as long as the regulations meet so-called “intermediate scrutiny” (i.e., requiring more justification than the “rational basis” test but not as much as the “strict scrutiny” test). For that reason, the Supreme Court remanded the Austin case for the lower courts to determine whether the Austin sign code had an “impermissible purpose or justification” and whether it was “narrowly tailored to serve a significant governmental interest.”

When I worked on the model sign ordinance for the Local Government Attorneys of Virginia in 2016, we retained the on-premises/off-premises distinction, generally prohibiting all new off-premises signs. (Grandfathered signs have to be allowed as a matter of property law.) We held our breath at the time, and now we can breathe a sigh of relief.

If you have a question about whether a given sign ordinance is still constitutional – either in the abstract or in relation to an existing or proposed sign – I’d be pleased to consult with you and, if appropriate, to represent you in relation to that question.

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[/vc_column_text][/vc_column][/vc_row]

17

Dec

2021

City of Manassas Approves Special Use Permit for Building Expansion

17.12.2021 Yolanda Burnett

Written by: Olaun Simmons

City of Manassas Approves Special Use Permit for Building Expansion

Olaun Simmons of Vanderpool, Frostick & Nishanian, P.C. represented the Prince William Islamic Center in their pursuit of a special use permit to expand their place of worship located on Mathis Avenue. The PWIC, a well-established religious institution in the community for 15 years, has a growing congregation that needs additional space for worship services. The PWIC designed the expansion to include contemporary, high-quality architectural finishes and landscaping facing Mathis Avenue that will help to modernize the look of the Mathis Avenue corridor. On November 3, 2021, the City’s Planning Commission voted unanimously to recommend approval of the special use permit application. On December 13, the City Council voted unanimously to approve PWIC’s special use permit application for the expansion. Olaun was instrumental in helping PWIC successfully navigate the procedural maze often associated with zoning applications.

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

10

Dec

2021

Freedom of Information Act – How Can We Best Serve the Public?

10.12.2021 Yolanda Burnett

Written by: Martin Crim

Freedom of Information Act – How Can We Best Serve the Public?

Virginia first adopted a Freedom of Information Act, or FOIA, in the 1960s. Its purpose is to ensure that the people of the Commonwealth have ready access to public records in the custody of a public body or its officers and employees and that the people have free entry to meetings of public bodies wherein the business of the people is being conducted.

Every year, the General Assembly considers bills to amend FOIA. How should citizens and the General Assembly evaluate those bills? I recommend that we evaluate them in light of the purpose and principles of FOIA.

FOIA ensures access to public records and meetings of public bodies because such access is helpful to voters in selecting candidates and holding public officials accountable. We support democracy by making public records and meetings available for citizens. Note that assisting private parties with claims against the government is not a purpose or goal of FOIA, but in actual practice, those parties make up a large percentage of persons who make FOIA records requests.

Policy is hard, in part because there are always policy considerations weighing against any option you want to look at. What does something cost? Who has to pay the cost? What are the opportunity costs (that is, what will not happen that you want to have happen)?

With FOIA records requests, the costs fall on state and local governments to provide the staff time and materials for copying. Luckily, most citizens are OK with receiving electronic copies, but there is still a time component in searching for documents. In addition, in many cases, someone has to review the content of the documents to determine if they are exempt from FOIA.

The government can charge the person making the request for the “actual cost” it incurs in providing the requested documents. However, the way that the law and the FOIA Advisory Council have defined “actual cost” is less than the actual costs, so taxpayers pick up part of the charge for FOIA records requests. The opportunity costs are harder to gauge, but a large records request can bring a government to a standstill by diverting all available staff to fulfilling the records requests. If the person making the document request thinks that the price is excessive, they can ask a judge to review it, and the judge can reduce the charge if it is actually excessive.

Members of the General Assembly do not feel any responsibility for the costs of FOIA records requests. They don’t see the costs, they don’t have to raise taxes to cover the costs, they don’t hear from constituents about the costs, and their support staff are not diverted from working for them by FOIA records requests. They, therefore, have no frame of reference for the strategic or vindictive use of FOIA records requests.

In litigation, parties will use a FOIA records request to bypass civil discovery and, if they have deep enough pockets, to bring a government agency to a standstill due to the size of the records requests. There are also people who are irrationally hostile toward the government due to personal grievances or ideology and who abuse FOIA records requests to harass and obstruct the operation of government.

How should the misuse of FOIA records requests inform policy decisions? If we return to first principles, we should look at how the release of information would serve the public in understanding how the government works and holding government officials accountable. Reducing the cost of FOIA abuse does not, I submit, serve either of those goals.

FOIA is a good thing, but it is bad policy to change FOIA to make its abuse easier. Your government works for you, and anything that impedes the work of government harms the public interest. Please take an interest in this year’s FOIA bills and ask whether they serve the public interest.

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

Dec

2021

Phase I Environmental Site Assessment – updated standard requirements

9.12.2021 Yolanda Burnett

Written by: Guy Jeffress

Phase I Environmental Site Assessment – updated standard requirements

On November 1, 2021, ASTM International (formerly the American Society for Testing and Materials) approved revisions to the ASTM 1527 standard, more commonly known as a Phase I Environmental Site Assessment Report. Once the new standard is adopted by the Environmental Protection Agency (EPA), purchasers of real estate will need to comply with the updated requirements.

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a property owner risks strict liability for environmental contamination caused by prior owners. However, CERCLA provides defenses for a current owner if the current owner satisfies certain requirements, i.e., the All Appropriate Inquiries (AAI) requirement. To qualify for an AAI defense, a prospective owner, prior to the purchase, must make reasonable inquiries to determine if a property has existing contamination, this includes conducting a Phase I environmental site assessment undertaken in accordance with the ASTM 1527 standard.

Potential purchasers of commercial real property should ensure that environmental professionals are conducting Phase I Reports according to the required standards, i.e., ASTM 1527-13 or ASTM 1527-21. Likewise, lenders funding acquisition loans should keep an eye open for the upcoming change. Adoption of the new standard, ASTM 1527-21, by the EPA is expected to occur in December 2021. There should be a “phase-out” or transition period during which both standards may be allowed. Note that as a result of the new standard Phase I reports may become more costly and time-consuming as environmental professionals get up to speed on the new requirements.

Additional information regarding the revised standard can be found on the ASTM website: https://newsroom.astm.org/astm-international-revises-standard-practice-environmental-site-assessments

Contact the attorneys at Vanderpool, Frostick & Nishanian, P.C., if you have any questions regarding the purchase and/or sale of commercial real estate.

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

6

Oct

2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

6.10.2021 Yolanda Burnett

Marijuana became legal in Virginia for the first time in July 2021.

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.

What is now Legal?

Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
“Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

ensure that no plant is visible from the public;
take precautions to prevent unauthorized access by persons younger than 21 years of age; and
attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C.

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

29

Sep

2021

Part 4: The Production and Sales of Cannabis in Virginia

29.09.2021 Yolanda Burnett

The Production and Sales of Cannabis in Virginia

This article provides a high-level overview of the new legal landscape in Virginia related to the production and sale of cannabis and the opportunities out there for entrepreneurs.

For perspective, the Virginia General Assembly has only approved four (4) companies to legally process pharmaceutical cannabis for medical use, with one additional permit authorized, but unissued. The cultivation of hemp is currently allowed under a regulated process. And as of July 1, 2021, personal consumption and home cultivation of marijuana have been decriminalized to a large extent on the state level here in Virginia. Notably, the use, sale, and possession of cannabis over 0.3% THC in the United States remain illegal under federal law, despite laws in many states permitting it under various circumstances.

While all of this represents progress, in the overall push for legalization, we are still years away from state legalization of the production and sale of retail cannabis. For those interested in participating in this budding industry, keep in mind that you will need a license issued by the Cannabis Control Authority, which many anticipate will be much more challenging to obtain than an alcohol license.

The specific requirements for those license applications will not be disclosed publicly until July 1, 2022, with the first applications expected to be accepted July 2023 and retail sales expected to finally become legal in 2024. So while two years may seem like a long way away, if you are interested in being competitive in the license application process, you need to start positioning yourself now.

The state is likely to issue less than 1,000 licenses, which will be split between certain levels of the cannabis industry. It is anticipated that there will be 450 licenses available for cultivators, 60 for product manufacturers, 25 for wholesalers, and 400 for retailers. The application process is expected to favor applicants who demonstrate social equity, public health, and public safety priorities.

While this certainly provides some reason for optimism for those hoping to play a part in the industry, it’s important to remember that the regulatory framework and path towards legalization does not become effective until the future General Assembly and Governor approve the legislation in 2022. That said, if you are serious about getting a permit and being on the front end of the marijuana industry boom in Virginia, it’s important to surround yourself with professionals that can make your vision a reality. One of the old rules of thumb for aspiring entrepreneurs is to surround yourself with a decent lawyer and a good accountant.

VFN is one of the most highly regarded law firms here in Northern Virginia, with seasoned and well-connected attorneys who can help you establish your position in this state’s cannabis industry. Our services will be invaluable to clients, who will need to

Establish a legal entity and presence here in the Commonwealth to become a qualified applicant;
Obtain financing through investor relationships and/or financial institutions to secure required capital to be considered for licensure;
Purchase the real estate and secure proper zoning and approvals required for your business
Create solid commercial sale/purchase contracts to ensure payment and minimize risk exposure; and
Establish employment procedures to ensure your business runs smoothly.

I have already been advising clients on how to prepare themselves for the permit application process for the past few years, which has been an exciting and engaging experience for me. I am excited to see what the future holds in this new industry and to be working with clients on the front lines. If you need me or want more information, please feel free to give me a call at 703.479.3181, reach out to me by email at TBlaser@VFNLaw.com, or visit my attorney page at https://vfnlawlive.wpengine.com/portfolio/tyler-j-blaser/.

24

Sep

2021

Threat to Broadband Expansion

24.09.2021 Yolanda Burnett

Threat to Broadband Expansion

In Grano v. Rappahannock Electric Cooperative, Judge Moon of the Federal District Court made preliminary rulings about a new Virginia law that allows electric utilities to put broadband cables in existing electrical easements.

The facts are these: A new state law in 2020 granted electric utilities like Rappahannock Electric Cooperative the power to install broadband cables in existing electric line easements, regardless of what the easement deed says. The same law limited the kind of compensation that property owners can receive if that happened. Rappahannock proposed to buy the right to install broadband on the property of John and Cynthia Grano, but couldn’t agree on terms with them. Rappahannock never installed any broadband on the Granos’ property but asserted that it could if it wished.

Judge Moon’s opinion found that the Granos’ claims said many of the right things to move forward in Federal court. For example, Judge Moon decided that the Granos had properly alleged they suffered actual harm when the new law took effect in 2020 and that the new law did not provide an adequate remedy for any harm that they suffered. There is little analysis in the opinion about why the new law – which allows property owners to file a claim for trespass – is inadequate, but the opinion points to the fact that the new law limits the amount of money that property owners can get if they win their case. (Lots of other laws limit the amount of money courts can award for different kinds of cases; Virginia has caps on medical malpractice claims and punitive damages, for instance).

Ultimately, Judge Moon ruled that two of the Granos’ three claims had to be dismissed because Rappahannock did not take any action to exercise its rights under the new law. One peculiar feature of Judge Moon’s ruling is that it says that the third claim should have been dismissed as well, but Judge Moon did not dismiss that claim. The third claim was for unconstitutional impairment of contracts, and footnote 8 points out that such a claim cannot be brought under the federal statute that the Granos used as a basis for their suit. Rappahannock asked the court to dismiss the third claim, but for a different reason.

The case continues to move forward. The Virginia Attorney General has filed notice of his intent to intervene as a party in order to defend the law.

Please contact Martin Crim, mcrim@vfnlaw.com or 703-618-3205 should you have any questions or need assistance. [/vc_column_text][/vc_column][/vc_row]

Medical Cannabis

Adult-Use Cannabis Commercial Sales

Home Cultivation

The Production and Sales of Cannabis in Virginia

Threat to Broadband Expansion

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