(703) 369-4738

26
Oct
2022

We’re Hiring!

Vanderpool, Frostick & Nishanian, P.C., an AV-rated firm located in Manassas, Virginia, is recruiting for an associate in its growing local government practice. This is a new position to serve cities, towns, Industrial Development Authorities, and other local government entities. Practice areas include zoning, economic development, property code enforcement, procurement, construction law, eminent domain, FOIA, employment law, social services, prosecution, and general civil litigation.

To read more, please visit careers!

To apply, please contact Kelly Gates at kgates@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
Oct
2022

The Joy of Bylaws

By Martin Crim, Esq.

Do your organization’s bylaws leave you joyless? Do they lead to arguments that waste time and fray tempers? Do they leave unanswered questions or fail to address recurring situations? Or maybe you’ve been intimidated by your bylaws and wonder how to understand them.

Robert’s Rules of Order, Newly Revised, is the gold standard for running a meeting, but it is primarily geared toward large assemblies. However, the new 12th edition has specific rules for small groups, which every small group should consider adopting. The 12th edition also contains a draft set of bylaws that at least provide a starting point for drafting.

The first few years I worked with Robert’s Rules and organizational bylaws, I struggled to make sense of them, but once you understand the underlying principles, they make sense: Regard for the rights of the majority, the minority, individual members, absentees, and all of these together.

Although no set of bylaws can address every potential problem, there are some recurring issues that your bylaws should address. Here’s a checklist of some questions that I use when drafting or reviewing bylaws:

  • What’s the source of the body’s authority?
  • Who gets to interpret the bylaws, and how?
  • Who prepares the agenda, and how can the body amend it?
  • What’s the requirement for a quorum? What if there are vacancies?
  • How and when are officers elected?
  • How does the organization delegate responsibility to individual officers?
  • If it’s a small body, how do you want to modify Robert’s Rules of Order (or one of its alternatives) to streamline the process?
  • Do you have a method for rescheduling meetings?
  • Do you allow remote participation? If so, under what circumstances?
  • Who is responsible for keeping minutes and other records?

It is helpful to know the history and culture of a body when drafting or revising bylaws. Some bodies need to put time limits on individual speakers, for example, but most do not. Some bodies need to address the seating arrangements of the members. Religious organizations, clubs, elected bodies, and political parties have different needs and priorities.

When first sitting down to read a set of bylaws, you do not have to read it straight through like a novel. Instead, you can look at the headings, and read carefully only the parts that are causing you problems. For instance, if you think the chair is stifling discussion, read the parts about how a matter is placed on the agenda, how to be recognized by the chair, how often each member gets to speak, and what to do if the chair fails to call upon you when you’re entitled to address the group. If you are the chair and a member is disrupting meetings on the regular, review the parts that address debate, the authority of the chair to control the meeting, and how to call out a disruptive member. That may lead you to Robert’s Rules or whatever alternative rules your body has adopted for situations not covered by the bylaws.

If a question comes up about the legality of a group action, then that’s not a question that can be answered just by reference to the bylaws. That’s a question for legal counsel. Knowing where that line falls can be difficult to determine.

If you or your organization are having trouble with bylaws, you should consult with an experienced parliamentarian. If the problem is of a legal nature, the parliamentarian you consult should be an attorney with knowledge of the field.

Based on my experience with different kinds of organizations (elected, appointed, and voluntary), I’m comfortable with bylaw drafting, amendment, and interpretation. Please reach out if you think I can help your organization run more smoothly. We may even discover some joy along the way.

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

21
Jun
2022

The Right to Exclude!

By Martin Crim, Esq.

Should hunters be able to enter other people’s land to retrieve their dogs?

Should police be able to enter land and peek through your windows to search for drugs?

Should relatives be able to visit the graves of their family members on private land?

What if the land is posted “no trespassing”?

Few people would complain if firefighters or EMT’s responded to a genuine emergency on their property, and it’s hard to imagine a judge saying that they commit a civil or criminal wrong by coming onto your property to provide emergency help.  This is true even if you didn’t give them your approval. Your approval is implied in a situation where public or private necessity outweighs the practicality of seeking permission to enter your property ahead of time.

But what is there is no emergency? What if you look out your kitchen window and see a stranger standing there on your property? You might, understandably, be alarmed. In this situation, you might assume that the law will back you up if you tell the stranger to leave. But in some circumstances, the law won’t back you up. So, what happens then? Let’s examine some circumstances where the right to exclude may not apply.

First, let us consider a situation of a property owner who wants a particular person to stay off their property. The property owner has the option to issue a “no trespassing letter” to that person, even if the property is normally open to the public, like a school or church. Local governments have a role in enforcing such letters, and in order to do so need to know things like “who has the authority to issue the letter” and “what if the person needs to enter the property for a valid purpose like voting or a parent-teacher conference”? For example, at my church, we have a policy saying exactly who has the authority to exclude someone from the building, to avoid having a situation where it’s unclear who is in charge.

A related issue comes up when a local government tries to protect homeowners’ right to exclude people. In that situation, it becomes a difficult task to specify who is permitted to approach your front door without your approval – and local governments have run afoul of the U.S. Constitution by providing a list of exceptions that allowed everyone but religious missionaries to do so.

Now, what if a homeowner wants to enforce a prohibition against certain visitors? In that case, homeowners have the option to post signs that prohibit certain classes of people – door-to-door salespeople, political canvassers, or whoever.  But what consequences can a homeowner impose upon someone who violates this prohibition? If the trespasser harmed the homeowners in some way, maybe a court would let them collect money from the trespasser. Without some tangible harm, the legal remedy becomes less clear. But what are rights without enforcement mechanisms?

Next, let’s consider a scenario where a loved one’s grave is located on private property. A 1993 Virginia law says that relatives of people buried in a cemetery, along with people who own burial plots there and genealogists, can enter and cross private property to reach the cemetery. There are, limitations, of course. Such visitors have to give notice, limit their activities there, and act appropriately, but the private property owner where the cemetery is located has lost the ability to say, “keep out.” They’ve lost the right to exclude, at least in part.

Next, consider a warrantless police search. US Supreme Court precedents say that police can enter “open fields” even if there are signs warning against entry and fences to keep people out. Under these circumstances, the police can also search your property using aircraft within “navigable airspace,” which means that the government took your right to exclusive use of the airspace over your property and used it to reduce the scope of your right to privacy.

Then we come to the hunting dogs. There’s a case pending in the courts right now that challenges Virginia’s law giving certain hunters the right to retrieve their dogs from other people’s lands. The plaintiffs are property owners who claim that they have been damaged by these dogs running loose on their property. The pending lawsuit builds off a US Supreme Court case that said a company could exclude union activity on its property.

Of possible relevance to the hunting dog case is the portion of the Virginia Constitution that says the people have a right to hunt, fish, and harvest game, subject to laws passed by the General Assembly. The Virginia Constitution also says that the right to private property is “fundamental,” which presumably means that it carries heavier weight than ordinary rights. Those competing rights collide with each other when hunters want to retrieve their dogs.

In some countries, there is a “right to roam,” which protects customary rights to travel, particularly in forests and coastal lands. In the US, a similar right protects “navigable waterways,” which allows people to use bodies of water that are “susceptible for use, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce.” That’s subject to a lot of interpretation – and potential abuse.

In law school, students read a case about someone sailing on a lake who ties up at a pier during a storm, even though told not to do so. The principle being taught there is the doctrine of necessity, which forms a defense against the claim that the sailors were trespassing. There is a fundamental moral principle that the right to exclude people from your property has to yield to their right to remain alive in an emergency. But that raises other questions, such as “what constitutes an emergency?”

As that brief survey shows, the right to exclude is an important aspect of the right to property, but like most rights, it is not absolute. Legislators and courts will continue to have to balance competing rights. Businesses, property owners, local governments, and others can’t rely on basic principles like the “right to exclude” because there are often competing principles that affect the legal rights in issue.

If you have a property rights problem, you should consult an attorney to learn your rights and how you might enforce those rights. You should also be cautious dealing with that stranger standing on your property and don’t assume that your property rights are the only thing the law cares about. I have been practicing in this area of the law for 30 years and encourage you to reach out if you have any questions regarding your right to exclude or about what circumstance may allow someone to enter your property without your consent.

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

10
May
2022

Billboard Regulation Survives at the US Supreme Court

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]

16
Feb
2022

Why Do Preambles Matter?

By Martin Crim, Esq.

If a legislative bill has no preamble, readers are left guessing at what problem the drafter is trying to solve, if any. If the preamble identifies the problem to be solved, then readers can evaluate whether the proposed solution is effective, proportional, and practical.

Most Americans (and many others around the world) are familiar with the preamble to the U.S. Declaration of Independence:

In Congress, July 4, 1776: The unanimous Declaration of the thirteen united States of America, When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another …

This tells you who (thirteen states), what (declaration of independence), when (July 4, 1776), and most especially why (it has become necessary to dissolve the existing political bands). It sets up the self-evident truths and the list of complaints against George III that follow.

The preamble to the Declaration of Independence helps you understand the rest of the document and (along with a strong “therefore” paragraph at the end) turns it from a treatise on the right of self-determination and why George III was a bad king into a founding political document that transformed the world.

Because of its preamble, readers of the Declaration of Independence immediately understood what the Declaration was setting out to tell them: The reasons why the thirteen states were assuming a separate and equal station among the powers of the earth. Readers could then evaluate whether altering or abolishing the current form of government would be an effective solution to the problem. They could evaluate whether the “long train of abuses and usurpations” were so awful that no other step short of rebellion was strong enough to address them. They could debate whether declaring the thirteen states “Absolved from all Allegiance to the British Crown” was practical.

In the same way, a preamble to a legislative bill informs the reader as to the reasons for its existence. What is it trying to accomplish? Why is it needed? Then we can move on to practical questions: Is it likely to work? Is the proposed solution a good fit for the problem? And will it create new problems, perhaps worse than the original problem?

Dear reader, I therefore ask you to read the preamble when there is one, and to ask, if there isn’t one, “why not?” Then you can evaluate the proposed legislation on its merits, looking for the likely results – both intended and unintended – of the bill.

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]

31
Mar
2021

Town of Quantico: Chesapeake Bay Preservation

Olaun A. Simmons, as legal counsel for the Town of Quantico, Virginia, recently completed a lengthy and extensive review and revision of the Town of Quantico’s Chesapeake Bay Preservation Ordinance and Comprehensive Plan in order to achieve compliance with Virginia’s Chesapeake Bay Preservation Act.

As a result of Mr. Simmons’s work and diligence, on March 30, 2021 the Virginia Department of Environmental Quality determined that the Town of Quantico’s Chesapeake Bay Preservation Act program is in compliance with the Chesapeake  Bay Preservation Act pursuant to §§ 62.1-44.15:69 and 62.1-44.15:71 and the Chesapeake Bay Preservation Area Designation and Management Regulations 9VAC25-830-260.

1
Dec
2020

2020 Virginia Business Legal Elite

Vanderpool, Frostick & Nishanian, P.C. is proud to announce that three of its attorneys have been recognized by the Virginia Business Magazine as being among Virginia’s “Legal Elite” within their various practice categories. We are extremely honored to celebrate their continued success and exceptional work!

19
Jun
2020

Marijuana, Arrests, Charges, and Convictions: A New Law Creates Changes For Employers.

**Part Two of a Four-Part Series: Click Here for Full Series**

By Kristina Keech Spitler, Esq. and Brendan F. Cassidy, Esq.  Vanderpool, Frostick & Nishanian, P.C.

In Part 2, we will address a new law that prohibits employers from inquiring into possession of marijuana for employee applicants, and a law that restricts state agencies and localities when inquiring about arrests, charges, or convictions for employee applicants.

Due to the enactment of these new laws in Virginia, businesses will need to understand what the laws require, update their employment applications, and educate and train their supervisors/managers accordingly.

State Agencies and Localities Prohibited from Inquiring about Arrests, Charges, or Convictions from Employment Applicants.

A new law prohibits Virginia state agencies and localities from inquiring whether a prospective employee has ever been arrested, charged, or convicted of a crime until the staff interview stage of the application process. During or after the staff interview stage of the employment application process, a Virginia state agency and locality may inquire whether an employee has been arrested, charged, or convicted of a crime – but not before.     

However, the new law does not require a state agency or locality to wait until the staff interview stage under the following circumstances: positions designated as sensitive; law enforcement agencies; state agencies expressly permitted to inquire into an individual’s criminal arrests or charges; positions for employment by the local school board; positions responsible for the health, safety, and welfare of citizens or critical infrastructure; and positions with access to federal tax information in approved IRS agreements.

In response to the new law, Virginia state agencies and localities should remove from employment applications questions that ask about a prospective employee’s arrests, charges, or convictions. In addition, state agencies and localities should train employees not to ask applicants about arrests, charges, or convictions until the staff interview stage of the application process.

Prohibition Against Inquiring Into Possession of Marijuana for Employee Applicants

Private Employers

A new law provides that Virginia employers are prohibited from requiring employment applicants to disclose information concerning any arrest, criminal charge, or conviction for unlawful marijuana possession in any application, interview, or otherwise.

Public Employers

This new law also prohibits state and local government agencies, officials, and employees from requesting from applicants for governmental service, information regarding marijuana possession arrests, charges, or convictions.  Unlike the law discussed above – which prohibits state agencies and localities from inquiring into general arrests, charge, or convictions until the staff interview stage – state and local government agencies cannot inquire about marijuana possession arrests, charges, or convictions at any stage of the application process.

However, the new law does permit state agencies to use information from an arrest, charge or conviction that is open for public inspection, for purposes such as:

  1. Screening for full-time or part-time employment with the State Police or a police department or sheriff’s office that is a part of or administered by the Commonwealth or any political subdivision;
  2. Screening persons who apply to be a volunteer with or an employee of an emergency medical services agency;
  3. Screening for full-time or part-time employment with the Department of Forensic Science; or
  4. By the Department of Motor Vehicles for the purpose of complying with the regulations of the Federal Motor Carrier Safety Administration.

Penalties for Public and Private Employers

Employers should take this new law seriously since a violation can result in criminal prosecution for individuals who violate the law. A person who willfully violates this law is guilty of a Class 1 misdemeanor for each violation.

If an employer has a form inquiring whether an individual has been charged or convicted of a crime, they should include a carve out stating that this inquiry does not apply to the arrest, criminal charge, or conviction of a person for unlawful possession of marijuana. Similarly, employers should train employees not to inquire about any arrests, charges, or convictions for marijuana possession. Employers should also be aware of EEOC guidance regarding the use of employee arrests, charges, or convictions in employment decisions.


For further information or questions about these new laws, or for any questions regarding employment laws applicable to Virginia employers, please contact Ms. Spitler or Mr. Cassidy at Vanderpool, Frostick & Nishanian.  The attorneys in the employment law department of VFN are available to help you revise your employee handbook and policies as well as provide training so that your organization complies with these new and other applicable law.  Alternatively, if your organization does not have an employee handbook, our firm can draft a handbook tailored to meet your business’s needs.

For further information or questions, please visit our site
Employment Law or Call Us (703) 369-4738

3
Jun
2020

CARES Act Grant Funds Available for Manassas Businesses

The City of Manassas is launching a new small business relief grant program. The City anticipates receiving CARES Act funds from the Federal government which may be used, in part, to provide support for small businesses adversely impacted by the COVID-19 pandemic. The City Council and the Economic Development Authority (EDA) intend to use some of these funds to establish a small business grant program. The grant funds are intended to provide support for small businesses of all types which have seen significant revenue losses due to the COVID-19 Pandemic.

The grant application and guidelines can be found on the City’s economic development website at www.ChooseManasssas.org. Or you can read more about this program in the EDA’s June 1st press release HERE.

VF&N is legal counsel to the Manassas City Economic Development Authority (EDA) and commends the EDA’s efforts for providing resources and support throughout the crisis.

11
May
2020

Can a rescue squad protect itself from local government accountability by becoming a non-stock corporation?

The Local Government Attorneys of Virginia hired Martin Crim of Vanderpool, Frostick & Nishanian P.C. to draft an amicus curiae brief in the Virginia Supreme Court case of Dumfries-Triangle Rescue Squad v. Board of County Supervisors of Prince William County. 

The case started when members of the rescue squad falsified operational records and the County’s Operational Medical Director refused to renew the operating license for the rescue squad. In response, the Board of Supervisors dissolved the Rescue Squad pursuant to statute and the agreement between the County and the Rescue Squad.

The Rescue Squad refused to wind up its affairs, however, claiming that its incorporation as a nonstock entity in 1959 made it immune to dissolution by the County. The Virginia Supreme Court allowed the appeal on the questions of whether the County had the authority to dissolve the Rescue Squad and whether the trial court was right to order the Rescue Squad to distribute its assets to the County.

The appeal presented the novel question of whether a rescue squad can unilaterally protect itself from local government accountability by becoming a non-stock corporation.

The amicus brief pointed out the state law has, since 1970, authorized local governments to regulate and even dissolve volunteer rescue squads, and similar laws apply to volunteer fire companies. Rescue squads are funded in large part with donations from private individuals and local governments, so the amicus brief argued that local governments need to have the ability to supervise, regulate, and, when necessary, dissolve rescue squads. State law has granted local governments those powers since 1970, and such laws affect rescue squads that existed before 1970 because the General Assembly has the power to affect existing corporations with new legislation designed to protect public health and safety.


* NO GUARANTEE OF RESULTS: Our prior results, including successful judgments and settlements, do not guarantee a similar outcome. Each case we handle is different and therefore we cannot guarantee any specific result in your case.