(703) 369-4738

30
Mar
2020

Virtual Meetings and Consultations Now Available

In efforts to continue to serve our clients in a safe and CDC compliant manner, we are now offering virtual meetings and consultations.

If you are interested in scheduling a virtual consultation or meeting with your attorney, please call 703-369-4738 and one of our legal assistants will schedule a zoom appointment.

23
Mar
2020

Resources to Help Employers Respond to Workplace Issues From COVID-19 (Corona Virus)

By: Kristina Keech Spitler, Esquire

FOR THE MOST UP TO DATE INFO, PLEASE VISIT OUR COVID-19 PAGE

DOWNLOAD REPORT FOR PRINT

Given the fast-paced and changing nature of the impacts of the COVID-19 (Corona Virus) pandemic, businesses are working to respond in the best manner possible for the safety of their employees and customers while remaining in compliance with various employment laws and evaluating their ability to keep their businesses viable. On the evening of March 18, 2020, President Trump signed Families First Coronavirus Response Act (“FFCRA”) which amongst other provisions, includes the Emergency Family and Medical Leave Expansion Act, the Emergency Paid Sick Leave Act, and the Tax Credits For Paid Sick and Paid Family and Medical Leave that generally apply to all employers with fewer than 500 employees.

Businesses are evaluating how to respond to this pandemic which includes dealing with the following challenges (to name just a few of the many issues and concerns):

  1. Determine how to keep their employees safe and comply with various federal, state and local mandates, laws, and guidance.
  2. Determine how to comply with the Occupational Safety and Health Act.
  3. Evaluate if they can continue business operations by allowing employees to work remotely, and if so, which employees can work remotely. Ensuring that employees have the technology in place to effectively work remotely, and determine what policies and practices need to be put in place or amended.
  4. Determine what leave they should or must offer to their employees and whether they need to amend their existing leave and vacation policies and practices. Determine how to continue to comply with existing Family Medical Leave Act (FMLA) requirements (generally applicable to employers with 50 or more employees) and now comply with the new Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act requirements pursuant to the FFCRA.
  5. Determine how to comply with laws that prohibit discrimination based upon disability.
  6. Determine how to correctly pay employees (exempt and nonexempt) under the Fair Labor Standards Act given all the variables in play.
  7. Evaluate whether they should just close down and conserve resources with the hope of being able to reopen in the future.
  8. Evaluate what unemployment benefits can employees who have been terminated, laid off, or furloughed may be eligible for through the Virginia Employment Commission.

To help businesses with these challenges, I have provided some helpful information, a summary of some applicable employment laws, and identified where you can find additional useful resources.

Please note that this summary is designed to provide general information, is not intended to constitute legal advice, and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, please consult with an attorney.

Employers have a number of issues to consider in this difficult time. If you need legal counsel, please feel free to contact me at 703 369 4738 or kspitler@vfnlaw.com. In addition, please stay safe and healthy.

Employee and Customer Safety

Employers should frequently review the website for the Center for Disease Control (CDC) regarding guidance and regular updates including its Interim Guidance for Businesses and Employers. https://www.cdc.gov/coronavirus/2019-ncov/index.html https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

Employers should also frequently visit the website for the Virginia Department of Health. http://www.vdh.virginia.gov/coronavirus/

Occupational Safety and Health Act (“OSHA”)

“The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” This statement is contained in OSHA’s Guidance on Preparing Workplaces for COVID-19. Employers should review this resource at the website referenced below. https://www.osha.gov/Publications/OSHA3990.pdf

Remote Working/Telecommuting

While working remotely (also called telecommuting or teleworking) is not new and many employers (both small and large) have been allowing employees to do so and/or providing it as a benefit to employees for flexibility and work/life benefit reasons, the COVID-19 pandemic is forcing all employers to consider this as an option for business continuity reasons. If you already allow remote working, you should review and if necessary, amend existing policies – particularly if you previously only allowed remote working for limited periods such as one day per week. If you are new to teleworking or who have previously been reluctant to allow it, there are many resources available on the internet that can help you manage teleworking employees. Below is a site for an article from Harvard Business Review on how to manage newly remote workers. https://hbr.org/2020/03/a-guide-to-managing-your-newly-remote-workers

Employee Leave

Employee leave is not a simple issue and involves various laws (and now including the newly enacted Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act as part of the Families First Coronavirus Response Act). Employers should consult with legal counsel to ensure compliance with leave laws.

Generally, employers will need to comply with their current policies or amend them regarding any paid or unpaid leave to provide employees. Employers should also look at their vacation policies. Employers will need to decide if they are going to allow employees to take advance leave/vacation and/or go into the negative if employees need to take leave related to the Corona virus or other illnesses. Employers may need to amend various policies to address these issues. In addition, please see the FFCRA summary below as the Act requires paid sick leave related to the Corona virus under certain conditions for all employers with fewer than 500 employees.

Employers will also need to comply with existing FMLA laws and regulations. Generally, the FMLA applies to employers with 50 or more employees within a 75-mile radius and would not apply to smaller employers. However, please see the FFCRA summary below as the Act amends the FMLA to deal with the Corona virus and applies to all employers with fewer than 500 employees.

For convenience, I have included the website below for Department of Labor’s “COVID19 or Other Public Health Emergencies and the Family and Medical Leave Act Questions and Answers” which was published prior to the enactment of FFCRA. https://www.dol.gov/agencies/whd/fmla/pandemic

Leave Under the Families First Coronavirus Response Act (FFCRA)

The FFCRA was enacted quickly in response to the Corona virus and, in part, requires all private for-profit and not-for-profit employers with fewer than 500 employees along with government employers (“Covered Employers”) to provide certain paid sick leave and paid family and medical leave to employees. It also provides that these employers will get a tax credit as described below. There are a lot of unanswered questions about this new legislation. As of the date of this article, DOL has not published any regulations or guidance on compliance with FFCRA. Stay tuned as guidance is expected. Both the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provide that they “shall take effect not later than 15 days after the date of the enactment of this Act.” As part of FFCRA, it was signed by President Trump on March 18, 2020 so that it would go into effect under the Act by April 2, 2020 at the latest. Both acts end on December 31, 2020.

FFCRA Emergency Paid Sick Leave Act

Covered Employers shall provide employees for immediate use (regardless of how long they have been employed) with up to 10 days of paid sick leave if the employee is unable to work or telework for the following reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to a quarantine or isolation order as described in (1) above, or has been advised as described in (2) above;
  5. The employee is caring for a son or daughter whose school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions; or
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The amount of hours of paid sick time for full-time employees is up to 10 days (80 hours). Part time employees are entitled to “a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.” Unused paid sick leave may not be carried over from one year to the next.

The amount Covered Employers must pay to an employee who is unable to work or telework for one of the above reasons will be the following:

  • paid at the employee’s regular rate, up to $511 per day ($5,110 in the aggregate), to quarantine or seek a diagnosis or preventive care for COVID-19 (reasons 1, 2 or 3 above); or
  • paid at two-thirds the employee’s regular rate, up to $200 per day ($2,000 in the aggregate), to care for a family member for such purposes or to care for a child whose school has closed, or whose child care provider is unavailable, due to COVID-19, or the employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services (reasons 4, 5 and 6 above).

Covered Employers may not require an employee to use other paid leave provided by the employer before the employee uses the paid sick leave provided under this Act. The Act does not address how to handle if the employer has already provided sick or other type of leave to employees prior to its enactment.

It shall be unlawful for employers to discharge, discipline, or in any other manner discriminate against any employee who takes leave under this Act and who has filed any complaint related to this Act or has or will testify about any such proceeding. Violations of this Act will be considered violations of the Fair Labor Standards Act and employees may be entitled to unpaid wages, liquidated damages, and attorneys’ fees and costs.

Covered Employers are required to post and keep posted in conspicuous places on their premises a notice regarding the rights under this Act. This notice will be prepared by the Secretary of Labor and available at a later date. Secretary of Labor shall make a publicly available model notice within 7 days of enactment.

Covered Employers of health care providers or emergency responders may elect to exclude such employees from the application of this subsection.

In addition, the Secretary of Labor shall have the authority to issue regulations to: 1) exclude certain health care providers and emergency responders from the definition of employee, including allowing employers of such health care providers and emergency responders to opt out; 2) to exempt small businesses with fewer than 50 employees from the requirements of providing paid sick leave under reason #5 above (the employee is caring for a son or daughter whose school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19 precautions) when the imposition of such requirements would jeopardize the viability of the business as a going concern; and 3) as necessary to carry out the purposes of this Act.

FFCRA Emergency Family and Medical Leave Act

This Act amends the existing Family and Medical Leave Act of 1993. The Act provides that Employees who have been employed for at least 30 days with a Covered Employer will be entitled to take up to 12 weeks of job-protected Emergency FMLA leave for a qualifying need related to a public health emergency of COVID-19. The Act defines this to mean that the employee is unable to work or telework in order to care for a child (under the age of 18) if the child’s school or place of care has been closed or the childcare provider is unavailable due to COVID-19. The first two weeks of the Emergency FMLA leave are unpaid under this Act. During this time, Employee sick leave may be under the Emergency Paid Sick Leave described above or the employee may elect, but may not be required, to substitute any accrued vacation leave, personal leave, or medical or sick leave already provided by the employer. Thereafter, the remaining 10 weeks would be paid Emergency FMLA leave. The amount of pay shall be no less that two-thirds (2/3) of the employee’s usual pay, up to $200 per day ($10,000 total). When the need for such leave is foreseeable, employee shall provide the employer with such notice as is practicable.

It is unclear at this time whether or how employer-provided paid leave would run concurrently with this Emergency FMLA leave and how it would interact with the traditional FMLA leave benefits.

As this is job-protected leave, this means that the employer must restore the employee to the same or equivalent position when s/he returns to work from such leave. However, for Covered Employers who employ fewer than 25 employees, the Act provides that this job restoration provision shall not apply if 1) the position does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave; and 2) the employer makes reasonable efforts to restore the employee to an equivalent position during the year following the conclusion of the leave period.

Similar to the Emergency Paid Sick Leave Act, Covered Employers of health care providers or emergency responders may elect to exclude such employees from the application of this subsection. In addition, the Secretary of Labor shall have the authority to issue regulations to 1) exclude certain health care providers and emergency responders from the definition of employee; and 2) to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern.

FFCRA Tax Credits for Employers Providing Emergency Paid Sick Leave and Emergency FMLA Leave

Covered Employers who provide Emergency Paid Sick Leave and Emergency FMLA Leave will be eligible for refundable tax credits on their payroll tax payments equal to 100% of the amount paid (up to the maximum amount authorized by each Act) during each quarter.

Americans with Disabilities Act (“ADA”)

For employers who are covered by the Americans with Disabilities Act (15 or more employees), the U.S. Equal Employment Opportunity Commission (“EEOC”) has provided guidance on complying with the ADA and Rehabilitation Act, including requirements for reasonable accommodations and rules about medical examinations and inquiries. On March 19, 2020, the EEOC clarified that while both Acts continue to apply, they do not interfere with or prevent employers from following the guidelines and suggestions by the CDC or state/local public health authorities. See the EEOC’s webpage and the EEOC’s Pandemic Preparedness in the Workplace and the Americans With Disabilities Act below. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm https://www.eeoc.gov/facts/pandemic_flu.html

Fair Labor Standards Act (“FLSA”)

Employers need to be careful to ensure that they are complying with the FLSA when evaluating how to correctly pay their employees (exempt and nonexempt) given all the variables in play during this pandemic. Employers should consult with legal counsel to ensure they are complying with the FLSA. In addition, please see the guidance that the Department of Labor has provided: “COVID-19 or Other Public Health Emergencies and the Fair Labor Standards Act Questions and Answers.” https://www.dol.gov/agencies/whd/flsa/pandemic

Closing Your Business, Terminating Employees, and Unemployment Benefits

Evaluating whether a business should close down now and conserve resources with the hope of being able to reopen in the future is a complicated and difficult decision. The decisions regarding whether to terminate, layoff or furlough some or all employees is equally as difficult. Both issues are beyond the scope of this article. In the event that employers do terminate employees and/or significantly reduce their hours, generally the employees may apply for unemployment benefits with the Virginia Employment Commission. Note that beginning March 15, 2020, the one week waiting period and the requirement to conduct a weekly job search has been suspended by the Governor in response to the pandemic. See the Virginia Employment Commission website below. http://www.vec.virginia.gov/

Businesses should also be aware of the Worker Adjustment and Retraining Notification Act (“WARN Act”) which generally requires that employers with 100 or more employees provide certain notices of intention when closing a facility with 50 or more employees and/or laying off 50 or more employees. The Virginia VEC has established a rapid response team to help in this situation. See VEC website above.

17
Dec
2019

Six Attorneys Named Legal Elite in 2019

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

Litigation & Construction– Randolph Frostick

Land Use & Real Estate– Michael Vanderpool

Intellectual Property– Christopher Collins

Employment Law– Kristina Keech Spitler

Young Lawyer (under 40) – Brett Callahan

Business Law– V. Rick Nishanian

19
Jul
2019

So What Did Change with the New Proffer Law?

In our first blog post on the 2019 Virginia proffer legislation, we told you what hasn’t changed with the new law. As promised, now we will address what has changed.

Myth: Under the new law, localities have no liability exposure for unreasonable demands unless the governing body requests one in writing, so planning staff can talk to developers again. 

Reality: The new legislation says that developers and localities can talk, but the old legislation didn’t say they couldn’t. The reason why local government attorneys warned staff against talking to developers was the Koontz decision from the US Supreme Court, and specifically Justice Kagan’s dissent in that case which warned that “no local government official with a decent lawyer would have a conversation with a developer” because of the risk of liability. (That hasn’t changed.) There’s also the question of whether a local governing body authorizes or ratifies a written request from a staff member.

The bottom line is that the new law changes the liability exposure of localities, but localities should still exercise caution.

Myth: Under the new law, localities can expect to receive proffers for facilities in addition to the four enumerated facility types of transportation, schools, public safety, and parks.

Reality: The new legislation allows for proffers to be deemed reasonable if signed by the applicant and property owner, even if they are for off-site proffers that aren’t for the four kinds of public facility. However, beware that the new law takes away with one hand what it hands out with the other. Right after the language about the owner and applicant being able to make any offsite proffer reasonable just by signing it, the General Assembly wrote the following:

2. Failure to submit proffers as set forth in subdivision 1 shall not be a basis for the denial of any rezoning or proffer condition amendment application.

This raises an interesting question if the locality relies upon impacts on facilities other than transportation, parks, schools and public safety to deny a rezoning.

Myth: Under the new law, an applicant has to object in writing to a proffer request in order to challenge it later. 

Reality: Challenges based on violations of “this section” (Va. Code Section 15.2-2303.4) require a written objection to the governing body before the aggrieved applicant can file suit. This limits the availability of the legal remedies under that code section, but does not limit the remedies available for a constitutional challenge or a challenge based on another statute.   It is also important to note that this section does not extend to conditions imposed pursuant to a special use permit.

Localities still need to do their own analysis on whether a proffer request is reasonable. Maybe not as much changed with the new law as some people are hoping.

By the Proffer Professors: Mike Vanderpool & Martin Crim

14
May
2019

Book Smarts…VF&N attorney, textbook contributor

Pictured above: VF&N land use and zoning attorney, Karen Cohen, with legendary engineer, Sid Dewberry, PE, LS, Chairman Emeritus, Dewberry, Kat Grimsley, Director of the MS Real Estate Development program at George Mason University, and the team of book contributors, celebrating the publication of the third in a series of land development books by industry-leading design firm, Dewberry. 

Development of the Built Environment: From Site Acquisition to Project Completion is a textbook that explores the entire development process from an applied perspective to provide architects, civil engineers, and other team members with an understanding of the context in which real estate development occurs.  Karen, fellow alumnae of the Mason Masters of Real Estate Development (MRED) program, and others, were contributors and advisors.

2
May
2019

Land use and zoning explained: Repurposing an established building through a special use permit

The commercial real estate and property sector in Northern Virginia and Prince William County has experienced fluctuations in recent years which resulted in vacant buildings. For the owners of these properties, they’re left with a tough decision – let the property stay vacant or repurpose the property.

Repurposing property is using a building differently than the original intent. As a property owner, you are looking for cost-effective ways to keep your investment profitable.  For example, If you turn an old factory into loft apartments, or a barn into an event center, the building sees new life, you continue to make money, and all without building on existing green space. But it isn’t always that easy to change land use of an existing property.

Land use considerations

Land use laws regulate how businesses can operate on certain lands. The most common form of land use regulation is zoning. Cities use this legal process all across the country to help regulate their local development. Zoning laws prevent you from coming home to your well-established housing neighborhood and finding a big box store has set up shop next door.

While it’s not likely for a big box store to pop up next to houses, it is possible as in our earlier example, for a factory to become loft apartments. The zoning for that land must change to account for residents living on the property instead of people coming to work. Without making this change, it puts both the business operator and you, the property owner, in legal peril. It’s up to you to make sure the city allows the land use modification.

Special use permit (SUP)

A special use permit allows a local government to take a look at one particular development and to impose conditions needed to mitigate any impacts on the community. It is available only if the zoning ordinance provides for it.

To obtain a special use permit, you must get approval from the governing body in your community. You need to file an application, submit the filing fee, provide documentation supporting your request, and submit to questioning at a public hearing.  See the steps outlined below:

The process to obtain a SUP

23
Apr
2019

2019 Virginia Proffer Law Changes: Myths Unraveled

As attorneys and self-proclaimed Proffer Professors, we were concerned by what we were hearing from the industry on the recent proffer reform. Blanket statements like, “oh, it’s just a repeal of the 2016 law” or “proffer schedules are legal now”.  In this post, we clear the air of misconceptions.

Myth: The 2019 law repealed the 2016 law

Fact: To debunk the first myth, we’ll just note that the 2019 law leaves large parts of the 2016 law intact. For example, the law still forbids a local government from denying a rezoning application for residential development “where such denial is based in whole or in part on an applicant’s failure or refusal to submit an unreasonable proffer.” For another, the law still exempts qualified “small area comprehensive plans.” There are some significant changes, though, and we will comment on them in future blog posts.

Myth: Proffer schedules are now legally OK

Fact: As for the second myth, the 2019 law doesn’t clear the constitutional hurdle for proffer schedules. Under federal case law, a proffer first must be connected to the development impacts (that is, it has to have a “nexus”) and second, there must be “rough proportionality,” which refers to the degree of connection between the proffer and the development’s projected impact.

So, just how “rough” can the degree of connection be and still pass muster under the Fifth Amendment of the U.S. Constitution?  The U.S. Supreme Court (in a case called Dolan) answered that question this way:  “No precise mathematical calculation is required, but the [locality] must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development.” 

A locality can still provide information about how much it costs to build a school, police station, or park, but because a “one size fits all” proffer schedule lacks the required individualized determination, it is subject to attack on constitutional grounds.

Stay tune for the next topic: So what did change?

By the Proffer Professors: Mike Vanderpool, Martin Crim, and Karen Cohen  

27
Dec
2018

FINDING COMMON GROUND ON PROFFER REFORM IN VIRGINIA

Since its controversial passage in 2016, Virginia’s Proffer Reform Law has continued to stir debate. Despite the rift between homebuilders and local governments over the law, efforts are underway to find common ground.

Initially, opponents of the law sought either outright repeal or additional exemptions to make the law inapplicable to certain parts of the Commonwealth. However, recent efforts have instead focused on reforming the Proffer Reform law.

This published article, co-authored by VF&N Attorneys Michael R. Vanderpool and Karen L. Cohen, highlights some of the key concerns voiced by both opponents and supporters of the law, and evaluates what types of legislative changes may be appropriate in light of common law and constitutional limitations.

Download Full Report: Proffer Reform in Virginia

12
Dec
2018

General Contractors Beware of New Maryland Law

by Guy R. Jeffress, Esq.

The Maryland General Assembly passed Senate Bill 853, which took effect on October 1, 2018, that added the following text to Section 3-507.2 of the Maryland Code, Labor & Employment:

In an action brought under subsection (a) of this section, a general contractor on a project for construction services is jointly and severally liable for a violation of this subtitle that is committed by a subcontractor, regardless of whether the subcontractor is in a direct contractual relationship with the general contractor.

If a court finds that a sub-contractor failed, under certain circumstances, to properly pay an employee, the general contractor may be liable for damages, counsel fees, and other costs.

The Act now permits an employee of a sub-contractor, who was not paid in accordance with applicable Maryland wage/hour laws, the right of action against the general contractor even though there is no direct contractual relationship between the general contractor and the subcontractor’s employee.

Risk mitigation strategies for Owners, General Contractors and Senior Sub-Contractors involved in Maryland based construction projects:

  1. Inspection of Payroll Records – Include in your contracts a provision that requires subcontractors to provide certified and detailed payroll information with every pay application.
  2. Audit Clauses – Include provisions in your contracts that permits you to conduct “spot audits” or “interviews” with sub-contractor employees.
  3. Certifications – Require sub-contractors to certify or declare in their payment applications that they have checked/audited the payrolls of every sub-contractor at every tier to confirm the payment of employees.
  4. Insurance/Bonding – Require subcontractors to furnish payment and/or performance bonds or wage-hour insurance. To cover the entire statutory period for wage claims, these bonds or insurance will have to be maintained for three years after final payment of wages on the project.
  5. Broad Indemnity and Personal Guaranty Provisions – In addition to any existing general indemnification clause, include a specific clause or language addressing claims arising out of any violations of the Act. Require that the principals of all sub-contractors personally guaranty compliance with the Act and payment of employees.
  6. Flow Down of Terms and Conditions – Require that all clauses in the sub-contract relating to the Act and subcontractor’s obligations thereunder flow down to each subcontract tier.
  7. Obligation to Defend – In addition to indemnification obligations there should also be provisions all sub-contracts requiring the sub-contractor to defend the general/direct contractor for violations of the Act.
  8. Hiring Decisions – Include provisions giving the general contractor the power to approve or reject the hiring of sub-subcontractors of all tiers.
  9. Site Security – Implement site security to confirm identification of all employees on the job site so no previously unidentified individuals can later appear seemingly out of nowhere and claim that an employer/subcontractor did not pay them.
  10. Creation of Fiduciary Duty – “In-Trust” Requirements – Include a provision in all private works sub-contracts requiring sub-contractors to hold all payments received “in trust” for the benefit of the direct contractor and the benefit of the subcontractor’s employees, lower-tiered subcontractor employees, for the purpose of meeting the wage and benefit obligations owed not only to the subcontractor’s employees but the employees of any lower-tiered subcontractors.
  11. Increased Retention – Increase retention percentages, withholding, and back-charges depending on the sub-contractor and size of job.
  12. Identification of General Contractor – expressly note the identity of the general contractor in each contract. Project owners may want to include disclaimers that they are “not” acting as the general contractor.
  13. Three Years Statute of Limitations – A general contractor should retain pertinent records from all subcontractors for at least that long following project completion and should make sure that all indemnification obligations survive the completion of the project for that length of time as well.

Please contact us at 703-369-4738 with any questions.

*The information contained in this website is provided for informational purposes only and should not be construed as legal advice. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site. Do not act or refrain from acting upon this information without seeking professional legal counsel.

6
Dec
2018

VF&N Litigation Attorney Brett A. Callahan Wins Precedent Setting Cell Tower Case for Homeowners

Special Use Permit is Invalid

On Sept. 10th, 2018, Prince William County Circuit Court Judge Carroll Weimer, Jr. ruled in favor of a group of homeowners, voiding the grant of a Special Use Permit (SUP) for a cell phone tower.

Under the legal representation of Brett A. Callahan of Vanderpool, Frostick & Nishanian P.C. litigation team, the homeowners claimed that they were not properly notified of the Planning Commission hearing or the Board of Supervisors (BOS) public hearing on the SUP for a cell phone tower to be placed near their homes.

Meaning of the word “Current”

The homeowners bought into a new subdivision March through late May 2016, yet the SUP applicant and County used a February 3, 2016 Adjacent Property Owners (APO) list to send notices. This list was based on an earlier list generated by the County from the tax records. The applicant maintained that they had relied on the list provided by the County and the County’s policy was that an APO list up to six months old is “current.” The County likewise argued that it is their prerogative to apply an administrative interpretation that an APO list based on tax records up to six months old is “current” under the notice statute to avoid excessive burden on the County.

The judge determined:

  • A policy permitting APO lists based on six-month-old tax records is not in compliance with the law either under the plain meaning of the word “current” in the statute or legislative intent standard of statutory interpretation, especially in light of how quickly County tax assessment records are updated and the free and easy access to tax assessment records through the County’s website.
  • The SUP is void ab initio for lack of notice.

* 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