The VLW Blog

A second lawsuit challenging the authority of a Virginia homeowners’ association has been thrown out of court.

The winners last week were property owner groups in both the large-scale gated community of Lake Holiday in Frederick County and the small Dogwood Valley subdivision in Greene County.

In the Lake Holiday case, as reported by Virginia Lawyers Weekly, the judge dismissed the suit that sought to invalidate the Lake Holiday Country Club as a POA under the Virginia Property Owners’ Association Act.

In the Dogwood Valley case, U.S. District Judge Norman K. Moon rejected claims of racketeering and extortion against the Dogwood Valley Citizens’ Association.  Even though the group had no authority to make special assessments, it “simply tried to collect the monies necessary to maintain the roads and common areas as required by the deeds of declaration and the DVCA bylaws.”  Moon’s opinion is here.

By Peter Vieth

The latest chapter in the troubled saga of the Koger Management Group is not good news for its community association clients. As reported by the Fredericksburg Free Lance-Star, the company’s former head is seeking to change his bankruptcy status from chapter 11 to chapter 7. Waiting for any scraps from the sale of assets are about 200 homeowner associations with more than $10 million in claims.

By Peter Vieth

The latest lawsuit over development in Blacksburg concerns a proposed Sonic drive-in, according to the Roanoke Times. A company fighting to build a big-box retail store (think Wal-Mart) in the college town claims that local authorities rejected the Sonic as retribution for the company’s success in court. Blacksburg has a petition for appeal in the big-box case pending before the Supreme Court of Virginia.

By Peter Vieth

Lawyers who follow the 4th U.S. Circuit Court of Appeals know the Richmond-based court is not generous with published opinions.

According to a cover story in the June 2008 ABA Law Journal, the court, which has been short-handed for years, issued the lowest percentage of published opinions of all federal circuits in 2006 – 6 percent vs. 16 percent for the average of all circuits.

One academic study of appellate courts has suggested that appellate judges’ ideological preferences are different in published and unpublished opinion; judges’ decisions followed their ideological preferences in published opinions, but they did not in unpublished opinions.

So it may pay to track that vast shadow world of unpublished opinions. At least that’s our intro to a round-up of recent unpublished decisions of interest to Virginia lawyers:

* Cop Can Check Car Exhaust System. A Waynesboro police officer could stop a car to check for an illegally altered exhaust system, based on what the officer heard. When the officer could still hear the muffler rumbling from 70 feet away, it didn’t matter that he stopped the car before he could see whether the driver had altered the factory muffler. The 4th Circuit said in its July 7 opinion in U.S. v. Cousins that any mistake by the officer in guessing the cause of the exhaust noise did not eliminate his “reasonable and articulable suspicion” that the exhaust system violated Va. Code § 46.2-1049, and the guns and drug residue need not be suppressed.

* Attorney’s Fees On Late Petition. In its June 16 decision in Gaskins v. BFI Waste Services LLC, the appellate court vacated an award of $427,374 in attorney’s fees and costs to two men who won their race-based Title VII hostile environment case against BFI Waste Services, holding that Alexandria U.S. District Judge Gerald Bruce Lee had no authority under FRCP 6(b) to sua sponte extend the time for the plaintiffs to file their fee petition.

The court said that on remand for consideration of “excusable neglect,” the district court would have to weigh the plaintiffs’ option of a malpractice action against the lawyers who had won their “difficult and time-consuming case” and to whom plaintiffs already had paid $240,000 in fees, against BFI’s expense for appeal of the fee award that could have been reviewed two years ago.

* No Breach Of Real Estate Contract. A buyer got his $100,000 deposit back when the 4th Circuit reversed judgment for the seller of a Spotsylvania County tract in a million-dollar deal that fell apart at the closing table. According to the June 12 decision in Herder v. Simms, the Alexandria federal district court erred in holding that, by waiting until the parties were at closing to raise title defects, the buyer had waived the defects and had to close or breach the contract

* Feds Not Bound by Numbers in Letter. A letter from a federal prosecutor trying to sell a drug defendant a deal for “15 years instead of 65” was cold comfort for the defendant after his guilty plea and sentence of 26 years. In U.S. v. Morgan, the standard merger clause and other terms in the written plea agreement, plus the defendant’s responses in court, supported the longer sentence. But in its July 3 decision, the 4th Circuit did remand to the Roanoke U.S. District Court for resentencing under U.S. v. Booker.

By Deborah Elkins

Add Front Royal to the list of Virginia localities where the Board of Zoning Appeals was accused of being too generous. Warren County Circuit Judge Dennis L. Hupp this week nullified a variance that would have allowed a tall addition to the Afton Inn in Front Royal, as reported by the Northern Virginia Daily. At a hearing, board members admitted that they found no unconstitutional hardship on the property owner to justify the variance.

A similar issue has the Staunton City Council at war with that city’s BZA.

The Supreme Court of Virginia, in a 2004 opinion, held that a BZA cannot grant a zoning variance unless the property would be useless without it. Nevertheless, it seems that zoning boards sometimes forget or disregard that strict standard to help a landowner with a beneficial project.

In Staunton, the circuit court is wrestling with whether the BZA is entitled to a lawyer at the expense of the city that haled the BZA into court. Judge Thomas H. Wood appointed William E. Shmidheiser III of Harrisonburg to represent the BZA. City Attorney Douglas Guynn has objected.

In the Front Royal litigation, it appears that the Virginia Municipal League arranged for the BZA to be represented by Charlottesville’s John W. Zunka.

By Peter Vieth

Bedford County Attorney Carl Boggess opines that the county is free to develop recreational facilities on a plot of land deeded in 1832 “to erect a poorhouse and work house forever.” As reported by the Roanoke Times, Boggess concludes that the word “forever” simply gives complete title.

The Supreme Court of Virginia says that disgruntled neighbors can’t use the courts to blow the whistle on land use violations. The case comes from Roanoke, and the Times has details.

A comprehensive restructuring of the way localities pay for the costs of growth perhaps proved to be too comprehensive too soon.

Senate Bill 768 would have replaced cash proffers, the amount developers pay per unit to get a rezoning approved, with impact fees, an amount per unit when a building permit is approved, regardless of rezoning.

Sen. John Watkins, R-Powhatan, the sponsor of the bill, and the Home Builders Association of Virginia relied on a study by a George Mason University that concluded that the proposal would produce more money than proffers.

With some proffers topping $40,000 and the impact fees initially limited to $8,000 in Northern Virginia and $5,000 elsewhere, localities had trouble accepting that logic. The Virginia Association of Realtors and localities also were not fooled by an effort to label an increase in the grantor’s tax a “real property tax relief fee.”

Watkins got the bill through the Senate on a 21-19 vote by dropping the grantor’s tax increase and agreeing to increase the impact fees to $12,500 in Northern Virginia and $7,500 elsewhere.

Localities said they aren’t opposed to studying the issue but contended it was too much too soon. The House Rules Committee agreed yesterday and carried the bill over till next year.