http://www.courts.state.va.us/scndex.htm)

090444 James v. City of Falls Church 06/10/2010 The trial court did not err in granting a motion to strike the evidence, or in dismissing an action by a church which had been denied an application for consolidation of several lots after consideration by a zoning administrator, planning staff, and the locality’s planning commission. The circuit court did not fail to apply the correct standard of review, and the church failed to show that the planning commission’s denial of its consolidation application was not properly based on the applicable ordinances, or was arbitrary or capricious, as was its burden of proof under Code §§ 15.2-2259(D) and -2260(E). The circuit court did not err in finding that the commission had the right and authority to disregard the zoning administrator’s interpretation of a local ordinance in deciding whether to approve or disapprove the consolidation application. The judgment is affirmed.

091180 Advanced Towing v. Fairfax County Board 06/10/2010 The trial court did not err in sustaining demurrers in a suit for declaratory relief filed by two towing companies challenging an ordinance requiring them to have a vehicle storage facility within the boundaries of the county. A reasonably conceivable state of facts appeared on the pleadings concerning enforcement of the provision that could provide a rational basis for the classification made by the ordinance under review, and the territorial limitation therefore survives analysis under the Equal Protection guarantee of the Fourteenth Amendment. Likewise, the Dillon Rule of limited local government powers allows a reasonable selection of method permitting local governing bodies to exercise discretionary authority where a statutory grant of power has been expressly made but is silent upon the mode or manner of its execution. The judgment is affirmed.

091271 TC MidAtlantic Development v. Commonwealth 06/10/2010 In a construction contract dispute, the trial court did not err in dismissing on demurrer two counts of a complaint brought by a construction company against the Virginia Department of General Services on the ground that compliance with conditions precedent for such claims was not adequately pled. The trial court erred in sustaining a demurrer and dismissing another count of the complaint as to which the timely claims requirement set forth in the demurrer was not applicable. The judgment is affirmed in part, and reversed in part, and the action is remanded for further proceedings.

091343 Covel v. Town of Vienna 06/10/2010 The judgment is affirmed in three consolidated circuit court actions involving challenges to a local historic preservation ordinance and decisions made by the locality thereunder. No evidence in the record rebuts the presumption of validity of the locality’s decision denying a certificate of appropriateness to build a fence and denying permission to remove various parcels from the historic district. Code § 15.2-1427(C), reenacted in 2000, bars all non-constitutional challenges to the adoption of ordinances existing at that time, such as the ordinance involved in these cases. The ordinance provisions at issue here are sufficiently precise and definite to give fair warning of the information required for applications under its terms, and no error is found in the judgment of the circuit court dismissing the as-applied challenge to the ordinance.

In their recent article, the Sands Anderson Marks & Miller construction litigation team commented on the Virginia Court of Appeals case, Commonwealth v. AMEC Civil, LLC, 54 Va. App. 240, 677 S.E.2d 633 (2009). Their article can be found here. (http://z.pe/j17)

The AMEC Civil Case

In the case, the Virginia Court of Appeals was called upon to interpret the language of Va. Code Ann. § 33.1-386(A) (2009) which requires that timely “written notice” of its “intention to file” a claim “at the time of the occurrence or beginning of the work upon which the claim and subsequent action is based.” The Court applied that language strictly, and held that the contractor had not met that requirement, despite actual verbal notice. AMEC Civil, LLC, at *18. 

The Court of Appeals relied upon two important Virginia Procurement act cases for local governments – Flory Small Business Development Center v. Commonwealth, 261 Va. 230, 541 S.E.2d 915 (2001) and Sabre Construction Corporation v. County of Fairfax, 256 Va. 68, 501 S.E.2d 144 (1998) (“The Public Procurement Act constitutes a waiver of public bodies’ sovereign immunity, is in derogation of the common law, and, therefore, must be strictly construed.”).

Broader Application to Local Government Contracts

While the statute in question, Virginia Code § 33.1-386, only applies to construction of state highways, the holding is likely to have a broader application to other types of public contracts and is helpful to localities.

First, some localities are now constructing or improving state highways given the lack of state money. Some localities have even assumed the role of VDOT locally.

Second, local governments typically use contractual language which is very similar to the statutory language interpreted in the AMEC Civil case. Construction contracts frequently contain standard language requiring prompt written notice of claims.

Third and most importantly, the language of Virginia Code § 33.1-386 is identical to language in the Virginia Public Procurement Act. Therefore, as noted above, the AMEC Civil court relied upon the case of Flory Small Business Development Center v. Commonwealth, 261 Va. 230, 541 S.E.2d 915 (2001), in which that same language was similarly interpreted: “Contractual claims, whether for money or other relief, shall be submitted in writing no later than 60 days after final payment. However, written notice of the contractor’s intention to file a claim shall be given at the time of the occurrence or beginning of the work upon which the claim is based.” Virginia Code § 2.2-4363(A) (formerly Virginia Code § 11-69(A)). Subsection (C) of that section provides for nearly identical language to be included in every contract unless some other procedural for considering claims is agreed to by the public body.

Thus, the AMEC Civil case (and its affirmative reliance upon Flory Small Business Development Center and Sabre Construction) is a good case for local governments as well as those who do business with local governments to keep in mind.