Seattle Washington Building Expert Directory

SCOTUS Opens Up Federal Courts to Land Owners

July 15, 2019 — Wally Zimolong - Supplemental Conditions
For nearly 36 years, the United States Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) severely frustrated, if not all but foreclosed, a property owner’s right to bring a claim in federal court based on a regulatory taking. Under the Fifth Amendment, a property owner whose land has been “taken” by the government is entitled to just compensation. There are two types of takings direct or “inverse” or regulatory takings. A direct taking is where the government declares that it needs your land for public use and offers to pay you compensation. You might disagree with the amount offered – and that often is the case. But, a mechanism exists whereby a neutral third party – a condemnation board – will arrive at the compensation that is owed. On the other hand, an inverse condemnation or regulatory taking occurs when the government takes some action that restricts the use of the land in such a way as to severely impact it beneficial economic use. For example, if you own a strip of commercial property and intend to develop it and then the municipality comes along and suddenly changes the zoning classification of the parcel such that you can no longer develop it in a beneficial way, then you might have a regulatory takings case. Under the Court’s Williamson County decision, property owners falling within the later category were required to exhaust state remedies before proceeding to federal court under a claim that their Fifth Amendment rights were violated. The problem with this is that, as the Supreme Court explained, it creates a Catch-22. If property owners exhaust their state remedies and the state remedies result in an unfavorable outcome, the federal court is powerless to overturn that decision under the doctrines of res judicata and the full faith and credit clause of the Constitution. Well, yesterday, the Court overturned Williamson County, in Knick v. Township of Scott, 588 U.S. _____ (2019). There the Court held unequivocally a “property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under Section 1983 at that time.” Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

NY Estimating Consultant Settles $3.1M Government Project Fraud Case

November 23, 2020 — Eva Fedderly - Engineering News-Record
VJ Associates, a Hicksville, N.Y., estimating consultant, has agreed to pay $3.13 million in civil and criminal penalties to settle charges that the firm overbilled and falsified hours on multiple federal and state government-funded transportation and other contracts in New York and Massachusetts, the U.S. Attorney's office in Boston announced on Oct. 29. Reprinted courtesy of Eva Fedderly, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Contract Not So Clear in South Carolina Construction Defect Case

November 07, 2012 — CDJ STAFF
The South Carolina Court of Appeals has reversed a partial summary judgment issued by one of the lower courts in the case of The Retreat at Edisto Co-Owners Association v. The Retreat at Edisto. The underlying issues of the case deal with a construction defect complaint. The lower court had concluded “Developer’s ‘First Amendment’ to the Master Deed required the Developer to satisfy the provision in the paragraph labeled ‘Master Deed Amendment or Phase II’ as a condition precedent to its election to proceed with the development of Phase II.” The appeals court found that “the language of the First Amendment to the Master Deed is susceptible to more than one interpretation.” The court additionally concluded that the “Developer presented the requisite scintilla of evidence on the question of its intent in order to establish a genuine issue of material fact. As the material facts were in dispute, the appeals court reversed the summary judgment and remanded the case to the circuit court for further proceedings. Read the court decision
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Think Twice Before Hedging A Position Or Defense On A Speculative Event Or Occurrence

July 13, 2020 — David Adelstein - Florida Construction Legal Updates
Sometimes, hedging a position on a potential occurrence is not prudent. Stated differently, hedging a position on a contingent event is not the right course of action. The reason being is that a potential occurrence or contingent event is SPECULATIVE. The occurrence or event may not take place and, even if it does take place, the impact is unknown. An example of hedging a defense on such a potential occurrence or contingent event can be found in a construction dispute involving a federal project out of the Eastern District of Virginia, U.S. f/u/b/o Champco, Inc. v. Arch Insurance Co., 2020 WL 1644565 (E.D.Va. 2020). In this case, the prime contractor hired a subcontractor to perform electrical work, under one subcontract, and install a security system, under a separate subcontract. The subcontractor claimed it was owed money under the two subcontracts and instituted a lawsuit against the prime contractor’s Miller Act payment bond. The prime contractor had issued the subcontractor an approximate $71,000 back-charge for delays. While the subcontractor did not accept the back-charge, it moved for summary judgment claiming that the liability for the back-charge can be resolved at trial as there is still over $300,000 in contract balance that should be paid to it. The prime contractor countered that the delays caused by the subcontractor could be greater than $71,000 based on a negative evaluation in the Contractor Performance Assessment Reporting System (“CPARS”). A negative CPARS rating by the federal government due to the delays caused by the subcontractor would result in a (potential) loss of business with the federal government (i.e., lost profit) to the prime contractor. The main problem for the prime contractor: a negative CPARs rating was entirely speculative as there had not been a negative CPARs rating and, even if there was, the impact a negative rating would have on the prime contractor’s future business with the federal government was unknown. To this point, the district court stated:

In this case, [prime contractor’s] claim for damages is wholly speculative. [Prime contractor] has not produced any evidence that its stated condition precedent—a negative CPARS rating—will actually occur and will have a negative impact on its future federal contracting endeavors. Specifically, [prime contractor] has not identified any facts that indicate that it will be subject to a negative CPARS rating or any indication of the Navy’s dissatisfaction with its work as the prime contractor on the Project… Further, a CPARS rating is only one aspect taken into consideration when federal contracts are awarded. In sum, there is no evidence of the following: (1) a negative CPARS rating issued to [prime contractor]; (2) [prime contractor’s] hypothetical negative rating will be the result of the delay [prime contractor] alleges was caused by [subcontractor]; or (3) [prime contractor’s] hypothetical negative CPARS rating will result in future lost profits.

U.S. f/u/b/o Champco, Inc., supra, at *2 (internal citation omitted).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Lewis Brisbois Ranks Among Top 25 Firms on NLJ’s 2021 Women in Law Scorecard

July 25, 2021 — Jana Lubert - Lewis Brisbois
Lewis Brisbois has been ranked among the top 25 law firms included in the National Law Journal's (NLJ) 2021 Women in Law Scorecard (Women’s Scorecard), moving up from 27th place to 23rd place this year. In addition, of the top 25 firms in the Women’s Scorecard, Lewis Brisbois had the highest number of female minority partners. The Women’s Scorecard is produced as part of the annual NLJ 500 firm head count report, and only the largest 350 firms are eligible to be included on the scorecard. A firm’s score is determined by adding the percentage of female attorneys and percentage of female partners. Diversity staffing counts were based on a firm’s average full-time attorneys in 2020, excluding contract and temporary attorneys. Read the court decision
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Reprinted courtesy of Jana Lubert, Lewis Brisbois
Ms. Lubert may be contacted at Jana.Lubert@lewisbrisbois.com

Legal Disputes Soar as Poor Information Management Impacts the AEC Industry

July 03, 2022 — Ideagen Plc
Managers in Architecture, Engineering and Construction (AEC) are facing more disruptive disputes in 2022 compared to last year according to the latest independent research from regulatory compliance company Ideagen. The survey of business leaders from AEC firms in the US and UK revealed that 78% of respondents experienced some kind of dispute in the business, compared to 63% in 2021, with information accessibility and visibility, caused largely by high staff turnover, the main root causes. With the challenges that the industry continues to face following COVID and increasing costs of materials, this is an added but unnecessary challenge facing the industry. Stuart Rowe, Vice President of Collaboration Strategy at Ideagen, whose customers include the US Navy, Gensler, Arup and Ramboll, said: "The working world has continued to change in the last 12 months, which is reflected in the AEC industry's evolving priorities. The COVID-19 pandemic led to a huge shift to remote working which saw an increased need for effective collaboration tools, however, this year is appears that hybrid working is the new normal in the industry. "Four-fifths of the people we spoke to said email is still king for project correspondence. This is a huge concern as most project scope changes reside in email inboxes. Failing to properly manage all information and records also prevents a Golden Thread, or a Single Source of Truth, across projects and businesses." Ideagen undertook the independent survey to support developments to their Mail Manager software, used by 2,500 architecture, engineering and construction firms in 16 countries worldwide. It revealed a number of insights into how the industry is managing changing work patterns. Download the full research here. Read the court decision
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Construction Contracts Fall in Denver

October 02, 2013 — CDJ STAFF
After nearly a year of growth, residential construction contracts dropped 22% in the Denver area in August. Residential construction contracts are still above what they were before August 2012, but the gains since then have been wiped out. The value of contracts in August 2012 was $219.8 million, and this this August they have fallen to $171.7 million. Commercial construction also saw a reduction, however, there the fall was only 7%, dropping from $1.54 billion to $1.43 billion. Read the court decision
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Cutting the Salt Out: Tips for Avoiding Union Salting Charges

January 10, 2018 — Wally Zimolong - Zimolong LLC
The strategy to avoid union salts is rather simple. But, simplicity does not mean easy. The process requires discipline. A salt is a paid union organizer that attempts to gain employment with a non-union employer for the purpose of either (a) organizing the employers workforce or (b) bringing a costly unfair labor practice charge for discriminatory hiring practices. A “covert salt” is someone who conceals his union affiliation in order to gain employment with a non-union employer for the purpose of starting a union organizing campaign. Actually, conceal is an understatement. Covert salts actively lie to gain employment with a non-union employer. Covert salts apply for jobs under false names, social security numbers, and use bogus resumes. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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