Subject: Legislative Bulletin

  Volume VIII, Number 2  January 27, 2006





The 2006 HBAV Legislative package has been introduced to the Virginia General Assembly and has begun its journey through the state legislative process. Listed below are those measures the HBAV Legislative Committee crafted and approved as legislative priorities for this session of the state legislature. Each is followed with status in the process.

HOUSE BILL 558, by Delegate Glenn Oder – Would provide that no cause of action for breach of warranty shall be commenced on or after January 1, 2007, unless a written statement by the claimant or his agent, attorney or representative, of the nature of the alleged defect has been to the sent to the declarant, by registered or certified mail, at his last known address, as reflected in the records of the Real Estate Board, more than six months prior to the commencement of the action giving the declarant an opportunity to cure the alleged defect within a reasonable time. The bill provides that sending the required notice shall toll the statute of limitations for commencing a breach of warranty action for a period not to exceed six months. The bill also contains technical amendments.

In the 2002 Session of the Virginia General Assembly, legislation was passed that amended the Virginia Implied Warranty Statute that applies to new dwellings, except condominiums or condominium units, to require home builders with a “notice of construction defects” and an “opportunity to cure” the defect prior to the commencement of a warranty claim by a new home buyer.

House Bill 558 would apply a “notice of construction defect” and an “opportunity to cure” provision to Section 55-79.79 (c) of the Virginia Condominium Act. The failure to include condominiums in the 2002 legislation was an oversight.

Much of the construction defect litigation that has occurred outside of Virginia in recent years has focused on condominiums or condominium units. While there has been little construction defect litigation in Virginia, the housing industry supports providing the builders of condominiums in Virginia with the same opportunity for “notice of construction defects” and the same “opportunity to cure” the defect prior to the commencement of a warranty claim as is applicable to other newly constructed dwelling units in Virginia.

House Bill 558 has been assigned to and approved by the House General Laws Subcommittee on Housing and should be before the full Committee next Tuesday morning.

HOUSE BILL 919, by Delegate Glenn Oder – Would modify the timing for transfer of easements from a developer to a franchised cable television operator. Existing language that refers to conveyance by reference on the final plat is amended to require conveyance within 30 days after a written request by the cable operator.

In the 2004 Session of the Virginia General Assembly, a measure was passed (HB 715) that has required the location of franchised cable and public service corporation easements to be displayed and conveyed by reference on the final plat. The measure was designed to level the playing field, with respect to the location of easements, between public service corporations and cable franchise operators and was not opposed by HBAV. As a result of the passage of HB 715, several localities have interpreted the measure to require the location of such easements be determined prior to approval of a final plat. In other words, the “cart” has been placed before the “horse”.

Prior to the passage of House Bill 715 in 2004, the location of such easements were established and recorded after the approval of final plats by localities. Public service corporations and franchise cable operators, who provide the design layout of their service to new developments, prefer to design their service layout after final plat approval, since development designs often change between preliminary plat approval and final plat approval. Dry utility providers prefer to provide one service design to land developers rather than two, should a development design change between preliminary plat approval and final plat approval.

The measure repeals most the provisions of HB 715, and will require a developer to provide an easement to a cable television operator, upon written request, within 30 days after conveying an easement, which will permit electric or telephone service to be furnished to a subdivision.

House Bill 919 has been assigned to the House Counties, Cities and Towns Committee.

HOUSE BILL 684, by Delegate Tom Rust – Provides definitions of terms in the Erosion and Sediment Control and Stormwater Management Acts that clarify what are acceptable flow rates from storm runoff at sites where land development projects are occurring.

The measure is intended to address stormwater issues raised by development and redevelopment in urban and urbanizing areas of the Commonwealth. The Department of Conservation and recreation has promulgated regulations designed to protect streams from erosion and flooding that frequently results from land development. But many streams in such areas are already eroded or eroding and considered inadequate under the DCR regulations. What is needed is an on-site remedy that will provide for real environmental protection of downstream receiving channels. Such a remedy will better protect the environment and reduce sprawl by facilitating development and redevelopment in urban and urbanizing areas of Virginia.

House Bill 684 will amend the erosion and sediment control and stormwater management laws to provide that stormwater management facilities will satisfy those laws and their implementing regulations if they are designed (i) to detain the water quality volume and release it over 48 hours, (ii) to detain and release over a 24-hour period the expected rainfall resulting from the 1-year 24-hour storm, and (iii) reduce the allowable peak flow rate resulting from the 1.5, 2 and 10-year, 24 hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition. Use of this stringent and expensive alternative will be voluntary.

We are pleased to report that the bill is supported by the Department of Conservation and Recreation, as well as the Chesapeake Bay Foundation and the Virginia Conservation Network. This is one of those rare bills that is truly good for both the environment and economic development because it will not only protect and improve streams that are already distressed but allow for development in urban and urbanizing areas, thus relieving the pressure to develop in suburban and rural areas… that is sprawl.

House Bill 684 has been approved by the House Agriculture, Chesapeake and Natural Resources Committee and a  full 100-member House of Delegates and awaits action by the Senate Agriculture, Conservation and Natural Resources Committee.

HOUSE BILL 1375, by Delegate Bob Hull – Requires certain preliminary plats to be forwarded to the appropriate state agency for review within five days of receipt by the locality.

Among the many frustrations home builders and land developers have in Virginia is the long period of time it takes for localities to review and approve or deny applications for preliminary subdivision plans. While Section 15.2-2260 of the Code of Virginia allows localities to require the submission of a preliminary subdivision plat, the same section also requires localities to complete action on the preliminary plat within 60 days of submission. Yet, such review and final approval by localities and state agencies often takes many, many months all across Virginia.

Localities report that some of their delay in the review and approval or denial of preliminary subdivision plans has been the failure of state agencies to conduct their necessary reviews in a timely manner. Section 15.2-2260 requires state agencies, including VDOT, to complete their review within forty-five (45) days of receipt of the subdivision preliminary plat. In follow-up discussions with VDOT and other state agencies on their failure to complete timely review of subdivision preliminary plans, they report that they often do not receive them until 40 to 50 days after submission to the locality.

The STATE AGENCY REVIEW OF SUBDIVISION PRELIMINARY PLAT legislation will simply require a locality that accepts a preliminary subdivision plat for review to forward the same to the necessary state agencies, including VDOT, within five days of receipt of the submission.

House Bill 1375 has been amended and approved by the House Counties, Cities and Towns Committee. By Committee Amendment, the five-day requirements were extended to ten days.






After many years of expressing opposition to new authority for localities to facilitate the transfer of development rights from one location to another in a locality, the HBAV Executive Committee unanimously voted to support TDR legislation crafted by the State Senate START or Transportation Task Force. The measure is Senate Bill 373 and the Senate Patron is Senator John Watkins.

For years HBAV has expressed fear that such new authority for localities could become mandatory and once developments rights were transferred, feared they could be stripped away from property owners. TDR authority for localities has been a priority of localities and the environmental community for over a decade. In previous years, HBAV has successfully blocked the passage of TDR legislation.

Senate Bill 373 assures that the transfer of development rights shall be voluntary on the part of property owners, and once transferred from a sending area that will be designated on a locality comprehensive plan, and by ordinance, to a receiving area that also must be designated on the comprehensive plan, and created by ordinance, is guaranteed. Uses and density transferred voluntarily, and only through administrative process, shall be permanently exempt from any zoning text amendments or map amendments affecting the zoning district initiated by the locality.

The leadership of the House of Delegates and State Senate are hopeful that the legislation will facilitate the transfer of development rights from areas of a locality where roads and water and sewer are inadequate to areas of the locality where essential public services are located and sufficient to support higher density development.

The willingness of HBAV to vacate its long-standing position on TDR legislation is recognition on the part of the HBAV leadership that the transportation infrastructure of the state is in a state of crisis, and that new, innovative and balanced approaches of the issue are being demanded by the leadership of the state legislature this year.

Senate Bill 373 has been approved by the Senate Local Government Committee and awaits action by the full 40-member State Senate.






The leadership of the House of Delegates announced its so-called Sensible Growth Reform Agenda on Friday of this week. It does not include new Adequate Public Facility (APF) authority for localities. After a quick review, it appears that HBAV would be able to support parts of the package, but may have significant concerns with other parts of leadership agenda. The HBAV Legislative Committee will review the package at its Tuesday, January 31st scheduled meeting. Below is a brief summary of the House Republican Sensible Growth Reform Agenda.

HB 1521 (Del. Robert G. Marshall)

– The bill promotes better-managed growth by requiring localities to include road and transportation improvements when preparing their comprehensive plans.  Localities will include transportation improvements, including transit, and their costs in the plans they are required to develop and update every five years.  This bill is similar to HB 1529 (Del. Phillip A. Hamilton).

HB 1513 (Del. Frederick)
– The measure requires localities to submit their comprehensive plans and traffic impact statements to the Virginia Department of Transportation for review.  This will allow the planning professionals at VDOT to offer input on the impact of local zoning decisions on transportation infrastructure.

HB 1528 (Del. Hamilton)
– By requiring localities to include cost estimates of road and transportation improvements included in their comprehensive plans, the bill allows localities to include the costs in determining their proffer collections.

HB 1506 (Del. Athey) – The bill reduces the necessary rate of population increase to allow the acceptance of proffered conditions from 10-percent to 5-percent.  The population increase is to be based on information reported by the United States Bureau of the Census.  Since it reduces the rate of population necessary, it expands the number of localities that would qualify to 254 out of 324 localities. This bill is similar to HB 1520 (Del. Marshall).

HB 1104 (Del. Athey) – The legislation expands the present revenue-sharing fund program for counties to include cities and towns as well.  The bill would increase the match limits and total funding, while also allowing any local contribution to take the form of proffers from developers.  The effect would be to allow localities to use proffers as their match for local revenue-sharing fund projects, thereby giving localities more input into transportation decisions.  This bill is similar to HB 669 (Del. Leo C. Wardrup, Jr.) and HB 681 (Del. Edward T. Scott).

Transportation and Land Use is a dominant theme of the 2006 Session of the Virginia General Assembly and the HBAV Legislative Committee and Lobbying Team is on the ground representing HBAV members’ interests.







On Friday morning of this week, Governor Kaine released his bill that is designed to keep his campaign pledge to grant localities the new authority to deny rezonings based solely on their determination that the local transportation system is inadequate. The Patron of the measure is Republican Bob Marshall of Prince William County, a longtime advocate of APF authority for local governments.

The measure will be assigned a bill number over the weekend and HBAV will be the feature of next week’s HBAV Legislative Bulletin. In a brief review of the just-introduced measure, it appears to be an APF-Road authority measure in its purest form.

NAHB High Production Home Builders Council Comes to the Rescue

The campaign pledge of Governor Kaine to urge the state legislature to grant new APF-Road authority to local governments has been the subject of much prominent reporting by the Washington Post in recent days and weeks. As a result of the reporting of this significant threat to the housing climate in Virginia, the members of the NAHB High Production Home Builders Council have taken notice and have offered to fund, and HBAV has accepted, a boost to the HBAV lobbying team that spends most of every day in the halls of the General Assembly Building (GAB) and State Capitol representing the interest of housing.

As a result of the very timely generosity of the NAHB High Production Home Builders Council, HBAV has added two highly-regarded and well-established lobbyists from the Vectre Corporation, a Richmond based independent business oriented lobbying organization to our team of professional lobbyist for the remainder of the 2006 session of the state legislature.

HBAV greatly appreciates the support of the NAHB Council in our effort to provide safe, decent and affordable housing to all Virginians.






Among the major rules adopted by each General Assembly is a schedule of dates that manages the flow of legislation. Following are the dates of the important deadlines for consideration of legislation during the 2006 session of the General Assembly:

February 14, 2006    Deadline to Consider Bills in the House of Origin
March 6, 2006           Deadline for Committee Action
on Legislation
March 11, 2006         Adjournment




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