- Last Updated on Wednesday, 25 December 2013 16:39
- Published on Wednesday, 25 December 2013 16:39
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With Project FAITH’s requests for dismissal of the case denied last week in court, the suit is expected to go forward once a hearing date can be set between both parties.
Project FAITH’s latest defense, put forward this month through its lawyer Clark Leming, provides a new rationale for blaming the county for Project FAITH’s default due to its inability to commence construction.
The holdup with the Help Center project has always been the issue of funding. Its financial status has remained unclear.
But Leming is now attempting to set aside that issue by replacing it with a new reason to blame the county.
PREVIOUSLY BLAMED COUNTY RE FINANCING
In Leming’s Sept. 26 letter from Project FAITH to the county asking for the hearing in front of the Board of Supervisors, he had blamed the county for Project FAITH’s default for its failure to commence construction by the Aug.1 deadline.
He did that by citing circumstances beyond its control, saying, “specifically certain acts and omissions by the County are the proximate cause of PFI’s inability to meet the performance milestone.”
But in that letter, Leming had contended it had to do with a money issue.
Leming wrote, “These acts and omissions by the County have stifled PFI’s efforts to obtain the financing necessary to commence construction on the project.”
NOW BLAMING COUNTY FOR WITHHOLDING PERMIT
But in Project FAITH’s Dec. 13 reply brief earlier this month and again last week in court, Lemming ignored the money issue and instead shifted the argument to blame the county by alleging it held up the permitting process.
Leming alleged that the county had dragged its heels to prevent Project FAITH from obtaining a building permit, or at least a site and foundation permit, to enable commencement of construction prior to the end of the 60-day period.
The judge appeared to agree that it could be a problem.
At the hearing, it appeared that Project FAITH may have conceded its failure to commence construction by Aug. 1 and is now making its case that it would have commenced construction by the end of the 60-day cure period following the Aug. 1 deadline, if only the county had cooperated.
Whether a cure period was required under the contractual agreements is a key element in Project FAITH’s latest argument that the county is to blame for Project FAITH’s inability to get a permit to commence construction prior to the end of the 60-days following the Aug. 2 default notice.
Project FAITH claims that the county was in control of granting a building permit and dragged its feet by not signing off on a request by the Virginia Department of Transportation to the county for changes to the road entrances.
Those VDOT recommendations were contained in a letter dated Aug. 21, presented as an exhibit by the Project FAITH lawyer.
Judge Ellis appeared interested in that argument, telling lawyers, “There’s a problem with the county being in control of the building permit process.” He added, “It puts the party now seeking reversion in total control. And this court is going to have a problem with that.”
DEED PROVIDES FRAMEWORK FOR BLAMING COUNTY
The legal framework for the ability to blame the county is written into the Deed of Gift in the “Reversion” section. Reversion is the legal term used in the two guiding documents for the county to reclaim the parcel of land if there is a default.
The reversion section of the original Deed of Gift has two clauses. Clause A has to do with “failure to develop,” and is titled as such. Clause B is entitled “Failure to Use Property for the Purposes for which it is granted.”
Clause A, as amended, consists of one of long, sentence and appears below. The language refers to “acts” by the enumerated entities, including “local government(s),” though it does not refer to omissions by those entities, which appears to be what Project FAITH is currently alleging.
Clause A is reprinted in its entirety:
“All rights granted in this Deed shall cease and become null and void and Grantee’s interest along with all improvements and appurtenances shall revert to County if Grantee fails to commence construction of the improvements in accordance with the terms of the Performance Agreement on or before August 1, 2013, provided, however that if such failure is due to events or circumstances beyond Grantee’s control, including, but not limited to fire, wind, storm, strike, unavailability of materials, acts of God orders of Federal, State or local governments or their agencies or their courts, the Property shall revert to the County.”
IT’S ALWAYS BEEN ABOUT MONEY
Since Leming gained traction on that argument, he will likely continue to argue Project FAITH’s latest allegation in future court hearings.
But he is also expected to have to answer questions about whether Project FAITH had the money to bid and award a construction contract, which never took place.
The big issue with the proposed project has always centered on lack of actual funding.
King George’s allegations of breach of contract are bolstered by a recital of facts including Project FAITH’s “lack of responsiveness to county’s request for information.”
Its complaint notes the developer is contractually required to document, “prior to and during construction” that it has “obtained and maintained appropriate funding for the project.”
That didn’t happen.
The complaint notes that a July 1 letter from the county requested such details be supplied. That was a month prior to the Aug. 1 deadline for starting construction.
Instead, the county’s filing states that an Aug. 14 letter in response six weeks later, “sought to obfuscate the issues, avoid responsibility and project blame upon others.”
In addition to the charges of breach of contract, another count in the county’s filing is headed, “Rescission based upon Fraud.” Actions by Project FAITH’s executive director, Froncé Wardlaw are recited in the complaint.
Those have to do with admitted alteration of a letter which the county contends she used to misrepresent the participation by Rappahannock Community College (RCC) as a major tenant in the proposed HELP Center project.
The filing also alleges, “That Wardlaw intentionally altered the date of the RCC letter or directed it to be altered in an effort to conceal the fact that RCC’s commitment to lease space was in question as of February 2013 (and perhaps earlier).”
It contends that Wardlaw’s conduct, “is willful, intentional and malicious in nature, and entitles the county to rescind the Deed of Gift and Performance Agreement,” including their amendments.