Tim Clewell rejoined the Firm full-time in August 2017 as a transactions associate after graduating from the Georgetown University Law Center. He first worked with the Firm as a part-time law clerk assisting the transactions practice group. Prior to joining the Firm, Tim worked as a paralegal assisting with real estate litigation for the law firm Rich, Rosenthal, Brincefield, Manitta, Dzubin & Kroeger, LLP. Tim also worked as an adjunct professor at Northern Virginia Community College where he taught Introduction to Philosophy, Ethics, and Logic. Tim and his wife Natalie moved to Virginia from Georgia and have a two year old son Quentin, and a Jack Russell terrier named Mandy. They enjoy living in Old Town Alexandria and spend lots of time visiting the waterfront and local shops.

In this month’s Employee Spotlight, we will learn a lot more about Tim. Read on!

The Land Lawyers: Are you from this area? And if not, where did you grow up?

TC: I grew up in Pennsylvania, about 45 minutes north of Philadelphia, but moved to Bath County, Virginia the summer before my senior year of high school. I moved around a lot since then (GA, FL, TN, GA again), but I always hoped to find my way back to Virginia. We now live in Alexandria and love it!

TLL: What did you think you wanted to be when you were younger?

TC: My grandmother told me that when I was young I would ask why something was the way it was. She would give me some answer and I would respond with a list of reasons why that couldn’t be the case. My family thought I should be a lawyer, but it took me a while to get there; I just wanted to keep asking questions. I also loved to read and write, so anything I settled on had to include those activities in the description. Philosophy seemed the obvious choice at the time and when I enrolled as a freshman in college I declared that as my major. But law school was always in the back of my mind as something I may eventually like to do.

TLL: What interested you about the legal field?

TC: As a grad student in philosophy I spent a lot of my time trying to poke holes in other people’s work. Philosophy papers and conferences can be as adversarial as legal briefs and trials. The dialectic is fun and important, but I prefer looking for the common ground. For a number of reasons I determined that an academic career was not for me, but I gained a clearer understanding of what I wanted to do. While studying ethics I discovered that the common law is fertile philosophical ground, and contracts in particular can teach us a lot about human cooperation. A good contract can create a great deal of value for multiple parties, and success is when everyone walks away happy. I began to look into what sort of work a transactional attorney does, because it seemed like the sort of work I wanted to do. In the meantime, my wife and I decided to move to Northern Virginia. I quickly realized that the intersection of governmental, business and civil sectors of society found in the Northern Virginia and DC area creates a fascinating place to practice law. At that point my choice was made. Luckily there are a lot of law schools in the area to choose from, and I applied with the intention of focusing primarily on transactional law.

TLL: What aspect of your role do you enjoy the most?

TC: I love that we are helping people to realize their vision. When all is said and done, you can go and look at the development you helped make a reality. Our work has a practical and beneficial impact on the area where we live, and I appreciate that fact whenever I am driving and see new projects underway.

I also love the problem solving aspect of the work. Each client has a unique set of issues that need to be addressed, and it’s very rewarding when you are able to distill those issues down and provide practical solutions. This was one of my favorite aspects of teaching as well, and I’m glad that it is a core of what we do as attorneys.

TLL: Are you involved with any organizations?

TC: I volunteer as a tutor and mentor for Wright to Read, a non-profit in Alexandria that teams you up with a student from the Alexandria City Public Schools who you work with on a long-term basis. I’ve been mentoring my student Jeremy for almost three years and it has been amazing to watch him grow, both as a student and an individual.

Mike Coughlin has also been getting me involved in Rebuilding Together Alexandria. Although I am just getting started, I am very excited to be a part of an organization that has helped so many people to stay in their homes by making repairs that they would not otherwise be able to afford.

TLL: Aside from a very busy schedule, what do you do for fun?

TC: Spending time with my wife Natalie and 15 month old son Quentin are at the top of my list. I also try to get outdoors when I can to ski, hike, and mountain bike. Saturdays in the fall are for UGA football. When all else fails, I usually have several books going at any given time.

TLL: Where’s the best place you’ve traveled to, and why?

TC: This is a tough question. My wife and I love to travel, although it has been a while since we’ve had the chance to go anywhere. Usually when planning our trips we carve out a couple of days in a small town away from any major cities. These side trips almost always result in our meeting great people and having some unique adventures. So I would say our favorite place is where the locals are, no matter the country.

TLL: What part of the world would you most like to visit?

TC: Another tough question, but I would say sailing around the Greek islands is on my bucket list. There is so much beauty, history, and culture in one place.

TLL: Words to live by — What are yours?

TC: “Without deviation from the norm, progress is not possible.” – Frank Zappa. I don’t know if they are words to live by, but it’s something that I think often gets forgotten, and I never miss an opportunity to quote Zappa.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?

TC: The people! Every day I get to work with people who love what they do and who are very good at it. Also, everyone is very friendly and generous with their time. It is a great environment and I get to learn from the best!

TLL: Thank you, Tim!

 

Certainly, as an employer, you know it is important to properly classify those working for you as either independent contractors or employees. But did you know that more is riding on that classification than just abiding by federal and state tax laws?

If a worker is your employee, you are responsible for paying Social Security, unemployment insurance, Medicare, and possibly other costs like workers’ compensation insurance for the employee. At the end of the tax year, you are responsible for compiling all necessary payroll reports, including W-2 forms.

If a worker is your independent contractor, you are not responsible for any of the above taxes or payments, and the only added paperwork is the issuing of a 1099 to the independent contractor at the end of the tax year, assuming they earned more than $600.

If you have claimed an employee as an independent contractor, there are penalties involved with such misclassification. The Internal Revenue Service may hold you responsible for employment taxes for that worker, and there are even steeper penalties for “willful neglect” under Internal Revenue Code Section 3509.

But in The Reading and Language Learning Center v. Sturgill, Case No. CL-2015-10699 (August 4, 2016) out of Fairfax County, Judge John M. Tran gave Virginia employers more to worry about than IRS penalties. He held that misclassifying employees as independent contractors violates Virginia public policy and is grounds for voiding any noncompete and nonsolicitation provisions contained in the employer’s agreements with its workers — even if the misclassification is unintentional.

This ruling raises the stakes of misclassifying workers because it essentially states that independent contractors will only be bound by noncompete agreements if they have been properly classified as independent contractors. The Fairfax Circuit Court had no problem finding that the consultant in Sturgill should have been classified as an employee and, ultimately, that the noncompete agreement the consultant had signed was unenforceable.

As an employer, the decision of whether to classify your worker as an employee or an independent contractor rests on a multi-factor test that revolves around the degree of independence and control asserted by the worker.

The IRS lists 20 factors to consider for federal tax purposes, which can be broken down into the following main categories:

• Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
• Financial: Are the business aspects of the worker’s job controlled by the payer? (These aspects include things like how the worker is paid, whether expenses are reimbursed, and who provides tools or supplies.)
• Type of Relationship: Are there written contracts or employee-type benefits (e.g., a pension plan, insurance, or vacation pay)? Will the relationship continue? Is the work performed a key aspect of the business?

Businesses must weigh each of these factors when determining how to classify workers and there is no one-size-fits-all formula. Note also that the classification of workers for federal tax purposes may not be the same as the classification for state law purposes. We have routinely seen these issues arise not only at the front end of the relationship between an employer and its workers, but also when employers transition workers from full-time to part-time work in the hopes of cutting down on benefits.

If you are facing these issues, please know our Firm can assist in the analysis, as well as draft appropriate independent contractor and employment agreements that can survive a challenge to enforceability.

On August 31, 2017, the Virginia Supreme Court ruled that landowners who were issued a Zoning Certificate of Compliance from the Richmond County Zoning Administrator had obtained a vested right to use a garage approved by that certificate, even though the approved structure violated the County’s Zoning Ordinance. Bd. of Supervisors of Richmond Cty. v. Rhoads, Rec. No. 161209, 2017 Va. LEXIS 110 (Aug. 31, 2017).

The landowners in Rhoads faced an unfortunately common situation: a zoning administrator or other county official approves a permit that should not have been granted, but months later and after a structure has been built, the locality orders its removal because it violates the local zoning ordinance. Historically, the cost of the locality’s error has been borne solely by the landowner.

In Rhoads, the landowners applied for a Zoning Certificate of Compliance to build a two-story unfinished detached garage on their property in Richmond County in November 2013. Included with the application were architectural drawings of the proposed building. That same week, the Zoning Administrator visited the property, on which there was at the time a one-story primary dwelling. Following the inspection, the Zoning Administrator checked the box for “Approved” on the application and issued a certificate of compliance. The landowners relied on that approval and built the garage at a cost of approximately $27,000. The garage was finished in June 2014.

The next month, a new Zoning Administrator informed the landowners that the garage violated the County’s Zoning Ordinance because it was taller than the primary structure. On September 24, 2014 – 310 days after the certificate was originally granted – the Zoning Administrator issued a written notice of violation and ordered removal of the garage.

The garage was indisputably taller than the one-story home on the property, and was indeed in violation of the Zoning Ordinance. The landowners argued, however, that they possessed a vested right in the illegal structure because they had received and relied upon the zoning certificate. As noted, for many years landowners have borne the sole responsibility for the consequences of a local government’s zoning mistake. Even if a local government official’s error caused the landowner to spend thousands of dollars in reliance on that erroneous decision, there was essentially nothing the landowner could do except comply.

In Rhoads, the Virginia Supreme Court affirmatively acknowledged that Virginia Code Section 15.2-2311(C) has altered this harsh result. By its terms, Section 15.2-2311(C) creates a vested right — notwithstanding the terms of a zoning ordinance — when three elements are present: (1) there has been a “written order, requirement, decision or determination made by the zoning administrator or other administrative officer”; (2) at least 60 days have passed from that written action; and (3) the recipient has materially changed its position “in good faith reliance on the action of the zoning administrator.” The Court found that in issuing the zoning certificate, the Richmond County Zoning Administrator had necessarily made a determination that the landowners’ building plans complied with the Zoning Ordinance and had therefore rendered a “decision” or “determination” under Section 15.2-2311(C). Moreover, it was undisputed that the decision was not changed within 60 days after the issuance of the certificate, and that the landowners materially changed their position in reliance on that decision by spending $27,000 building the garage. Thus, the Court concluded that the landowners’ right to use their property in the manner approved pursuant to the zoning certificate had vested and could not be affected by the County, even though the approval was plainly inconsistent with the requirements of the County’s Zoning Ordinance.

Following the Supreme Court’s decision in Rhoads, the cost of such administrative error may no longer have to be borne by the property owner alone.

The Envision Loudoun Comprehensive Plan review and update continues along the course set forth in the plan charter adopted by the Board of Supervisors in 2016. The plan process includes extensive community participation. The Round 1 Listening and Learning Workshops were held in January 2017 and the Round 2 Envision the Future Workshops were held during June 2017 to elicit community input prior to development of plan policies and plan language. The results of these workshops were published in the draft “Visions, Goals and Objectives” report, which was presented in August to the 28-member Stakeholders Committee, composed of residents and community stakeholders concerned with Loudoun planning. The Board of Supervisors created the Stakeholders Committee to help guide the plan development process and provide critical feedback.

The report states that the community focus is primarily on the following topics: balancing residential and nonresidential development, ensuring adequate infrastructure and public facilities, ensuring quality development compatible with surroundings and sensitive to the environment, maintaining existing rural environments, conserving and preserving natural, cultural, and historic resources, ensuring a well-planned transportation system that matches the land use plan, and planning for Metrorail service.

At its August meeting, the Stakeholders Committee organized three subcommittees to delve into critical plan topics: economic development, housing, and revised General Plan (the current Comprehensive Plan) carryover. These subcommittees are beginning to meet in September. Since the June community engagement workshops, the Stakeholders Committee, which meets twice per month, has been reviewing and addressing transportation, place types, the suburban policy area, infill, redevelopment and reinvestment, and the transition policy area and rural policy area.

The new Comprehensive Plan will result in a new General Plan and a new Countywide Transportation Plan, both containing guidelines for the growth and development of Loudoun over the next 20 years. The Stakeholders Committee will continue to meet throughout the remainder of 2017 before another round of community engagement scheduled for January 2018. Once a draft plan is written, public hearings and deliberations will occur before both the planning commission and the Board of Supervisors prior to plan adoption. Staff at the Firm’s Leesburg office will continue to monitor and participate in this major rewrite of Loudoun’s Comprehensive Plan. Please contact the Leesburg office with any questions about the new plan, the process, or the plan’s effect on specific property in Loudoun.

The Prince William land use team wants to provide an update on happenings around Prince William County including the initiation of small area plans and recent entitlement approvals.

Small Area Plans

The Prince William Board of County Supervisors initiated an update to the County’s Comprehensive Plan, which includes the creation of small area plans. The purpose of these small area plans is to guide development and direct growth. Components of the small area plans may include strategic plan implementation, design guidelines, economic development analysis, level-of-service analysis, and implements/phasing plans. There are five current small area plans: Dale City, Innovation Park, North Woodbridge, Parkway Employment Center, and Route 29. Future small area plans, which include Independent Hill, Triangle, Yorkshire, and Fairgrounds/New Dominion, will be created after the current plans have been completed. More information, including dates of upcoming meetings, can be found here.

Recent Firm Entitlement Approvals

The Firm’s land use team recently obtained County approvals for the following projects:

• Image 1: Princeton Wood Self-Storage Zone Special Use Permit for Self-Storage Center: Special use permit to develop a 1.6-acre pad site in the Princeton Woods Shopping Center. This includes a FAR of 1.46 and a total floor area up to 105,000 square feet. (Represented by Jay du Von and Marian Harders)
• Image 2: Bull Run Sign Modification Special Use Permit Amendment: Upgrades for an existing two-color electronic changeable copy sign to allow for a full-color sign panel at the existing Bull Run Plaza shopping center in the Gainesville Magisterial District. (Represented by Jay du Von and Jessica Pfeiffer)
• Image 3: Lindsay Automotive Proffer Amendment and Special Use Permits for Lindsay Collision Center, Lindsay Volkswagen, and Lindsay Chrysler Dodge Jeep Ram: Special use permit and proffer amendment approvals on behalf of Lindsay Automotive in the Route 28 corridor near Maplewood Drive that will provide for redevelopment to help vitalize this area of the Coles District. (Represented by Jay du Von and Marian Harders)
• Images 4-6: Pavilion Capital — Autobell, Taco Bell, and Firestone Special Use Permits: On Route 28 in the Brentsville Magisterial District. (Represented by Pete Dolan and Jonelle Cameron)
• Image 7: Sheetz Dale City Special Use Permit: Special use permit for a new Sheetz gas station at the northeast corner of Dale Boulevard and Queensdale Drive in Dale City. Sheetz will redevelop the site, which was vacated by a fuel facility. (Represented by Jay du Von and Marian Harders)
• Image 8: Mia’s Meadow Rezoning: Rezoning 19.8 acres from A-1 (Agricultural) to PMR (Planned Mixed Residential). The community known as Mia’s Meadow will consist of up to 45 single-family detached units and is located at the southeastern intersection of Minnieville Road and Spriggs Road. (Represented by Jay du Von and Marian Harders)
• Image 9: Haddad Group Rezoning and Car Wash Special Use Permit: Rezoning from A-1 (Agricultural) and M-1 (Heavy Industrial) to B-1 (General Commercial) along with an associated car wash special use permit on Route 29 in the Brentsville Magisterial District. (Represented by Pete Dolan and Jonelle Cameron)
• Stonebridge at Potomac Town Center Proffer Amendment and Rezoning: Proffer amendment and rezoning approvals at Stonebridge at Potomac Town Center to relocate residential units within a Planned Mixed District, remove an office component from the PMD, and allow for a high-rise office building that was previously located in the PMD area. (Represented by Jay du Von and Marian Harders)
• Featherstone Square Proffer Amendment: Proffer amendment to add three properties to the Featherstone Square development, located a short distance off Route 1 on Featherstone Road. (Represented by Jay du Von and Marian Harders)

 

Image Sources:
• Image 1: CE Group, LLC/The Engineering Groupe
• Image 2: The Rappaport Companies/jaf Design Studio, PLLC
• Image 3: Lindsay Holdings, LLC/The Engineering Groupe
• Images 4-6: Pavilion Development Group/Trey Lucas Architecture, Core States Group, SGA Design Group, P.C.
• Image 7: Sheetz, Inc./Bohler Engineering
• Image 8: N.V.P., Inc./Land Design Consultants
• Image 9: Haddad Group, LLC/ Trey Lucas Architecture

 

 

Source: Kaiser Permanente & Gresham, Smith, and Partners

 

Pete Dolan and Jessica Pfeiffer in the Firm’s Prince William Office worked with the landowner, Gene Siegel with Landservices, Inc., to obtain a proffer amendment approval to allow for Kaiser Permanente’s proposed medical office building. The approximately 35,000-square-foot building will be located on Heathcote Boulevard near its intersection with Route 15. This new building, not far from the Novant Health UVA Health System Haymarket Medical Center, will add to the evolving healthcare campus in this part of Prince William County. The County’s Department of Economic Development designated this project as a targeted industry under their medical networks category based on an estimated $20 million investment and approximately 50 new jobs. Kaiser Permanente hopes to occupy this building in early 2019.

The St. James, a highly anticipated 450,000-square-foot mega sports complex, will open its doors in September 2018. The indoor complex, located near the intersection of I-395 and I-495 in Fairfax County, will offer a combination of sports and wellness venues and programming, lifestyle amenities, and family-centered activities the likes of which have not been seen under one roof in this area before. It was founded by native Washingtonians Kendrick Ashton and Craig Dixon in partnership with Cain International, a global private equity firm specializing in real estate, retail, media, and entertainment investments whose board includes CEO Jonathan Goldstein and Todd Boehly, an owner of the Los Angeles Dodgers.

Our very own Lynne Strobel and Inda Stagg led the zoning approval process for The St. James by engaging the Fairfax County Zoning Administrator in early and thorough discussions regarding the classification of all uses within this unique facility. This initial detailed process resulted in a determination that the mega sports complex could be considered by the Board of Zoning Appeals as a Special Permit in lieu of consideration as a Special Exception by the Board of Supervisors, which streamlined the zoning process and resulted in a successful outcome. Lynne and Inda continue to be involved in every step of this exciting project.

The St. James will include:

• FIFA regulation-sized turf field with 65-foot-tall roof clearance
• Two National Hockey League regulation-sized ice rinks, plus a hockey skills training center with skating treadmill
• Four full-length basketball courts convertible to nine volleyball courts
• 50-meter Olympic regulation-length competition pool
• Six batting cages with pitching machines, convertible into multipurpose training venue
• Eight squash courts
• Seven golf simulators
• Gymnastics training center with competition spring floor, deep foam training pits, Tumbl Trak, rod floors, and in-ground trampolines
• Spa with nine treatment rooms and a cryotherapy chamber
• Health and sports medicine center
• 50,000-square-foot health club with cardio and strength training equipment, spinning, group fitness and yoga rooms, and a “high-performance training center”
• 20,000 square feet of obstacle courses, zip lines, climbing structures and walls, trampoline zones, virtual reality, a “gaming theatre,” and party rooms
• Indoor water park with 6,000 square feet of slides, dumping buckets, and sprayers
• Clothing and apparel boutique
• 900 parking spaces

Walsh, Colucci, Lubeley & Walsh is proud to announce that 11 of the Firm’s attorneys have been selected by their peers for inclusion in The Best Lawyers in America® 2018. The attorneys who were recognized by Best Lawyers® and their areas of recognition are:

• Martin D. “Art” Walsh: Business Organizations (including LLCs and Partnerships); Closely Held Companies and Family Businesses Law; Land Use and Zoning Law; Real Estate Law
• Nan E. Walsh: Land Use and Zoning Law
• Thomas J. Colucci: Real Estate Law
• Michael D. Lubeley: Land Use and Zoning Law; Litigation — Land Use and Zoning; Litigation – Real Estate; Real Estate Law
• David J. Bomgardner: Real Estate Law
• William A. Fogarty: Real Estate Law
• John H. Foote: Land Use and Zoning Law; Litigation — Land Use and Zoning; Litigation — Municipal; Municipal Law; Real Estate Law
• H. Mark Goetzman: Real Estate Law
• J. Randall Minchew: Land Use and Zoning Law; Real Estate Law
• Lynne J. Strobel: Land Use and Zoning Law; Real Estate Law
• Garth M. Wainman: Commercial Litigation; Litigation — Real Estate; Real Estate Law

Best Lawyers® is based on a peer-review survey in which more than 50,000 leading attorneys provided more than 6.7 million detailed evaluations on the legal abilities of other lawyers in their practice areas. Inclusion in Best Lawyers® is considered a singular honor.

Caroline Herre, who joined the firm this past July, works as a Land Use Planner in the Arlington office. Prior to joining the Firm, she worked as a summer intern at the District of Columbia Office of Planning. As a summer intern, she worked with the Citywide planning team, researched the financial feasibility of mixed-use and joint-use developments, and helped compile a report on D.C.’s housing supply. Caroline also participated in community outreach efforts and neighborhood transportation studies with a focus on creating access to amenities for all D.C. residents. In addition to D.C., she also interned in her hometown at the City of Norfolk’s Planning Office and, more recently, at the City of Alexandria’s Historic Preservation Department. Caroline graduated from the University of Virginia School of Architecture with a master’s degree in Urban and Environmental Planning. In this month’s Employee Spotlight, we will learn a lot more about Caroline. Read on!

The Land Lawyers: Are you from this area? And if not, where did you grow up?

CH: I grew up in Virginia, but not around here. I’m from Norfolk and I spent a good amount of time on the Eastern Shore of Virginia as well.

TLL: What did you think you wanted to be when you were younger?

CH: Oh it probably changed daily – basketball player, teacher, veterinarian, photographer. At one point I think I wanted to be a doctor until I watched my dad in surgery (he’s a cardiologist) and I passed out. Nothing really stuck until college.

TLL: What interested you about the planning field?

CH: I studied economics for my undergrad degree, but I have always been drawn to public service and environmental advocacy. I worked closely with the architecture school’s chair of the urban planning department in UVA’s community garden, and he encouraged me to take classes in planning. When I got to the architecture school, I loved being surrounded by such a mess of creativity and I got interested in projects that combined my econ background and graphic design – like geographic information systems mapping.

TLL: What aspect of your role do you enjoy the most?

CH: I’ve only been here for about two months, but I’ve loved it when I get to use the graphic design skills from grad school by helping translate technical drawings and zoning ordinances into something that clients and citizens can understand and respond to.

TLL: Are you involved with any organizations?

CH: Around here, nothing yet, but I plan on getting back involved in local planning efforts in D.C. (I live in Columbia Heights).

TLL: Aside from a very busy schedule, what do you do for fun?

CH: I love playing pickup basketball at the courts in my neighborhood, riding my bike around the city (I also commute to work on my bike!), and hiking. My housemates are a pretty nerdy bunch, so we play a lot of board games and are starting a book club!

TLL: Where’s the best place you’ve traveled to, and why?

CH: I spent a summer in Chile studying Spanish and the health care system, so I got to travel around quite a bit in the region and worked in a vineyard. By far my favorite was the Atacama Desert — the driest spot on earth — and the sand hills there. People get pretty crafty when it hasn’t rained for a century, so I got to try sand boarding (like snowboarding but in sand).

TLL: What part of the world would you most like to visit?

CH: There are so many places I haven’t been — but I’ve always wanted to go to the national parks out west.

TLL: Words to live by: What are yours?

CH: I don’t think I’ve been asked this before, so I’m not sure! Two things, though: I try never to take myself too seriously, and I always make time to have coffee (or tea!) with friends new and old.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?

CH: From the very beginning, everyone here has been invested in helping me learn the ropes, which made the transition to this job so easy. I work on something different and interesting every day with some incredible people. Definitely a great place to work.

TLL: Thank you, Caroline!