Source: Panda Stonewall LLC

Loudoun Office Managing Shareholder Randy Minchew and Senior Land Use Planner Kimberlee Hise (f/k/a Cummings) were involved from start to finish in the development of a natural gas–fueled 778-megawatt combined-cycle generating station that became operational in late May. They assisted our client, Green Energy Partners, from initial planning and land acquisition, through feasibility, zoning, utility planning, and site plan approval over the course of five years.

The combined-cycle generating station is owned and operated by Panda Stonewall LLC, an affiliate of Panda Power Funds. The plant was built by a turn-key consortium composed of the Bechtel Corporation and Siemens Energy Inc. Panda Stonewall can continuously power up to 778,000 homes and will generate a projected $7 billion in direct and indirect economic benefits to the Commonwealth of Virginia and Loudoun County during its construction and its first 10 years of operation.

Using the latest, most advanced emissions control technology makes this plant one of the cleanest natural gas–fueled power plants in the United States. Natural gas is supplied to the plant from two 30-inch gas pipelines that pass through the plant site. The power plant connects to the grid through an existing 230 kV line that traverses the site.

There are many unique attributes to this project, including a deal that Randy, Kim, and Bryan Guidash worked on whereby the power plant secured its critically needed cooling water through purchase of the Town of Leesburg’s wastewater currently being poured into the Potomac River. The reuse of the Town of Leesburg’s reclaimed water for cooling the power plant prevents the discharge of harmful nutrients into the Potomac River and the Chesapeake Bay watershed. Bryan and Kim also worked with our client on securing numerous offsite easements for the reuse waterline between the Leesburg wastewater plant and the power plant.

Source: Perkins+Will

On June 6, 2017, the Fairfax County Board of Supervisors voted unanimously to approve a rezoning and special exception request submitted by Scimores Academy, LLC, to allow construction of the Floris Conservatory for the Fine Arts at the intersection of Centreville Road and West Ox Road south of the Town of Herndon. The approval comes after more than two years of negotiations with landowners and fine arts, educational, and historic preservation organizations.

Situated on five parcels immediately adjacent to Frying Pan Farm Park in an area replete with cultural, recreational, and historic assets, the academy will offer classes in the fields of music, dance and movement, and creative and visual arts to students ages 4–18. The environmentally friendly building, designed by the architectural firm of Perkins+Will, will include specialized dedicated classrooms and studios of varying sizes for both individual instruction and larger groups.

While the site is not located within a Fairfax County Historic Overlay District, it is included within the nationally listed Floris Historic District, and contains numerous contributing and non-contributing structures. During the review process, the applicant’s consultants worked with County staff and the Department of Historic Resources to ensure the project would not result in a de listing of the site’s National Register status. The applicant appeared several times before Fairfax County’s History Commission and Architectural Review Board, and committed to interpretive signage and preservation of the site’s three historic farm buildings.

Cognizant of the site’s location adjacent to a heavily used agricultural park, the project team coordinated with the Fairfax County Park Authority on a number of issues to enhance the visitor experience at Frying Pan Farm Park. These included special event access, landscaping, setbacks, viewsheds, pedestrian and vehicular access, and more. The ultimate layout will provide 58% open space, preserve approximately 32,000 square feet of existing vegetation, and scale changes between the park, surrounding roadways, and the academy building that will allow the property’s rural character to be better understood by visitors.

Walsh Colucci Lubeley & Walsh attorney Andrew Painter represented the applicant in the case before the Board of Supervisors, while attorney Antonia Miller assisted with transactional matters in assembling the properties for the project. By providing a community-builder educational use and cultural facility linking surrounding communities and civic uses, this unique project will help address the need for additional arts education facilities in western Fairfax County, and will help meet the County’s comprehensive planning goals for visual and performing arts.

Source: Equinox Investments/Dewberry Consultants LLC

On June 20, 2017, the Prince William Board of County Supervisors approved a mixed-use project that includes retail (a maximum of 16,800 square feet), self-storage or office (a maximum of 127,200 square feet), and a maximum of 100 townhomes. Pete Dolan and Jessica Pfeiffer worked with the applicant, Equinox Investments, on the approval. The property is located near the intersection of Prince William Parkway and Hoadly Road within the Government Center sector plan area of Prince William County.

The rezoning provides a re-use and redevelopment opportunity. Pete and Jessica along with the applicant worked with County staff and various community groups on the project, which includes high-quality architecture and design elements.

The project also includes on-site and off-site transportation improvements and other proffered commitments (including monetary contributions, phasing, and significant open space).

Source: Public Domain

To provide them security interest in their labors, Virginia contractors, subcontractors, materialmen, and suppliers have long had the right to record liens against the real properties and structures that have been improved as a result of their efforts.[1] That right to lien real property originates from, and remains provided by, a rubric of statutes passed by the Virginia General Assembly. Those statutes set forth the requirements for the memorandum of lien that claimants must provide in order to obtain the benefit of a lien. The memorandum is then recorded in the land records of the locality in which the improved real property lies.[2]

Because the right to a mechanic’s lien originates by statute, Virginia courts have long held that in order to benefit from the rights provided by the General Assembly, claimants must strictly follow the statute’s requirements.[3] Strict compliance with the mechanic’s lien statute, however, has not always been easy, and there are scores of cases in which mechanic’s lien claimants have lost out on the ability to claim lien rights due to deficiencies in their liens.[4]

The Virginia Court system’s long history of requiring strict compliance with the statute may have been turned on its head as a result of a recent decision from the Virginia Supreme Court. In June, the Court issued a unanimous opinion reported as Ulka Desai v. A. R. Design Grp., Inc., 799 S.E.2d 506 (Va. 2017), in which it stated that the use of a form that “substantially complied” with the requirements of the mechanic’s lien statute was sufficient to satisfy the requirements of claiming lien rights. In this case, a contractor recorded a mechanic’s lien for work done on two properties using Form CC-1512 from the Virginia judiciary’s website. The recorded lien form filled out by the contractor did not correctly identify the Owner as a “Trustee” for a holding trust and instead named the trustee in her personal capacity. The person who filled out the form for the contractor also failed to indicate  that he was acting in his capacity as an agent for a corporate claimant, and not in his own regard. For these reasons, the property owner challenged the validity of the mechanic’s lien citing the Virginia Code, which requires a memorandum of mechanic’s lien to list the names of the owners of the property and be verified by the oath of the claimant or its agent.[5] Those challenges were rejected by the Supreme Court, which reasoned that the mistakes on the form were “trifling particulars not materially detracting from”[6] the requirements of the statute and did not prejudice the owner of the property.

The obvious take-away is that, based on this decision, Virginia courts will be more inclined to find that a lien is valid and binding, even if there are obvious errors on the recorded lien. While this new standard may make mechanic’s liens easier for contractors and suppliers to use and enforce, property owners need to be aware that it will make it more difficult for them to defend against mechanic’s liens. Mechanic’s liens that previously would have been deemed invalid will now be enforceable, so long as they “substantially comply” with the statute. And a claimant will have much better grounds to argue that no error on a recorded lien really causes prejudice to the property owner. In our view, this is a substantial change in precedent that may open the door to far more litigation and successful enforcement of mechanic’s liens in Virginia.

This is Morgan McEwen’s first contribution to Virginia’s Land Sense. She is currently a summer associate with the firm and a third-year student at William & Mary Law School. Shareholder Michael Kalish edited this article and can be reached directly by email to discuss Virginia mechanic’s liens and related litigation and how they may affect your rights.

Source: Walsh Colucci Lubeley & Walsh

Another Mushball Tournament is in the books! Like last year, the Land Lawyers made a successful run at the championship. The team won all three games in their division beating Mayer Brown, Proskauer, and Buckley Sandler, which secured them the fourth overall seed in the playoffs. Unfortunately, the team fell in the semifinals to last year’s nemesis and two-time defending champs Williams & Connolly. Some of the sting from loss went away though as we learned that PricewaterhouseCoopers beat Williams & Connolly in the finals.

This year’s event was even grander with a D.J., food trucks (the Maine Lobster Roll truck was the big favorite), massage tent, open bar, and activities for kids. Even a few local celebrities, such as Grant Paulsen and Johnny “Cakes” Auville from 106.7 The Fan sports talk radio, were on hand.

20 law firms and other companies participated in the tournament and I am still in amazement at how well our team does considering we are facing companies much larger than ours, meaning they have more players to pick from.

Thank you to the following Mushball players for sacrificing their Saturday to the scalding hot sun and the Mushball Gods: Mark Goetzman, Ed Encarnacion, Matt Westover, Bill Fogarty, Bob Brant, Antonia Miller and husband Ben, Taylor Berry and boyfriend Nick, Kathleen Smith’s husband Mark, Erin and Jeff Thiebert, Lorri Holland’s husband Jim, Mike and Paula Romero, Stephen Hall, and summer associates Lauren Riley and Gabe Ibrahim.

Some highlights from the tournament:

• Matt W. crushing home runs at will. We stopped counting how many he hit.
• Mike R. doing his impersonation of a human vacuum cleaner at third base.
• Antonia punishing the mushball with line drives. Pretty sure she thought she was smashing tennis balls back in her college days.
• Bill Fogarty saving my arm from falling off by taking over at pitcher in the last game.
• Lauren, Taylor, and Erin anchoring the defense at catcher as well as making sure I pitched the ball correctly.
• Gabe, Stephen, and Matt A. securing the right side of the outfield
• Bob Brant gobbling everything thrown to him at first base.
• And Mark Goetzman with the hardest job of all: Manager. Mark motivated us with a pregame speech that went something like “WIN!!!! … or else you’re all fired!!!!” (Okay so he didn’t really say that.)

A special thanks to our awesome support team that came out to cheer us on: Lorri, Kathleen and the Smith kids, the Thiebert kids, Baby Brant, Baby Westover, and, last but not least, Taylor’s puppy Atlas.

Can’t wait till next year! Way to go, Land Lawyers Mushball Team!

Source: RLPS Architects

On May 10, 2017, Falcons Landing, a Military Life Plan Community (also commonly referred to as a Continuing Care Retirement Community), received approval from the Loudoun County Board of Supervisors to construct an additional 114 independent living units in a hybrid housing model and an 18-bed memory care facility on its 33-acre property in the Cascades Community. The hybrid independent living units will supplement the property’s existing apartment and cottage style independent living units. The memory care facility will be the first of its kind at Falcons Landing. These new structures will serve as keystone elements for the future growth and success of Falcons Landing.

Falcons Landing is operated by the Air Force Retired Officers Community, a non-profit organization dedicated to providing quality housing designed to promote health, security, happiness, and usefulness in longer living. The AFROC Board pursued redevelopment after concluding that the existing housing stock and health care amenities were insufficient to meet future demand. Falcons Landing opened in 1996. Over the past 20 years, significant changes have occurred in the life care marketplace that require action by all existing life care communities to remain relevant and competitive. For example, new life care communities feature open floor plans, higher ceilings, and more open space for residents to enjoy. The challenge for the AFROC Board was to find the delicate balance of preserving the beauty of Falcons Landing while accommodating the community’s future needs. This goal was achieved through the recently approved application.

The redevelopment proposal required approval of a zoning concept plan amendment and special exception application that would amend the original zoning concept plan amendment approved in 1993. Walsh Colucci provided the land use expertise and support that helped Falcons Landing achieve its goal. This effort required numerous community outreach meetings, both within and outside of Falcons Landing, and creation and evaluation of the necessary application approval documents.

The residents of Falcons Landing embody the determination, sacrifice, and honor that defines their community. It would be difficult to find a more genuine and decent group of people in this country. While the process was not easy, the AFROC Board and Falcons Landing residents stood resolute behind their plan and were able to achieve success in their efforts to sustain Falcons Landing for decades into the future.

Source: Public Domain

Following last month’s narrative summary of the 2017 General Assembly (found here), an updated list of housing and development, transportation, environmental, and economic development bills that were passed by the General Assembly and signed into law by the Governor is attached here.

All legislation will become effective July 1, 2017, unless otherwise noted. The summaries contained in the list were prepared by the  Division of Legislative Services of the General Assembly. The text contained in this report is not the official text of the Code of Virginia (the “Code”). The full text of the Code and the legislation summarized herein is available here.

Source: WCLW

Back by popular demand! After a one-year absence, Larry & the LandLawyers will once again take their rightful place on stage at the Black Cat as part of Banding Together – Battle of the Law Firm Bands. Larry & the LandLawyers is a band comprised of three Walsh Colucci attorneys, John Rinaldi, Mark Goetzman, and Mike Kieffer, and one friend/client of the firm, Larry Clark of Donatelli Development.

This year marks the 14th anniversary of Battle of the Bands, and the 8th appearance of Larry & the LandLawyers. This year’s event will feature 17 bands representing law firms across the Washington metropolitan area. Money raised through admission fees will be donated to Gifts for the Homeless, a non-profit organization comprised of lawyers and staff from area law firms and other legal organizations that volunteer in their spare time. Fans can also make donations to GFTH by “voting” for their favorite acts online. GFTH has been serving the homeless of Washington, D.C., since 1986. The money raised through Battle of the Bands is used by the organization to serve area shelters and purchase new clothing for homeless men, women, and children.

For some insider information on the upcoming event, I caught up with John, Mark, and Mike.

John Rinaldi Litigator in our Prince William Office by day, bassist by night

On why he is excited to be back at Battle of the Bands after a one-year hiatus: “We started playing together at the Black Cat, and after missing last year due to a scheduling conflict, it is good to be back.”

On a memorable past Battle of the Bands performance: “One year my equipment decided to stop working in the middle of our set so I had to do some quick surgery on stage.”

On how the band selects their songs: “It’s fun to pick songs that are challenging for Mark to sing and fall outside his comfort zone. But no matter what we pick, he always does a great job and has fun with it.”

Mark Goetzman Transactional attorney in our Arlington Office by day, guitarist and vocalist by night

On why he is excited to be back at Battle of the Bands after a one-year hiatus: “We all enjoy participating in this event and playing at this venue. Also, all of the proceeds go directly to a very worthwhile cause.”

On the preparation that goes on behind the scenes: “We usually rehearse about five or six times. It gives me the opportunity to learn new songs and play with some very talented musicians. They are the talent. I’m just the looks!”

On his musical influences: “I grew up listening to local bands with an R&B influence. My favorites were The Nighthawks, The Slickee Boys, and The Skip Castro Band, and that’s the style I enjoy playing.”

Mike Kieffer Transactional attorney in our Arlington Office by day, guitarist and vocalist by night

On why he is excited to be back at Battle of the Bands after a one-year hiatus: “The Black Cat is a great place to play. The stage is great and the room is always fun and loud and packed with people. We have some great memories of performances there. One year, Mark sang Ozzy. Another time, I remember enjoying John looking like a deer in the headlights as he tried to fix his broken rig during our opening number.”

On how his musical past helped to get him where he is today: “I was close (well, maybe not that close) to becoming a professional musician for around 10 years. I knew Larry from a previous job. Larry introduced me to John, and we all started jamming together. That was my first connection to Walsh Colucci, which ultimately helped me to end up here after finishing law school.”

On what audiences can expect to see at this year’s show: “This year we will be playing a lot of new songs. We will also be playing the most difficult song we have ever played and, no, it is not a Taylor Swift song.”

Battle of the Bands will be held on June 22 at the Black Cat. Doors open at 6:30. Admission is $10 per person. All attendees are encouraged to support Larry & the LandLawyers by voting early and often with their donations!

Source: Daniel Peck

Nick Cumings, who joined the firm this past March, works in the Land Use and Zoning Practice Group in the Arlington office. He attended the College of William and Mary for undergrad and law school (Tribe Pride!). After his long stay there, he considers himself an expert on where to stay and what to do in Williamsburg. Prior to law school, his favorite employment experience was working summers as a short-order cook/snack bar employee at a country club in Connecticut. After Nick graduated from law school, he clerked for Fairfax Circuit Court Judge Michael F. Devine for one year.

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

NC: I grew up in Redding, Connecticut, in southwest Connecticut about an hour and a half outside of New York City. I’ve lived in Fairfax since 2011, moving here after I finished college and law school at William and Mary.

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

NC: In high school I thought I wanted to work in politics, but by the time I was in college, I grew more interested in law. Working summers at a country club led me to consider hospitality (managing a club) or even cooking as a career.

TLL: What interested you about the legal field?

NC: I was always drawn to courses that focused on research, writing, and a lot of reading. Beyond the usual love of television shows where everyone seemed to be a lawyer (like “The West Wing”), I always felt that law would be something that played to my strengths.

TLL: Are you involved with any organizations?

NC: I am active in the Fairfax Bar Association, where I am currently a board member with the Young Lawyers Section and serve on the convention planning committee for the fall convention.

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

NC: Right now I am looking forward to getting out on the golf course this summer, but I also enjoy walking with my two beagles and love cooking — especially grilling or smoking outside. I love sports, especially football (both college and NFL), which tends to dominate my fall schedule.

TLL: What is your favorite meal?

NC: Definitely steak, though as someone with a passion for cooking (and eating) it’s hard to choose. My favorite barbecue dishes are ribs and turkey. In the winter, when I’m not cooking outside, I enjoy making simple Italian-American comfort foods and roasting chicken or beef.

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

NC: I have a long travel wish list, but I have always wanted to take a road trip across the United States and focus on national parks, especially out west.

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

NC: The biggest difference for me thus far, besides changing practice areas, has been the wonderful people and active, busy lifestyle. There is a lot of energy here and a great culture.

TLL: Thank you, Nick!