The Land Lawyers Blog

Employee Spotlight

Posted on by thelandlawyers
Michael Kalish, Litigator

A native of Fairfax County, Michael currently resides in the greater Herndon area. He graduated from Virginia Tech with a degree in finance and thereafter matriculated to Seton Hall University’s School of Law. After law school, Michael obtained a position as a law clerk to Judge LeRoy Millette of the Circuit Court of Prince William County. As clerk to Judge Millette, he was exposed to the inner workings of the court system and was given the daily opportunity to witness trial presentations and oral arguments. Michael believes this experience was invaluable in his career as an attorney as it provided an immediate education of practical legal knowledge.

In 2007, at the conclusion of his clerkship, Michael was offered a position at Walsh Colucci where associate attorneys are given the immediate opportunity to work directly with clients and have a meaningful effect on litigation matters. Since joining the firm, Michael has worked primarily with the firm’s litigation, business dispute resolution, and commercial transaction practice groups representing businesses, non-profit organizations, and individuals. Michael has representative experience with commercial and complex litigation in the state and federal courts of Virginia, general corporate representation, construction disputes, real estate, zoning and other real property disputes, and transactional work. In January 2014, Michael was named a Shareholder of the firm.

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

Michael Kalish: I was born in Alexandria and raised in McLean. I went to McLean High School. Aside from three years at law school in New Jersey, I’ve always lived in Virginia.

TLL: What interested you about the legal field?

MK: I never really thought about law school until I took a business law class as part of my course work at Virginia Tech. That was my first exposure to reading actual case opinions and writing argument briefs in support of a position. I enjoyed the research and writing component and the argument presentation required by that class. I figured that if law school was anything like that course, then it was something I was interested in pursuing.

TLL: Are you involved in any community organizations?

MK: I currently serve as pro bono counsel and a director on the Prince William County Chamber of Commerce’s Board of Directors. I also a volunteer as a t-ball coach for my kids’ youth league teams.

TLL: You work primarily with the firm’s litigation, business dispute resolution, and commercial transaction practice groups. Explain what type of issues you handle.

MK: Many, if not all, of the matters I work on involve some aspect of a property rights or contractual claim, or assisting individuals and businesses avoid them. Attorneys with litigation experience have the benefit of imagining the worst-case scenario in many circumstances. I try to apply that experience to the transactional matters I assist with as well. With respect to my litigation case load, those matters tend to involve claims upon ownership or use of real property, or contract claims between vendors and owners, or businesses and their trade counterparts or employees. No matter what the nature of the dispute, though, the first question I always ask is: What is your goal in resolving this dispute?

TLL: How long have you been working for the firm?

MK: It will be 10 years in August 2017.

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

MK: With my kids’ ever heavier sports and social schedules it is tough to get out much. But when I can, I enjoy racquetball, all Virginia Tech Hokies sporting events, and getting out to new restaurants, breweries, and vineyards across Northern Virginia with my wife, Kate.

TLL: Do you have a hero or heroine?

MK: William M. Gaines.

TLL: What is your favorite meal?

MK: Lasagna. This, by definition, means meat lasagna with spicy sausage and peppers, garlic, onions, and ricotta cheese. Never allow someone to pass off a multi-layered pasta dish with a primarily vegetable filling as lasagna and never, ever, include mushrooms. Mushrooms are a fungus, not a food.

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

MK: I’d like to go to Nice, France, and see the French Riviera.

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

MK: When I interviewed, Garth Wainman gave me a “no jerks” guarantee. He was, and remains, 100% correct. There are no jerks who work for Walsh Colucci. Resolving disputes and carrying other people’s flags into battle can be difficult and stressful, but having respect for and enjoying the people you work with makes it a lot easier.

We are often presented with disputes that require us to theorize the potential outcomes of strategies and press us to consider novel arguments and positions. Having the freedom to engage in those debates with colleagues knowing that we each respect each other enough to realize the best answer may not be your own is an atmosphere that generates both a positive work environment and the best chance of success for our clients.

TLL: Thank you, Michael!

North Hill Approved to Become a Mixed-Income Residential Community on Richmond Highway

Posted on by Lynne Strobel
Source: Wiencek + Associates Architects + Planners

On February 14, 2017, the Fairfax County Board of Supervisors voted unanimously to approve a rezoning and proffered condition amendment that will transform 34.88 acres of vacant land, commonly known as North Hill, into a vibrant, mixed-income residential community located in the heart of the Richmond Highway Corridor. The approval represents the culmination of a partnership between CHPPENN I, LLC, and the Fairfax County Redevelopment and Housing Authority, which acquired the property in 1981 with Community Development Block Grant funds. This public-private partnership will result in the development of a community comprised of 279 affordable and workforce multifamily dwelling units, including affordable age-restricted units available to seniors, and 175 market rate townhomes. In addition, approximately 12 acres of the property will be dedicated to the Fairfax County Park Authority for use as a public park. The project will include streetscape and frontage improvements to enhance the appearance of Richmond Highway, and a public plaza with landscaping and recreational amenities that will be a gateway into the community.

CHPPENN I, represented by attorneys Lynne Strobel and Bob Brant, worked closely with the community and Fairfax County staff throughout the application process to ensure the proposed development will be consistent with the long-term vision for Richmond Highway. The North Hill development will serve as a catalyst for future redevelopment along the rapidly revitalizing Richmond Highway Corridor.

Embark Richmond Highway

Posted on by Sara Mariska
Source: William F. Yurasko

On May 12, 2015, the Fairfax County Board of Supervisors initiated Embark Richmond Highway to facilitate multimodal transportation improvements in the Richmond Highway Corridor. The County’s efforts respond to recommendations from the Virginia Department of Rail and Public Transportation (DRPT). The County’s review requires input from a variety of County agencies, as well as cooperation with the Virginia Department of Transportation (VDOT) and federal agencies. Embark intends to widen Richmond Highway (Route 1) to a consistent six lanes, establish Bus Rapid Transit (BRT) with nine (9) stations along the corridor from Huntington to Fort Belvoir, and plan for a future two-stop expansion of Metro’s Yellow Line to Beacon Hill and Hybla Valley.

The County is currently analyzing a Comprehensive Plan amendment that will modify land use recommendations, provide urban design guidelines, and include policy guidance to support BRT and the future Metro. A 13-member advisory group meets monthly to discuss the County’s progress and analysis. At present, the County is refining the proposed land use recommendations for use in its Transportation Impact Analysis, which will be submitted to VDOT in early May. The goal is for the amendment to proceed to public hearing before the Planning Commission in December 2017 and before the Board in January 2018. VDOT is concurrently working on the design for the widening of Richmond Highway. Federally required Environmental Assessments are ongoing as are design efforts. A public hearing on the design is anticipated to be held in May 2018. The widening of a portion of Richmond Highway is expected to be accomplished by 2025 and BRT is planned to open in 2028. More information on Embark can be found on the County’s website.

Liberty Park Mixed-Use Development Project Proposed Near Innovation Center Metro Station

Posted on by Sara Mariska
Source: Google Earth

MRP recently filed a rezoning application to allow an approximately 32-acre mixed-use development currently identified as Liberty Park. The proposed community will include a mix of office, retail, multifamily, and townhouse uses near the Innovation Center Metro Station. Office and multifamily uses have been located closest to Metrorail with density tapering to the townhouses to the south. A new grid of internal streets will be created and will tie into the existing road network in the area. Because the property is currently developed with eight office buildings, the development will be phased over time. MRP is working toward application acceptance.

Employee Spotlight

Posted on by thelandlawyers
Robert D. Brant, Associate
Source: Brigitte Flores

Bob joined the firm in 2015 and works in the Land Use & Zoning Practice Group. His practice focuses on securing zoning and land use entitlements including rezonings, special permits, and special exceptions. Bob was born and raised in Philadelphia, but moved to Arlington in the summer of 2006 after graduating from the College of William and Mary. Bob is proud to call Northern Virginia home for the past 10 years. Much to the chagrin of many of his WCLW colleagues, he still roots for his beloved Phillies and Eagles. Bob met his wife, Jenna, in law school at Catholic University. They bought their first home in Fairfax County last summer, after living in Arlington, and are expecting their first child (a boy!) in May. Congratulations, Bob and Jenna!

We talked to Bob this month and asked him to tell us more about his practice, what interested him about the legal field, and what he does for fun.

The Land Lawyers: What did you think you wanted to be when you were younger?

Bob Brant: The movie “Jerry Maguire” came out when I was about 12 years old, and for the longest time I really wanted to become a sports agent!

TLL: What interested you about the legal field?

BB: I was exposed to land use law at a very early age. My dad is also a land use attorney, and has practiced zoning and municipal law in suburban Philadelphia for the last 30 years. As a child, I didn’t take much interest in it – all I knew was that dad had a lot of night meetings! During my third year of law school, I took a seminar course in land use law. Mike Coughlin, one of the firm’s shareholders and a fellow alumnus of Catholic University’s Columbus School of Law, delivered a guest lecture to our class and walked us through an eminent domain case he was working on at the time. I guess you could say it lit a spark. I stayed in touch with Mike in the years following law school, and the connection helped get me in the door here.

TLL: Are you involved with any organizations in Arlington?

BB: I volunteer as a “Power Lunch” reading mentor through a fantastic organization called Everybody Wins! DC, a non-profit organization devoted to promoting children’s literacy and a love of learning. I spend an hour every other week with a second-grade student at Key Elementary School in Arlington reading, talking about what he is learning in school and, most importantly, hearing about how much fun he has playing laser tag on the weekends. It has been an incredibly rewarding experience for me, and I look forward to working with my mentee throughout his elementary school years.

TLL: You work with the Land Use & Zoning Practice Group. Explain what types of issues you handle.

BB: My practice is devoted to working with property owners, business owners, and developers to secure land use entitlements including, for example, rezonings, special use permits, and special exceptions. I work in a number of jurisdictions throughout Northern Virginia including Fairfax County, the City of Alexandria, Arlington County, and the Town of Vienna. I enjoy this line of work because it allows me to participate in shaping the future of our region through collaboration with our clients, local government, and the community.

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

BB: I study zoning ordinances. Just kidding (although there are some fun hidden gems in there!). In my spare time, I like to play golf and tennis, spend time with family and friends, and most importantly, collect and listen to music. Several years ago, I liberated my dad’s vinyl record collection from some boxes in a dusty corner of my parents’ basement. I started with about 200 classic rock records (Beatles, Rolling Stones, Bob Dylan etc.), and have added about 700 or so of my own. I spend a lot of time at various record stores throughout the area – particularly at Mobius Records in Fairfax City – flipping through the crates and discovering new music.

TLL: Do you have a hero or heroine?

BB: My mom and dad. I think I inherited the best parts of both of them, for which I will always be grateful.

TLL: Favorite meal?

BB: Pepperoni pizza and a cannoli from the Italian Store in Arlington. I eat it just about every week!

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

BB: For our honeymoon, my wife and I took a 10-day cruise around the Mediterranean, visiting ports in Italy, Greece, and Turkey. I would do it over again 100 times!

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

BB: Our firm consists of genuinely great people. We are an eclectic group, but we work together as a team, and have one anothers’ backs. I have felt truly welcome here since Day One, and look forward to a long career as a Land Lawyer.

TLL: Thank you, Bob!

Is My Non-Compete Agreement Enforceable?

Posted on by Garth Wainman
Is My Non-Compete Agreement Enforceable?
Source: Susan Lynch

The popularity of non-compete agreements in Virginia has increased substantially over the years. Such agreements prohibit a former employee from competing against his or her former employer for a period of time after the termination of employment. Although increasingly common, covenants not to compete are frequently a source of expensive and time-consuming litigation, and the law is constantly evolving.

We are routinely involved in such cases, both on behalf of employers trying to enforce the agreements and former employees trying to avoid them. The outcome of the litigation will often turn on whether the agreement is enforceable.

Under Virginia law, non-compete agreements are enforceable if they are narrowly drafted to protect a legitimate business interest, not unduly burdensome on the employee’s ability to earn a living, and not against public policy. The burden of proof is on the employer seeking to enforce the agreement to prove that it is reasonable.

In order to determine reasonableness, Virginia courts evaluate three aspects of the restriction: its duration, its geographic scope, and the breadth of the activity being restricted (the “functional scope”). The elements are considered collectively, rather than individually. Thus, a two-year limitation found reasonable in one case might be unreasonable in another case depending on the scope of the other restrictions.

Duration. Generally, an enforceable non-compete agreement must have a limited duration because Virginia courts will protect a former employee’s right to make a living in his or her chosen field. Unfortunately, there are no black-and-white rules regarding when a duration is reasonable because it must be considered together with the geographic scope and functional scope limitations. Virginia courts have upheld agreements that restrict competition for one and even two years or more in certain cases.

Geographic Scope. Covenants not to compete must also be limited in geographic scope. Generally, employers can only restrict competition within the area they do business. For example, if 90% of a company’s business is within 25 miles of the main office and the employer requires a 50-mile non-compete radius upon termination, expect it to be struck by the courts.

Restricted Activities/Functional Scope. An employer must be careful to only limit a former employee from performing work for a competitor that actually competes with its company. If done correctly, a company can prevent its sales manager from working in the same type of sales for a competitor in its region; however, the company likely cannot prevent the employee from working in the competitor’s IT department. Any attempt to prevent an employee from working in “any capacity” for a competitor will likely be struck down as unreasonable and overbroad regardless of what work the former employee actually does.

When construing a non-compete agreement, any benefit of the doubt will be given to the employee, so the language of the agreement is critical. If a court concludes that a provision of a non-compete agreement is unenforceable, it will not rewrite or remove that provision. Instead, it will invalidate the entire agreement. This result would undermine the validity of all similar agreements a company might have with its other employees. All the more reason to not overreach when drafting them.

Non-compete agreements are not for everyone. They should be used only for key personnel, such as head salespeople, officers, directors, marketing personnel, and other employees involved in critical aspects of a company’s business. Non-solicitation agreements, which protect a company’s clients and/or employees from being poached by former employees, are also a useful tool and generally are more easily enforced.

Because the law is constantly changing, we recommend employers routinely have their agreements reviewed to make sure they are enforceable. In 2011, the Virginia Supreme Court struck as overly broad a non-compete agreement that was identical to one it had upheld as reasonable for the same employer in 1989.

Please feel free to contact Garth Wainman to discuss any questions you may have regarding whether non-compete and/or non-solicitation agreements are appropriate for your business. We would be happy to review any of your existing agreements for compliance with current law.

Loudoun County Board of Supervisors Approves Expansion of Inova Loudoun Hospital

Posted on by Michael Romeo
INOVA Loudoun Hospital
Source: HDR Architecture

Last month, at the first business meeting of the year, the Loudoun County Board of Supervisors approved a rezoning and special exception application that will facilitate the continued expansion of Inova Loudoun Hospital. The approved rezoning will enable Inova Loudoun Hospital to realize the full potential of its zoning density on the 88-acre property.

A total of 1,585,584 square feet, including up to 1,238,000 square feet of hospital uses, can now be developed on the property. Given the layered history of zoning actions and density provisions that apply to the property, complex discussions and negotiations with Loudoun County staff and the Lansdowne Conservancy were necessary to accommodate the rezoning.

The approved special exception allows for acceleration of the many ancillary items to be developed in advance of previously approved timing provisions. The creation of a preliminary phase as part of this special exception approval will enable the immediate development of areas including a new loading dock, materials management area, kitchen expansion, generator enclosure and utility structures, and expansion of the linear accelerator totaling up to 56,000 square feet.

The approval of these applications will facilitate the ongoing expansion of Inova Loudoun Hospital in line with its expansion schedule and will accommodate significant future expansions as the hospital continues its transformation into a tertiary care hospital serving the residents of Loudoun County.

Good Deeds – Michael Coughlin

Posted on by Antonia Miller
Michael Coughlin
Source: Susan Lynch

On Saturday, April 29, Mike Coughlin will take a break from his busy eminent domain practice to lead a group of volunteers who will be repairing and rehabilitating homes for community members in need in the City of Alexandria. For the past four and one-half years, Mike has been a member of the Board of Directors of Rebuilding Together Alexandria and over the years, has participated in National Rebuilding Day. On National Rebuilding Day in 2016, more than 700 volunteers donated time and materials to Alexandrians in need.

Mike looks forward to National Rebuilding Day each year saying, “It provides me the opportunity to give back to the City of Alexandria, where I live, by assisting with home improvement projects.” Several of the homes Mike has worked on in the past are within walking distance of his own home, and, as he points out, he is lucky to now know several neighbors. Last year, through his work with Rebuilding Together Alexandria, Mike was part of a team that helped a former City of Alexandria bus driver complete much needed health and safety related repairs throughout his home, including major repairs like installing new windows and other significant work like installing a microwave and light in the kitchen. Mike found it especially rewarding to give back to someone who had previously served the City of Alexandria.

Although National Rebuilding Day is its biggest annual event, Rebuilding Together Alexandria also provides services to residents of the community year round through other programs. The Safe and Healthy Homes Initiative strives to make the homes of low-income homeowners in the City safe and healthy through renovation projects, completed at no cost to them. The goal is to help members of the community who are elderly and/or living on a fixed income to remain in a safe and comfortable home. Another initiative, the Community Strong Program, partners with the City to improve public spaces including parks and school areas. Through the Home of Your Own Program, Rebuilding Together Alexandria purchases and renovates homes with the goal of selling them, at cost, to first-time homebuyers. The Community Strong Initiate partners with sponsors and City of Alexandria agencies to improve community spaces like parks and playgrounds. Rebuilding Together Alexandria also hosts an annual fundraiser, Raise the Roof, at Port City Brewing Company, which the firm has sponsored in past years.

Mike has served as Chairman of the Board of Directors of Rebuilding Together Alexandria and helped establish the development committee responsible for fundraising. The skills Mike has honed as an attorney, and through his eminent domain practice, including his commitment to fostering client relationships, have helped him to attract new sponsors to Rebuilding Together Alexandria.

Mike sees his involvement in Rebuilding Together Alexandria as a logical synergy of his skills and interests and the firm’s clients. As Mike points out, “Lawyers have a unique set of skills that can help serve and improve the community, non-profits, or other organizations. We owe it to our communities to draw on those skills and give back.”

To anyone interested in contributing to National Rebuilding Day, Mike assures me that if you can pick up a paintbrush, you can help. To anyone who would like to contribute but is unable to participate in person, funds can be contributed in the form of a sponsorship.

Employee Spotlight

Posted on by thelandlawyers
Garth Wainman, Litigator
Fishing for stripers on Cape Cod

Garth is recognized by U.S. News and World Report as one of The Best Lawyers in America©, was named a 2016 Top Rated Lawyer in Construction Law by American Lawyer Media, and has earned a reputation as an effective, diligent, down-to-earth counsel when it comes to complex business disputes—from construction sites to boardrooms. Garth has represented national and regional companies in many industries and has successfully defended his clients from claims of breaches of condominium warranties, structural design defects, delay damages, bond defaults, and myriad complex business torts.

The path to law school took Garth on a roundabout journey playing Division III basketball at Trinity College in Connecticut, playing keyboards in a coffeehouse band, and selling Pringles all over New England for Procter & Gamble. But once he set his sights on the American University Washington College of Law, the route to practicing law in Northern Virginia was straight and narrow. Garth began his career at Hazel Beckhorn and Hanes, now Reed Smith, and since then has been consistently recognized by his colleagues, peers, and legal organizations for his effective work as a business problem solver using litigation, only when necessary, as a means to an end.

The Land Lawyers: What types of cases do you focus on?

Garth Wainman: While our firm is known as a leader in land use and development throughout Virginia, I have worked to build a vibrant business and commercial litigation practice. The firm is blessed with a number of excellent lawyers who understand our clients want sound, practical advice that gets their deals done. As a registered agent and counsel to more than 50 local and regional businesses, I am fortunate to work with some marvelous entrepreneurs and help them through the phases of building their businesses, increasing their workforces, and succession planning so that the next generation can inherit vibrant successful companies.

While our real estate clients need assistance with everything from acquisition, construction contracting, permitting, disputes with localities, contractor problems, and mechanics liens, sales or leasing—our non–real estate business clients look to us to help them with drafting organizational documents, form contracts and employment agreements, and related labor issues. A specialty we have developed is the drafting and enforcement of non-compete and non-solicitation agreements. These agreements, if not drafted correctly, can spawn considerable litigation and expense. We routinely review and update these agreements and company employment manuals for our clients to help them avoid the common problems that may arise under both. You can read more about these agreements in an article I wrote for this month’s newsletter.

TLL: You also work with businesses on commercial transactions and complex real estate and financial matters. Explain what type of issues you handle?

GW: For many years I represented several regional banks handling work-outs with their commercial borrowers. I was able to identify resolutions and renegotiate outstanding debt. Commercial leasing is another area of our expertise. Tenants will often accept a landlord’s form lease without knowing which protective clauses to include. Leases are often one of the largest long-term debt obligations for a commercial tenant and they need an experienced negotiator on their side. I firmly believe that meeting with an experienced attorney prior to signing a lease is an investment that pays off in the long run.

TLL: Last year, you were featured in American Lawyer Media’s 2016 Top Rated Construction Lawyers. Tell us about your work over the years in relation to this recognition.

GW: Many years ago, when Cellar Door Productions wanted to build a music amphitheater in Haymarket, my partner, John Foote, handled the zoning. During construction of Jiffy Lube Live, approximately one-third of the earthen berm—the largest one on the East Coast—slid down the hill during a rain storm. I was hired to negotiate the rebuilding of the pavilion and successfully litigated the case to a result that covered my client’s costs and then some.

In 1997, the David and Lucille Packard Foundation purchased a defunct underground Cold War bunker, known as Mount Pony in Culpeper, Virginia, with plans to convert it into a storage site that would house a vast collection of movies, television shows, and recordings from the Library of Congress. The renovation of the underground bunker also included the incorporation of a green roof system that eventually failed. I was hired to represent the Packard Foundation. Through a series of successful motions and prudent mediation, a resolution was reached, the green roof was rebuilt, and the foundation continues on with its philanthropic work.

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

GW: For many years, I was lucky enough to coach both my son and daughter on their baseball, softball, and basketball teams. These days, I try to play tennis a couple times a week and making time to play the piano and guitar remains a constant pleasure.

TLL: What are your favorite things to do?

GW: My passion is fishing, and because I grew up going to beaches on Long Island Sound, I have tried to live near the water most of my life. These days, I live in Belmont Bay, on the Occoquan River, where I enjoy my kayak and fishing for the elusive snakehead, an invasive species from Asia that is an excellent game fish and makes an even better dinner. When I can get away, I head for the Florida Keys to snorkel and fish for spiny lobster and other game fish.

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

GW: Simply put, we hire intelligent well-rounded attorneys with the work ethic and drive to become our partners. We often spend 10-hour days together, so it certainly helps if you like being with one another. When a firm hires bright and thoughtful people, and provides the necessary mentorship and challenging work, it becomes a firm that people want to join and develop their careers. We have established strong friendships and relationships with our colleagues and clients over the years, and it is rare that anyone leaves. That means we are doing something right!

TLL: Thank you, Garth!