The Land Lawyers Blog

U.S. Federal Court Issues Injunction to Deny Proposed Revisions to FLSA’s “Salary Basis Test”

Posted on by Michael Kalish
www.dol.gov
www.dol.gov

In June of this year, Land Sense published an article about the change the U.S. Department of Labor announced in May for determining overtime eligibility. That rule change, which was set to go into effect on December 1, 2016, raised the minimum salary test for determining overtime eligibility to $47,892 annually.

In other words, the minimum salary test for determining overtime eligibility was raised from $455/week ($23,660 annually) to $921/week ($47,892 annually) for executive, administrative, and professional employees. The Department of Labor projected this change would apply to approximately 4.2 million American workers.

Shortly after the Department of Labor’s May announcement, 22 states and dozens of business and trade organizations filed suits in various federal courts. A few of those cases were consolidated into a case pending in the U.S. District Court for the Eastern District of Texas, where the plaintiffs filed motions asking that the court overturn, or at least delay, the implementation of the Department of Labor’s new threshold salary test.

On November 22, Texas District Judge Amos L. Mazzant III issued a ruling holding that not only was the new test stayed from implementation, but also the FLSA did not support any minimum salary floor at all based on a plain reading. Thus, pursuant to Judge Mazzant’s holding, any person employed in an executive, administrative, or professional capacity is ineligible for overtime pay no matter what their current salary. Furthermore, Judge Mazzant ruled that the Department of Labor is enjoined from implementing the salary threshold rule anywhere in the United States.

With Judge Mazzant’s ruling issued so close to December 1, 2016, it seemed unlikely that his decision would be appealed, let alone heard by any appellate court, prior to the planned implementation date, leaving employers at a loss as to how to proceed to ensure compliance with the FLSA. It is also unclear what actions Congress or the new Administration will take to either alter the FLSA or defend the Department of Labor in any forthcoming appeal or related suits. New questions are certain to arise regarding the eligibility of workers for overtime pay based on Judge Mazzant’s ruling.

If you have questions about whether your employees are eligible for overtime pay based on this new ruling, you should direct your queries to an attorney who can thoroughly review the current eligibility requirements with you. Please note that no part of Judge Mazzant’s ruling should be read to change an employer’s record-keeping responsibilities under the FLSA. Questions about this article, or about the Fair Labor Standards Act, can be directed to Michael Kalish.

JDRF Presents Art Walsh With Its 2016 Rapaport Lifetime Service Award

Posted on by Antonia Miller

Good Deeds

Nan and Art Walsh Source: Alfredo Flores Photography
Nan and Art Walsh
Source: Alfredo Flores Photography

For the past 19 years, Art Walsh has hosted an annual golf outing to raise money for JDRF, the leading global organization funding type 1 diabetes (T1D) research. After each outing, Art has stood in front of his many clients, colleagues, friends, and family and thanked them for their participation and generous contributions. This year’s annual golf outing was held October 17 at Westwood Country Club. During the evening’s reception, the 141 golfers who had played in the tournament that day, and the clients, guests, and family in attendance, stood to applaud Art as JDRF Executive Director Bill Parsons announced that Art was the 2016 Rapaport Lifetime Service Award recipient.

“Art’s extraordinary commitment to finding a cure for T1D is
exactly why we decided he is deserving of this service award.”
JDRF Hope Gala Program

Art was formally honored and presented the award on November 5, at the 16th annual JDRF Hope Gala held at the National Building Museum in Washington, D.C. This award recognizes Art’s tireless efforts in raising more than $1.1 million over the years for JDRF and comes as no surprise to Art’s many clients, friends, family, and golf outing participants.

Caption: Art Walsh with (from left to right) his daughter Sarah, wife Nan, and daughter Ada-Marie at the 2016 JDRF Hope Gala. Source: Alfredo Flores Photography
Art Walsh with (from left to right) his daughter Sarah, wife Nan, and daughter Ada-Marie.
Source: Alfredo Flores Photography

The firm’s annual golf outing pays tribute to Art’s brother John, who was diagnosed with T1D at age 11 and passed away in 2000 due to complications from the disease. Art, who is both inspired and humbled to be recognized by JDRF, remembers as a child watching his young brother give himself two injections a day and witnessing his lifelong struggle with the disease. Art describes the golf outing as a great way to honor his brother, entertain clients, raise money, and contribute to JDRF. And he credits friends and clients of the firm who have generously contributed to the event over the years.

“Love this guy. So proud of my dad and all his work on behalf of juvenile diabetes research!”
Ada-Marie Aman

Art’s initial inspiration for community involvement came from his parents, who inspired him from a young age to work hard and be humble. For those wishing to get involved in charity work, Art suggests that you can make a substantial contribution if you focus your efforts and energy on one or two organizations that are particularly meaningful to you. Art demonstrates this principle in his commitment to JDRF and in his years of service to his alma mater, the College of William & Mary.

Caption: Art Walsh with his daughter, Ada-Marie Aman, at the 2016 JDRF Hope Gala. Image courtesy of Ada-Marie Aman
Art Walsh with his daughter, Ada-Marie Aman.
Image courtesy of Ada-Marie Aman

In 2015, Art was one of only four recipients of the College of William & Mary’s prestigious Alumni Medallion Award. The medallion, the highest award the Alumni Association can bestow on a graduate, is awarded to alumni in recognition of their professional accomplishments, leadership, dedication to the community, and commitment to their alma mater. Art was secretly nominated for the award by his twin brother, Pat, and was sure that the phone call he received telling him he had won was a mistake. But Art should not have been surprised. He is a generous contributor to the college and served on the Alumni Association Board for six years, which involved staying connected with the law school and providing summer associate opportunities to law school students at his firm. Art’s commitment to William & Mary is his way of saying thank you for the wonderful education he received during his time as both an undergraduate and law school student.

From a young age, Art has been an agent of change. He has shown his commitment to this ideal in his continued involvement with The College of William & Mary and in his work with JDRF in honor and memory of his brother.

Nan and Art Walsh with Barbara Rapaport (right.)
Nan and Art Walsh with Barbara Rapaport (right.) Image courtesy of JDRF.

 

 

Prince William County Approves Life Time Fitness at Virginia Gateway

Posted on by Jessica Pfeiffer
Life Time Fitness at Virginia Gateway
Life Time Fitness at Virginia Gateway

On October 4, the Prince William County Board of County Supervisors unanimously voted to approve a Comprehensive Plan Amendment and Rezoning for Life Time Fitness, an approximately 125,000-square-foot resort-like fitness facility, with recreation and spa amenities, proposed near Virginia Gateway.

Life Time Fitness worked with land use attorney Pete Dolan and land use planner Jessica Pfeiffer to obtain approvals for the facility, which will include indoor and outdoor pools, outdoor sports fields, an outdoor bistro, an indoor café, a kid’s academy, and other amenities, making it a first-class recreation facility for the Gainesville area. Life Time will make a capital investment of more than $25 million dollars in the building and facilities alone, and create an estimated 230 jobs.

The property consists of approximately 24 acres on the east side of Limestone Drive, just north of Wentworth Green Drive. Life Time Fitness committed to design and construct the extension of Wentworth Green Drive to the east from Limestone Drive.

Life Time Fitness has locations in Fairfax, Centreville, Reston, and Loudoun County.

Litigators Andy Burcher and Matt Westover Win Zoning Challenge

Posted on by Matthew Westover
Image courtesy of La Bergerie
Image courtesy of La Bergerie

Representing Janow, LLC, the owners of La Bergerie, a fine dining French restaurant in historic Old Town Alexandria, the litigators successfully defended a suit brought by neighbors challenging the City Council’s approval of the restaurant’s proposed relocation.

In July 2014, Janow and its principals, Margaret and Laurent Janowsky, proposed relocating La Bergerie from its current location in the Crilley Warehouse to 329 North Washington Street. In addition to the restaurant, Janow proposed to operate a small inn at the new location. Janow needed various zoning approvals from the Alexandria City Council, and with the assistance of Walsh Colucci’s Cathy Puskar, filed three interrelated land use applications to rezone the property and obtain a special use permit for the new uses. After obtaining a unanimous favorable recommendation from the Alexandria Planning Commission, on October 18, 2014, Janow received unanimous approval from the Alexandria City Council.

A group of neighbors who lived near the proposed new location, however, filed a lawsuit in the Alexandria Circuit Court challenging the City Council’s decision. The complaint alleged, among other things, that the decision was arbitrary, capricious, and unreasonable, and amounted to illegal spot zoning under Virginia law. The plaintiffs claimed that the City Council’s approval “was the product of a sham proceeding” and “stemmed from multiple procedural and substantive violations of Virginia law, the Charter of the City of Alexandria, the City of Alexandria Zoning Ordinance, and the relevant deliberative bodies’ own prescribed rules.” The plaintiffs further contended that the City Council failed to consider the merits of the application, but rather voted “to confer a substantial financial benefit on a politically-connected family,” because Margaret Janowsky is the daughter of former Alexandria Mayor and Virginia State Senator Patricia Ticer.

Andy Burcher and Matt Westover defended Janow in the litigation. After more than a year and a half of pretrial maneuvering, the trial finally began on May 31, 2016. Over the course of the next three days, the Alexandria Circuit Court heard testimony from numerous witnesses and reviewed hundreds of pages of exhibits, during which the litigators poked holes in the plaintiffs’ claims.

The court took the matter under advisement until October 31, 2016, when it issued a 14-page letter opinion that rejected the neighbors’ claims in their entirety and concluded that the “City Council’s actions were reasonable and not arbitrary and capricious and did not constitute spot zoning.” The court agreed with Janow’s position that the principal case relied on by the plaintiffs was distinguishable from Janow’s case and that the perceived procedural issues they complained of did not render the City Council’s decision invalid. Having rejected the procedural, or “Renkey” issues, the court applied well-established Virginia law that the City Council’s decision was entitled to a presumption of validity and was subject to the “fairly debatable” standard. The court also agreed with Janow that the City Council’s decision did not constitute illegal spot zoning because the relocation of La Bergerie would benefit the entire City in numerous ways including promoting the expansion of a locally owned small business, protecting a building of historic and architectural value, and encouraging tourism.

Although the court’s decision could be appealed to the Virginia Supreme Court, it clears a major hurdle for La Bergerie’s proposed relocation to move forward.

Loudoun Initiates Comprehensive Plan Review

Posted on by Andrew Painter

A jurisdiction’s comprehensive plan is designed to provide public policy recommendations on issues related to growth, transportation, preservation, the environment, utilities, recreation, and more. While most comprehensive plans are drafted to be general in nature, their recommendations often form the basis to approve or deny legislative land use applications such as rezonings, special exceptions, and special permits.

The Loudoun County Board of Supervisors has recently commenced an area-wide review of the County’s comprehensive planning documents to provide a vision for future growth and development over the next two decades. Loudoun has experienced substantial development over the past 15 years, and this exercise represents the first substantive revision since 2001 to the County’s chief planning documents, known as the Revised General Plan and Countywide Transportation Plan. Formally launched in March 2016, the initiative is expected to last for the next 15 months, during which the County and public will engage in a sustained dialogue regarding the future vision for the County.

It is anticipated that while certain aspects of the current plan will be retained, a majority of existing policies will be revised to account for the changing dynamics of the County. An emphasis will be placed on developing a strategic, understandable, and flexible document. Major policy changes are anticipated as they relate to the County’s Suburban Policy Area, with minor changes being made to the Rural Policy Area and Transition Policy Area recommendations.

Key to the process is soliciting the input of residents, landowners, developers, and business owners in this diverse County with competing interests. To that end, the Board has created a 24-member Stakeholders Committee, which first met in June. Led by the Chairman of the Planning Commission, the Stakeholders Committee is comprised of a broad range of citizen, environmental preservation, and development industry representatives.

Among the more critical issues to be addressed by the Stakeholders Committee is deciphering the future of the Transition Policy Area; namely, how the new plan can achieve a balance to protect current residents’ expectations while providing for future economic growth and housing opportunities. The Stakeholders Committee is also reviewing issues related to the redevelopment of older areas of the County, managing the planned Silver Line Metrorail extension, providing a multimodal transportation network, and ensuring availability of diverse housing options.

The County is in the process of holding four “Envision Loudoun” public outreach meetings to solicit input from local residents, developers, and business owners, the first three of which occurred on November 7, 14, and 16. Staff will use the information gleaned from these sessions to establish a clear and cohesive vision to determine the County’s preferences for the future.

Upcoming Envision Loudoun outreach sessions will occur on November 16, and December 8, and the Stakeholder Committee will next meet on December 19 at the Loudoun County Governmental Center. These meetings are open to the public, and additional information can be found here.

Employee Spotlight

Posted on by thelandlawyers
michelle_art_spotlight
Source: Susan Lynch

Leesburg, Virginia, is a very long drive from Naples, Italy, where Michelle Stapleton was born. Michelle is no stranger to long drives, and short putts, and bogies and birdies. She and her husband, Steve, are avid golfers, which is a good thing. Since 1988, Michelle has been Art Walsh’s assistant and the driving force behind the firm’s annual JDRF golf outing.

The Land Lawyers: How long have you been working for the firm?

Michelle Stapleton: My first day on the job as Art’s assistant was February 1, 1988. The same year my son turned 2. He’ll be 32 next February!

TLL: Working for the founding shareholder, and Nan Walsh, a managing shareholder, must keep you on your toes. What do you enjoy most about working with Art and Nan?

MS: I’m so proud to work for Art and Nan. Over these many years, they have made me feel more like family. I work closely with our clients, coordinating meetings and events and, over the years, have seen the many positive changes in the Northern Virginia landscape as a result of Art and Nan’s diligence and expertise. They lead by example and are the ultimate professionals.

TLL: You have worked closely with Art for the past 19 years coordinating the annual JDRF golf outing. How has it evolved over the years?

MS: The annual golf outing is a special project that I always look forward to. I enjoy coordinating the attendance of our client participants, organizing auction and raffle items, recognizing our hole sponsors and donors, and working with the JDRF team and volunteers who have, over the years, also become our friends. Art’s most challenging task is arranging the golf pairings. We typically have a full field of 144 participants, so I work closely with Art on that assignment. Preparing for the outing is exciting because I get to work with great people. As always, it’s a pleasure to work with the staff at Westwood Country Club, Steve Buckhantz, our client sponsors and donors, and car sponsors. About two months before the outing, we start monitoring the weather hoping for that trifecta of perfect weather, perfect course conditions, and everything going off without a hitch. We have been so lucky to have such generous participants and supporters at this event. Over the past 19 years, our annual event has raised more than $1.1 million for JDRF, the leading global organization funding type 1 diabetes research.  We are all so excited about our next outing in September – it will be our firm’s 20th anniversary event!

TLL: What is your most memorable moment in the history of the JDRF golf event?

MS: I have many fond memories, but the ones I remember most are the year one of the golfers got a hole in one and won a car, when sports psychologist Dr. Bob Rotella attended and gave a golf clinic, and the years we got rained out and had to reschedule and were blessed with spectacular weather. But even those few drizzly years when we didn’t cancel, everyone still came together for the cause. There’s also the excitement of our clients arriving for registration, hearing Art’s welcoming remarks, and the roar of 70 or more golf cart engines kicking into gear after the shotgun start. But the most memorable moment happens every year during the reception when all the participants stand to give Art heartfelt applause in appreciation and, this year, for receiving the Rapaport Lifetime Service Award representing all he has done to make this event the success it is. It’s all very memorable.

TLL: You not only know how to co-host a successful golf event, you also know what a birdie, bogie, and bunker is. How long have you been playing golf?

MS: I learned to play golf as a teen, and Steve and I have played for years. But just in the past 15 years we’ve been able to play regularly at River Creek, where we live. We really enjoy traveling to play golf and have taken long weekends to travel down to Williamsburg and the Carolinas to play.

TLL: Have you ever gotten a hole in one?

MS: I’ve never gotten a hole in one, but I think about it before I tee it up on the par 3s! I’m going to keep trying!

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

MS: Everyone here makes this a great place to work. We strive to work cohesively and efficiently because we care about our clients and each other.

TLL: Thank you, Michelle!

Litigators Andy Burcher and Matt Westover Win Zoning Case

Posted on by thelandlawyers

Rettig vs City of Alexandria

Representing Janow LLC, the litigators defended the owners of La Bergerie, a restaurant located in the City of Alexandria’s historic Old Town in a suit brought by neighbors challenging the City Council’s approval of the restaurant’s proposed relocation. After a three-day trial, the judge ruled in favor of La Bergerie and the City Council, clearing the way for the restaurant’s relocation. Read the opinion here: Rettig-vs-City-of-Alexandria

Splendid Weather Welcomes 140 Players to the 19th Annual JDRF Golf Outing at Westwood Country Club.

Posted on by thelandlawyers

This year’s JDRF Golf Outing went off without a hitch or drop of rain. After having to reschedule the September event due to heavy rains, Art Walsh couldn’t have asked for better course conditions or a brighter day to raise money for type 1 diabetes (T1D) research. October 17 turned out to be a splendid day. 140 golfers, playing in sixsomes, maintained a record pace and finished their rounds just as guests began to arrive for the reception, raffle, and silent auction that evening. When it was all over, the golf event raised $67,585, increasing the total amount raised for T1D over the past 19 years to more than $1.1 million.

On behalf of Art Walsh, we’d like to thank our clients, friends, and family who participated in this year’s event and donated generously to JDRF. Online donations to JDRF can still be made through the end of the year by visiting the firm’s fundraising webpage. Contributions are 100% tax-deductible. To learn more about T1D, please visit JDRF’s website.

Scroll down to view team pictures (you can save them by right-clicking on the image and saving to your desktop) and be sure to visit our Twitter and Facebook pages for additional images taken during the event.

Transportation Update—Five of Virginia’s Lesser Known but Important Projects

Posted on by Michael Coughlin
Rendering of bus lanes
Source: www.fairfaxcounty.gov

Most area residents are familiar with VDOT’s plans to add express lanes to I-66, both “outside the beltway” and “inside the beltway,” which also happen to be the names for VDOT’s Transform 66 projects. Many may be aware that VDOT plans to widen Route 7 from four to six lanes between Reston Avenue and Jarret Valley Drive. And anyone traveling into or out of Dulles Airport can see that WMATA’s Phase 2 extension of Metro’s Silver Line is in full swing. But are you aware of the widening of Route 1 from I-495 south in Fairfax County, or other transportation projects that have the potential to provide significant relief from traffic congestion? If not, you need to find out.

 

Widening of Route 1 in Fairfax County

Embark Richmond Highway is Fairfax County’s effort to provide a continuous corridor of six lanes from I-495 to the Prince William County line, with bus rapid transit (BRT) running in dedicated lanes down the middle of the highway. Nine BRT stations are currently proposed. The Fairfax County Comprehensive Plan proposes that the roadway, once widened, be 176 feet wide, with nine-foot-wide trails on both sides of the general purpose travel lanes.

Rendering of bus lanes
Source: www.fairfaxcounty.gov

Implementing this plan will have significant trade-offs. Some existing businesses along the corridor may be displaced, and property owners may find their right of way significantly affected. On the other hand, the project has the potential to transform a suburban, auto-dependent area into an urban, transit-oriented corridor that may, at some point, include an extension of Metro’s Yellow Line from the Huntington Station to Hybla Valley.

Community meetings are being held regularly regarding this effort. More information on the project can be found on Fairfax County’s webpage here and here.

According to VDOT representatives, the widening of Route 1 will occur in phases, with the next widening phase likely occurring from Napper Road to Jeff Todd Way and a design public hearing possibly occurring in January 2018. More information on this road project can be found here.

Updates to the County’s Comprehensive Plan sections devoted to the Richmond Highway are likely, which may include implementing a grid of streets along the heart of the transportation corridor. On October 20, NAIOP Northern Virginia is hosting a seminar focused on the Richmond Highway Corridor. Embark Richmond Highway advisory meetings are scheduled for October 24 and November 28. Community meetings will occur periodically until the Planning Commission and Board of Supervisors hold public hearings on a Comprehensive Plan Amendment focused on the Richmond Highway Corridor, presently scheduled for December 2017 and January 2018, respectively.

 

Widening of Route 1 in Prince William County

Prince William County is about to undertake the next phase of its ongoing efforts to improve the functionality of Route 1 in the County. The section of Route 1 between Featherstone Road and Marys Way will be widened from four to six lanes, with a 10-foot shared-use path on the west side of Route 1, and a five-foot sidewalk on the east side. This project also includes placing all utilities underground, similar to Prince William County’s contribution to VDOT’s Route 1 widening project from Marys Way to Annapolis Way, where the County contributed the funds for the undergrounding of utilities.

It is anticipated that final design will be complete this fall. This project will also significantly affect the right of way of local businesses and property owners. Utility relocation is scheduled to begin in the winter of 2017, with the project completion date scheduled for the summer of 2021. Presently, there is no corresponding planning effort underway by Prince William County to help capitalize on the significant infrastructure improvements associated with the widening of Route 1, although the Comprehensive Plan has for some time contemplated redevelopment within certain sections of the Route 1 corridor.

 

Braddock Road in Fairfax County

Fairfax County is in the midst of the Braddock Road Multimodal Study, and a volunteer task force is working with the Fairfax County Department of Transportation staff and the engineering firm RK&K to compile a list of recommendations for improving Braddock Road from I-495 to Guinea Road. Various intersection improvements are under consideration, as is widening Braddock Road from Burke Lake Road to I-495 by adding two HOV lanes serving as HOV lanes, as well as widening Braddock Road from four to six lanes from Burke Lake Road to Guinea Road. Also under consideration is the construction of a transit center along the corridor, with one possible location being near the Kings Park Shopping Center.

The task force is scheduled to complete its work in June 2017 and make a recommendation to the Board of Supervisors on how to proceed with the project. Approximately $60 million is available for the project which, according to FCDOT staff, is sufficient for final design and construction. Further information on this project can be found here.

 

I-95/Courthouse Road Interchange

This fall, VDOT will award the design/build contract for the implementation of a divergent diamond interchange for I-95/Courthouse Road in Stafford County. The project also includes widening Courthouse Road to four lanes from Route 1 to I-95, and then from I-95 west to Ramoth Church Road. This interchange project has undergone many designs, has had funding reduced and then restored, but finally appears to be moving forward. This interchange represents the second project in Northern Virginia where a divergent diamond will be constructed, the first being the Route 15/I-66 interchange in Haymarket. If you are curious how traffic moves through a divergent diamond interchange, you can watch a YouTube simulation of the one in Louisa County here.

Aside from the novelty of the interchange design, this project is important for the Courthouse area of Stafford County because the specter of an unfunded interchange has suppressed private investment in the area for years. Over the past several years, Stafford County has adopted several iterations of Comprehensive Plan recommendations for the Courthouse area, with the latest version adopted on April 27, 2016. With the interchange project implementing a functional road network for the Courthouse Road corridor, it is possible that redevelopment in the area may finally move forward, especially between I-95 and Route 1. The acquisition of right of way for the widening of Courthouse Road to the west of I-95 is complete, but significant right-of-way acquisitions will occur for the interchange project, with negotiations already underway with some landowners and businesses. This project represents another example of significant effects on right of way in the pursuit of improved transportation infrastructure.

 

D.C. to Richmond Southeast High Speed Rail

The Virginia Department of Rail and Public Transportation is in the middle of a multi-year study as a part of the Southeast High Speed Rail Corridor project, which seeks to improve passenger rail service between Washington, D.C., and Atlanta and all the major metropolitan areas in between. The project is broken into segments, with each state’s designated transportation agency undertaking the National Environmental Policy Act studies required prior to moving forward with implementation.

The Tier II Environmental Impact Statement is underway for the D.C.-to-Richmond segment of the project, with a record of decision anticipated in 2017. The project seeks to add capacity within the existing CSX right of way by adding a third track within the D.C.-to-Richmond corridor where only two tracks exist.

The project’s objective is to allow for intercity rail service that is competitive with air and auto options. In the D.C.-to-Richmond corridor, the maximum speed of trains will be 90 mph in some areas, which demonstrates that “high-speed rail” has a different definition when implemented in existing urban corridors as opposed to undeveloped countryside. But imagine humming along at even 60 mph on a Saturday afternoon in August headed south to Richmond, as opposed to 10 mph on I-95.

The Southeast High Speed Rail Corridor, including the segment from D.C. to Richmond, has the potential to increase travel and commerce between cities that presently rely mostly on autos for connectivity. Ideally, the cities that benefit from these projects will ensure that land-use policies around rail stations capitalize on the significant public funds necessary to implement the projects. You can learn more about the D.C.-to-Richmond portion of the Southeast High Speed Rail Corridor project by visiting dc2varail.com.

For more information regarding these projects or how to plan for projects like these that may affect your property or business, please contact Michael J. Coughlin, leader of the firm’s Eminent Domain Practice Group, by email, or call 703-680-4664.