The Land Lawyers Blog Archives - Page 16 of 31

The Land Lawyers Defend Fairfax County in By-Right Subdivision Case

Posted on October 13, 2016December 19, 2018 by John Rinaldi

Source: courts.state.va.us/main.htm

After losing in Fairfax County Circuit Court, Meadowbrook residents appealed to the Supreme Court of Virginia. Representing Fairfax County, The Land Lawyers defended the County’s subdivision zoning ordinance addressing dedicated public right of way.

In 1946, the original developer of a subdivision in Fairfax County called Meadowbrook recorded a deed and plat of subdivision creating 13 lots, all of which were served by public streets. One of the public streets, originally called Wedderburn Place, abutted two adjoining properties that were not part of the subdivision. The Deed of Subdivision contained 12 restrictive covenants, including a restriction stating: “All the aforesaid lots shall be known as residential lots and shall be used as a residence only.”

One of the two properties abutting Wedderburn Place was a four-acre parcel, known as the “Clark Property,” capable of subdivision into eight residential lots by right under the Fairfax County Zoning Ordinance. In order to accomplish the subdivision, however, the Fairfax County Subdivision Ordinance required a dedicated public right of way at least 30 feet in width. Wedderburn Place was less than 30 feet wide where it abutted the Clark Property.

In order to get a full 30 feet of width on Wedderburn Place, a prior owner of the Clark Property purchased an adjoining lot in Meadowbrook and dedicated an 803-square-foot portion of that lot (the “Dedicated Area”) to Fairfax County as public right of way. This dedication took place in 2010. Thereafter, the owner sold the Clark Property to a developer, which obtained approval of the by-right subdivision. Even though the dedicated right of way for Wedderburn Place was now 30 feet wide, the subdivision used only a very small part of the Dedicated Area as an actual public street. A majority of the Dedicated Area was to be used for sidewalks, swales, and storm drainage.

When the developer began clearing for the subdivision in 2015, one of the Meadowbrook residents filed suit in Fairfax County Circuit Court against the developer and the County, challenging the validity of the proposed use of the Dedicated Area as public access to the subdivided Clark Property. The resident claimed that the use of the Dedicated Area as access to the Clark Property violated a number of the covenants found in the Deed of Subdivision for Meadowbrook Subdivision, including the covenant limiting use of the Meadowbrook lots to “residential purposes.” The Circuit Court brought in the remaining Meadowbrook residents as necessary parties because they were all beneficiaries of the Meadowbrook covenants.

Walsh, Colucci, Lubeley & Walsh was retained to represent Fairfax County to defend the validity of the use of the Dedicated Area as public right of way. Following a two-day trial in November 2015, the Fairfax County Circuit Court held that use of the Dedicated Area as a public right of way serving the adjacent subdivision did not violate the Meadowbrook covenants. In its ruling, the Circuit Court applied the long-standing Virginia rule that (1) valid covenants restricting the free use of land, although widely used, are not favored and must be strictly construed, (2) the burden is on the party seeking to enforce covenants to demonstrate that they are applicable to the acts complained of, and (3) substantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property.

Following entry of the final order, the Meadowbrook residents appealed to the Supreme Court of Virginia. The residents claimed that (1) the Circuit Court’s ruling ran counter to the plain language of the covenants, (2) the Circuit Court’s reasoning was faulty, and (3) the Circuit Court’s ruling was counter to prior legal precedent.

In Virginia, an appeal to the Supreme Court of Virginia is not an appeal by right. The appellant must file a Petition for Appeal, to which the appellees can file an opposition. The Virginia Supreme Court then gives the appellant a hearing before a panel made up of three of the Virginia Supreme Court Justices. The appellees are not permitted to participate in that hearing, other than to observe it. If any one of the three Justices determines that an appeal should be granted, the appeal goes forward with briefing and a hearing before the full Court in which all parties can fully participate.

After reviewing the briefs of the parties and hearing the arguments of the residents’ counsel, the Supreme Court of Virginia rejected the residents’ appeal. After the rejection of the appeal, the residents filed a Petition for Rehearing, which the Supreme Court of Virginia also rejected. Because of this, the Circuit Court’s ruling will remain in place and the development will be allowed to go forward as originally approved.

Harris Teeter Grocery Chain to Open Large-Format Store and Fuel Station in Loudoun County

Posted on October 13, 2016December 19, 2018 by Michael Romeo

Source: Harris Teeter

At the intersection of Northstar Boulevard and Braddock Road, the Kirkpatrick West Commercial Center is located in the heart of Loudoun’s fastest growing area.

The population within two miles of the Kirkpatrick West Commercial Center in Loudoun County is projected to increase from just over 20,000 residents to more than 30,000 residents in as few as five years. In 2013, considering the rapid rate of growth, Harris Teeter purchased the 20-acre Kirkpatrick West Commercial Center with the idea of creating something special, and expandable, to benefit the residents living in proximity to the site.

The grocery store chain sought approval for the expansion of a previously approved commercial center to accommodate a 77,000-square-foot prototype store—with the ability to expand to 103,000 square feet—and a fuel station. To accomplish this, Harris Teeter engaged the community in more than a dozen outreach meetings throughout this multiple-year effort. The process was not without challenges. Despite the suburban zoning pattern that encompasses the site, the area’s rapid growth, and the lack of commercial retail options available nearby, the commercial center was subject to an outdated Transition Policy Area planned land-use designation that limits the type of retail uses supported by County land-use policy.

While there were many supporters, there were also detractors who loudly voiced their opinions during the review process. Harris Teeter responded to these comments by adding mitigation measures to the application and addressing potential effects on nearby residences.

Through these efforts, on September 22, Harris Teeter was able to gain approval from the Loudoun County Board of Supervisors for the expansion of the commercial center to accommodate the prototype store and fuel station. As a result of this long and hard-fought effort, Harris Teeter will be able to provide first-class commercial retail services for residents in an area of Loudoun County that currently suffers from a significant deficit in retail services.

Matching Skills with a Passion to Serve Forms an Enduring Partnership in the Community

Posted on October 13, 2016December 19, 2018 by Antonia Miller

Source: Susan Lynch

On an unseasonably warm day in late September, I sat down with Bill Fogarty (no relation to John Fogerty, of Creedence Clearwater Revival fame) to talk about his community involvement and volunteer work.

Bill is a shareholder in the Arlington office and has been with the firm for more than 30 years. He works in the Real Estate Transactions and Commercial Business Transactions practice group. Bill’s initial introduction to community involvement came through his two daughters and their school activities, and as a coach and club manager for the Arlington Soccer Association. But, over time, his community involvement and volunteer work evolved.

Today, Bill is a Power Lunch Reading Mentor with Everybody Wins! DC, serves on the Board of Directors of the Walter T. McCarthy Law Library, and is a member of the governance committee for Arlington Partnership for Affordable Housing (APAH). Bill has been able to use his skills as a real estate attorney to help APAH as it has grown over the past 25 years from a fledgling non-profit committed to developing, preserving, owning, and advocating for quality affordable housing in Arlington to an organization whose real estate portfolio includes 14 properties valued at more than $200 million. At its annual fundraising celebration last year, Bill was recognized as one of the 2015 APAH Affordable Housing Honorees for his 20-year commitment to the partnership and his involvement in the Arlington community.

Bill, who taught high school English before going to law school, believes volunteering and community involvement help create empathy and build relationships. “In real estate law we really need to know the community. It is good to get out of the office and see what the community is like and where the needs are, especially because the projects we work on, as real estate lawyers, affect the community.” Bill believes community involvement and volunteer work have broadened his perspective and made him a better lawyer and a more effective advocate for his clients.

If you are looking to get involved and trying to decide which organizations to devote your time to, Bill suggests you consider what energizes and challenges you, and where curiosity leads you. “Passion and interests are important, but so are your skills. Try to fit those skills to a need.” And because balancing work demands with community and volunteer obligations can be a challenge, Bill offers this advice: set realistic goals, work efficiently, and understand your priorities.

Employee Spotlight – Jessica Pfeiffer

Posted on October 13, 2016December 19, 2018 by thelandlawyers

Source: Patti Burns

Growing up in Fairfax County, Land Use Planner Jessica Pfeiffer wanted to follow in her father’s footsteps and attend Virginia Tech, not as a geography major, but to pursue a degree in education and history. A class in urban affairs and planning and an internship with the City of Alexandria changed the goal, but not the university.

Jessica’s father graduated from Virginia Tech’s College of Natural Resources and Environment in 1971 and made a career with the federal government as a cartographer. She would do the same—attend and graduate from Tech, but not with a degree in geography, or even education, as planned. In order to fulfill a core curriculum requirement during her freshman year, Jessica took an introductory class in urban affairs and planning and, through that program, was offered an opportunity to do what was called the Washington Semester—a 12-week program involving an intensive schedule of course work and internships with a local government, the federal government, or a non-profit organization. Jessica went to work for the City of Alexandria’s Planning & Zoning office where she collected data and information for a study of the Washington Street Corridor, among other projects. She was asked to come back the following summer. Jessica graduated from Virginia Tech in 2004, earning a B.A. in public and urban affairs and political science. Soon after she was awarded a master’s degree in urban and regional planning, and joined The Land Lawyers in our Prince William office. Here’s more about our Land Use Planner.

TLL: In graduate school, you wrote your final paper on the economic and physical sustainability of lifestyle centers in comparison to regional malls. What changes in our lifestyles have you seen since you wrote that paper more than 10 years ago?

Jessica Pfeiffer: I have had the unique experience of researching lifestyle centers and working on existing malls choosing to redevelop as lifestyle centers, as well as undeveloped sites starting the process of developing. The greater the mix of uses in a lifestyle center with a strong residential component, the more successful they seem to be.

TLL: What do you enjoy most about your role as a planner?

JP: It is always satisfying to see our planning efforts completed and being used and enjoyed by the community. I especially enjoy the work we do with churches and am very proud of the long-lasting relationships we have built with our clients and government officials. When we all work together, it’s the community that benefits.

TLL: Tell us about the projects you are working on now.

JP: I am working on many projects, large or small. Due diligence matters, zoning determination letters, sign permits, special use permits, and research are short-term projects but always ongoing. I am also working on larger projects that incorporate planning techniques and will enhance transportation. I have the opportunity to work with clients based around the United States and there is always something to learn from it.

TLL: What is your role with the Prince William Design Review Committee?

JP: I am the Administrator of a few Design Review Committees for large projects in Prince William County including Reid’s Prospect and Wellington Glen. It is mostly mixed-use projects with many components. It is interesting to see projects come together. Not everything can be contemplated at the time of the entitlement. Having a Design Review Committee review project components that involve architecture, layout, signage, and other details throughout the process is helpful in creating a comprehensive development.

TLL: When you’re not working as a planner, how do you spend your free time?

JP: I had a baby in May—Hannah is 5 months old and such a joy! She is destined to like geography and planning because my husband is also a planner and we decorated the nursery with a rainbow theme that includes continents and geographical maps and images. We cannot wait to travel with Hannah. There’s so much to show her about urban forms. We’ll try not to bore her with too much planner talk, but it’s in both our DNA. We live in Old Town Alexandria, where there is so much to see and do with Hannah. I love its uniqueness and realized back in college, during my Washington Semester, that I wanted to live there.

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

JP: We love to travel, so visiting Australia, and London is on our list.

TLL: Do you have a hero or heroine?

JP: I know most people say this, and I will say it too, my parents. I would not be where I am today without them. They encouraged and supported my education. My mom actually heard about The Land Lawyers before I fully understood a planner’s role at a law firm. And, boy, am I glad she did. This is the only place I have worked since college and feel very lucky to have found this job. I work with such smart and dedicated support staff, and intelligent and experienced attorneys and planners. I am especially grateful for having had the opportunity to work alongside Susan Flanigan, a planner who recently retired from the firm.

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

JP: The Land Lawyers are a very close-knit group and it’s because of the people. We are dedicated to our work and that positively influences our office environment.

TLL: Thank you, Jessica!

Larry & The LandLawyers Rock the House at the Second Annual Law Rocks Fundraiser

Posted on October 13, 2016December 19, 2018 by thelandlawyers

They may not have scored the Number 1 slot on the Billboard charts, but when the final decision was handed down, Law Rock’s Rock Panel of Judges found in favor of all the musicians who participated in the battle-of-the-bands fundraising concert. All of us at the firm are especially proud of Larry & The LandLawyers, whose performance, donations, ticket sales, and firm sponsorship benefited HomeAid Northern Virginia.

On September 22, 14 dedicated law firm bands’ fans from around the DMV packed the acclaimed 9:30 Club to raise money for their favorite charity and Law Rocks, a non-profit organization that hosts a series of concerts headlining legal professionals from around the globe. Larry & The LandLawyers, performing for HomeAid Northern Virginia, were one of the bands competing for the title of top fundraiser and the coveted Judges’ Choice Award.

Larry & The LandLawyers took the stage early and got the joint jumping with an impressive and energetic set of cover songs by well-known rock legends including Elvis Costello. Their rendition of The Slickee Boys “Gotta Tell Me Why” earned the band a thumbs-up from 9:30 Club sound engineer Gus Vitale. Bass player John Rinaldi pulsed life into the Police hit “Driven to Tears,” and drummer Larry Clark anchored Billy Idol’s “Rebel Yell” with perfectly timed beats. Lead guitarist Mike Kieffer shredded during Van Halen’s “Panama,” the band’s closing number and clear crowd pleaser. The only thing that could have possibly set the crowd reeling would have been a high-flying scissor kick from lead singer Mark Goetzman.

Noise in the Basement, a seven-member band of legal professionals from Venable LLP and LexisNexis was the top fundraiser, and IM Beats, an all-female acoustic duo from Irwin Mitchell LLP, won the Judges’ Choice Award. By evening’s end, the event had set a new one-night record, raising more than $115,000.

If you’d like to give, donations are still being accepted. Click here, and be sure to select Team Larry & The LandLawyers – HomeAid Northern Virginia. HomeAid Northern Virginia, a successful and dynamic non-profit started by members of the Northern Virginia Building Industry, builds and renovates housing and shelter facilities for the organizations that own or operate them. To learn more about HomeAid Northern Virginia and support their local programs, visit www.homeaidnova.org.

To learn more about Law Rocks, click here. To see images from the event, visit them on Facebook. You can also watch Larry & The LandLawyers’ performance at the 9:30 Club on You Tube.

City of Fairfax Adopts Revised Zoning and Subdivision Ordinances

Posted on September 15, 2016December 19, 2018 by Matt Allman

Source: City of Fairfax Zoning Ordinance

On July 12, the City of Fairfax City Council unanimously voted to adopt revised versions of the City’s Zoning and Subdivision Ordinances.

The adoption of the revised ordinances represents the culmination of an extensive, multi-year drafting and public engagement process designed to streamline and modernize the City’s zoning and subdivision regulations. During the public review process, City Staff and consultants held a series of community meetings and work sessions with the City Council, Planning Commission, and other boards and commissions to gather feedback and refine the proposed amendments.

Developed with input from community members, business representatives, and developers, the revised ordinances:

are reorganized into new, easy-to-use formats;
streamline application review procedures;
provide a more predictable set of land use regulations by increasing reliance on objective standards, rather than discretionary special approvals;
eliminate confusing and outdated language;
modify certain dimensional and use criteria for residential and nonresidential zoning districts;
create a new “Commercial Urban” zoning district; and
modernize signage regulations.

The new Zoning and Subdivision Ordinances will go into effect October 1. For more information, please visit the City of Fairfax Zoning Rewrite project webpage here, which includes links to the final adopted Zoning Ordinance and Subdivision Ordinance.

Good Deeds

Posted on September 15, 2016December 19, 2018 by Antonia Miller

Source: Image of George Wythe by Longacre, James Barton (1794-1869) [Public domain], via Wikimedia Commons. Thomas Jefferson (Library of Congress Exhibition)

Antonia is an attorney in the Real Estate Transactions and Commercial Business Transactions practice group. This is her first column in a series about the firm’s charitable and volunteer activities.

George Wythe, the nation’s first professor of law, and one of his star pupils, Thomas Jefferson, were two of the earliest proponents of the citizen lawyer ideal. The premise of this philosophy is that lawyers should not only strive to be excellent legal craftsmen (and craftswomen), but also good citizens and leaders of their communities, states, and nations.

When I first learned about the citizen lawyer ideal in law school, I thought it was just that—an ideal that was rarely practiced. Much to my surprise, during my five years with The Land Lawyers, I have found that many of the attorneys at this firm epitomize, whether knowingly or not, the qualities of the citizen lawyer first promoted by Wythe and Jefferson.

Beginning next month, Virginia’s Land Sense will feature a monthly column highlighting the community service and involvement of one of the firm’s employees. To kick off the “Good Deeds” column, here is an overview of some of the community activities the firm and members of the firm have been involved in thus far in 2016.

Starting in early 2016, Arlington employees began participating in the Everybody Wins! DC Power Lunch Program. Through this program, volunteers made the short trip over to Key Elementary School on a weekly basis to read with their student mentees. During these sessions, firm employees had the opportunity to turn their attention from reading contracts and proffers to reading about the Berenstain Bears and Fly Guy!

This summer, the firm also participated in the HomeAid Northern Virginia 2016 Backpack Challenge. Through donations from members of the firm, 25 backpacks were donated, making going back to school easier for children in the D.C. Metro Area.

Finally, members of the firm participated in the 2016 Legal Mushball Classic held at the Washington Nationals Youth Baseball Academy. Although the firm’s team put in a great showing and finished second in a field of 21 teams, the real winners were the children of the Academy, an organization that uses the sports of baseball and softball to foster positive character development, academic achievement, and improved health among youth from underserved communities in Washington, D.C.

Avoiding the Homeowners Association Disclosure Packet Pitfall

Posted on September 15, 2016December 19, 2018 by Erin Thiebert

Source: Roger Snyder

If you are a builder, management company, or HOA in need of updating an incomplete or outdated disclosure packet, The Land Lawyers can help you prepare the proper documentation and avoid any difficulty that might arise prior to a residential closing.

Residential builders and sellers often find themselves scrambling just before a residential real estate closing to provide a complete and current disclosure packet, as required by the Virginia Property Owners’ Association Act. The Act (Virginia Code Title 55, Chapter 26) dictates the contents of this disclosure packet and burdens the seller with the obligation of getting it into the purchaser’s hands for review prior to closing.

The Act provides the purchaser with the right to walk away from an executed contract upon delivery of the seller’s disclosure packet, or if a seller cannot provide it at all. The seller usually asks its HOA’s management company to deliver the packet to the purchaser. The management company is limited by the Act on both the amount it can charge for providing the packet as well as when that payment is due. Tension can arise between the seller and the HOA’s management company if the management company delivers a packet that does not comply with the Act or if the management company attempts to collect fees from the seller prior to settlement. This can place the seller in the awkward position of trying to enforce the Act against the HOA at a critical time in the transaction.

The packet must include key information that the Virginia legislature has determined a prospective purchaser should know before making the leap to home ownership within an HOA. This includes any HOA governing documents that will be binding on the purchaser, such as declarations of covenants, bylaws, architectural guidelines, and resolutions of the HOA’s board. The packet is required to specifically address restrictions on flags, solar collection devices, and signage applicable to the purchaser’s lot. The HOA’s financial information must also be included, such as the purchaser’s annual assessment amounts (including any possible special assessments), the financial statements and budgets of the HOA, current reserve studies, and whether the HOA may be embroiled in a lawsuit. Other information with regard to insurance, HOA approvals of changes to improvements on the purchaser’s lot, and lot violations are also addressed. The HOA is bound by the information in the packet, even if that information is erroneous.

Once delivered, the purchaser has only three days to review the packet and determine if the benefit of owning a home in an HOA, coupled with the amenities provided, exceeds the burden of the financial assessments, rules, and restrictions that are an unavoidable part of membership in an HOA. If the purchaser fails to provide timely notice to the seller that it is terminating the contract, or if the purchaser never receives the packet and then closes on the lot anyway, the purchaser’s right under the Act to walk away from the contract terminates.

HOAs can avoid running afoul of the Act, causing unnecessary stress on potential sellers and the aftermath caused by delivering incorrect information, by ensuring the packet contains all of the required information and is updated regularly to reflect changes in assessment amounts and take into account any new legislation.

For more information about disclosure packets and their fee schedules, or if you need help updating disclosure packets, email or call Erin Thiebert at 703.680.4664. You can also visit the VPOR website to learn more about the Property Owners’ Association Act, and DPOR’s website where you can download the Disclosure Packet Cover Sheet and find additional information about the maximum allowable fees owners can be charged for information they must provide to potential purchasers.

Employee Spotlight – Antonia Miller

Posted on September 15, 2016December 19, 2018 by thelandlawyers

It wasn’t until Antonia Miller spent a summer working with The Land Lawyers that she realized her interest in real estate transactions and commercial business transactions was like solving complex puzzles. She admits she was fortunate to have found a fitting and agreeable career opportunity and today is grateful to be cultivating her Midwestern values in her Northern Virginia backyard.

The Land Lawyers: You work in the Real Estate Transactions and Commercial Business Transactions practice group in Arlington. What got you interested in this field of law and when did you realize that it would be your career?
Antonia Miller: If you had asked me in law school, I would have honestly said I had no idea what a Real Estate Transactions and Commercial Business Transactions attorney did, but I was fortunate enough to have the opportunity to work as a summer associate with Walsh, Colucci, Lubeley & Walsh. During my summer with the firm, I realized that the Transactions team was a great fit for me, both personally and professionally. It may not be for everyone, but I really enjoy the challenge of drafting a complex agreement. To me it is like a puzzle. I love that no two deals are ever the same and that we are always problem solving and coming up with creative solutions to help our clients address the unique development challenges they face.

TLL: What do you enjoy most about your work?
AM: I cannot say enough good things about our clients and their influence on today’s landscape in the DMV. It is very rewarding to know that I was even a small part of some of their beautiful and beneficial projects. I truly value the opportunity to be part of the team that helps their vision for a new development become reality.

TLL: You are a Power Lunch Reading Mentor with Everybody Wins!DC and a volunteer court-appointed special advocate with the CASA program. Tell us about your role as a reading mentor and the work you do with CASA.
AM: I just started the Power Lunch Reading Mentor Program this past winter and for 50 minutes every other week I have the privilege of turning my attention from reviewing and drafting contracts and complex development agreements to reading Fly Guy and Berenstein Bears. I think I look forward to it more than my mentee does. The CASA program allows me to appear before judges in Arlington and Alexandria and advocate for the best interest of vulnerable children and families in the community. I like to joke that even though I am an attorney, I am only ever in court through my volunteer work. What I really value about my involvement with both programs is that they give me an opportunity to interact with members of my community I might not otherwise get a chance to meet in my work life or personal life.

TLL: Virginia’s Land Sense, the firm’s monthly newsletter, will debut a new column in this issue. Can you tell us about it?
AM: There are so many members of our firm who are leaders in our community and are involved with so many great programs and organizations. I wanted to give them a chance to be recognized for their involvement and educate others about various opportunities to get involved in the community. Walsh Colucci encourages its attorneys to be involved because it recognizes the value of having attorneys that are well-rounded people who make time to give back and engage with their community.

TLL: When you are not working on contracts and closings, reading to students, or writing about The Land Lawyers work in the community, how do you like to spend your spare time?
AM: I am a huge sports fan. I also have a love/hate relationship with running. My husband and I also recently bought a house so on a nice day you can probably find me doing some yard work. I think it is the Midwesterner in me!

TLL: What’s your favorite meal?
AM: My grandmother’s homemade pasta and pasta sauce. It was a tradition in our family to always have a bowl of pasta at Thanksgiving sitting right next to the turkey. No one ever went hungry!

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?
AM: The people. Not just our wonderful clients, but also the attorneys, paralegals, and staff. What initially attracted me to the firm was that I knew employees stayed for the long term. I knew I wanted a firm that allowed people to grow and develop and made them want to stay, and I am glad to report that is exactly what I have found here at Walsh Colucci. My family lives in the Midwest so I am lucky to have so many co-workers that have become like family to me.

TLL: Thank you, Antonia!