The Land Lawyers Blog

Arlington County Proposes Changes to Site Plan Process and Conditions

Posted on by thelandlawyers
Generic Graphic of Plans
Source: Susan Lynch

In response to increasing competition for private investment from neighboring jurisdictions such as Tysons and the District of Columbia, Arlington County is undertaking a number of initiatives to make its development process more business friendly.

As part of this effort, key changes to the County’s standard site plan conditions are currently being proposed. Changes are also proposed to Administrative Regulation 4.1, the regulatory document that guides the site plan submission and review process in Arlington.

Site Plan Conditions

The proposed changes to the site plan conditions are primarily intended to be technical rather than substantive in nature. Examples include eliminating unnecessary language and outdated standards, reorganizing the order of some conditions, and deleting references to plan submission requirements that should be handled at an administrative level.

At some point in the future, the County hopes to make further changes to remove many of the more technical standards and requirements identified in the conditions. Such requirements frequently change and would therefore be more appropriately addressed in a separate public facilities manual or administrative regulation.

Administrative Regulation 4.1

Many of the changes proposed to Administrative Regulation 4.1 are intended to make the site plan process more efficient and less costly for applicants. A prominent example is having the director of the Department of Community Planning, Housing, and Development, rather than the County Manager, accept applications. This would decrease the wait time between filing an application and commencement of the public review process. Another example is reducing the number of plan sets required for submission from 20 full-size sets to eight. This would significantly reduce an applicant’s printing costs, which can accrue rather quickly in Arlington.

Perhaps the biggest change to Administrative Regulation 4.1 is the creation of an optional conceptual site plan review process. This process is intended to give early feedback to applicants on threshold issues such as required streetscape dimensions, building placement, massing, and density before significant design costs are incurred. It would also identify key issues in a development proposal that could be rectified or addressed prior to commencement of the public review process, thereby avoiding potential opposition and costly design changes.

County Staff hopes to have the new conditions and Administrative Regulation 4.1 document implemented in the coming weeks.

2016 Eminent Domain Legislative Update

Posted on by Michael Coughlin
Graphic Logo
Source: Public Domain

The Virginia General Assembly concluded its 2016 session on April 20, and continued its efforts to improve the property rights of Virginians by adopting three eminent domain bills that will become effective July 1, 2016.

Arguably the most significant bill is SB 478, which further strengthens the cost reimbursement provisions now set out in Virginia Code Section 25.1-245. Currently, Section 25.1-245 provides that if a landowner in a condemnation case meets certain procedural requirements, like providing a written appraisal to the condemning authority, the landowner may be reimbursed reasonable costs, fees (other than attorneys’ fees) , and travel costs charged by up to three testifying experts. This reimbursement occurs when the award at trial is 30 percent greater than the condemnor’s final written offer of just compensation. SB 478 provides that this provision remains applicable to a public service company, public service corporation, or railroad in a condemnation case, but it also creates a new code section that applies to all other condemning authorities—VDOT and localities.

This new Section 25.1-245.1 will allow the recovery of these same costs and fees when the award is 25 percent or greater than the condemnor’s initial written offer, but without the requirement to provide a written appraisal to the condemning authority. For the full text of this bill, click here. Hopefully, the legislation will encourage condemning authorities to work with their appraisers to prepare thorough and fair just compensation appraisals so that an agreement with the landowner can be reached well in advance of trial, thereby reducing the costs the landowner must expend in an eminent domain matter.

The second bill, SB 719, amends Virginia Code Section 55-516.2 to provide that when common area owned by a property owners association is condemned, it “shall be valued on the basis of the common area’s highest and best use as though it were free from restriction to sole use as a common area.” This statutory amendment was instigated by a real condemnation case. In that case, handled by another law firm, a Circuit Court judge denied a property owners association’s attempt to introduce an appraisal based on the theory that the property should be valued without regard to the fact that it could only be used as common area due to easement and covenant restrictions. The judge’s ruling resulted in the landowner having no appraiser available to testify at trial. As an aside, it is worth noting that, despite the judge’s ruling, the property owners association was awarded the just compensation it requested.

The third bill, SB 109, relates to the use of commissioners in condemnation cases. Virginia allows landowners in condemnation cases to choose whether to have commissioners, a jury, or a judge decide how much just compensation should be awarded. Commissioners are chosen based on a list provided by the landowner and the condemnor, whereas a jury pool is randomly selected from the landowners in the jurisdiction. Using commissioners in a condemnation case may be beneficial to the landowner if the public views the property positively or if the landowner has a positive reputation in the community, since the landowner can effectively select one-half of the potential pool of commissioners from among people he or she knows personally. While it is rare that a jury cannot be seated in a condemnation case, it can be difficult in some cases to ensure a sufficient number of commissioners appear for the trial. SB 109 seeks to make it more likely commissioners will appear at the trial by requiring the court summon them to appear at least 30 days prior to the trial, as opposed to just seven days prior to the trial under the prior version of the statute.

The General Assembly adopted a fourth eminent domain bill, SB 543, that was ultimately vetoed by Governor McAuliffe on the last day of the session, leaving no time for the General Assembly to override the veto. This bill would have allowed for the recovery of costs (including reasonable attorney, appraisal, and engineering fees) in inverse condemnation cases involving damage to property—i.e., cases in which land is damaged by a public use but without following the necessary condemnation procedures. Currently, Virginia Code Section 25.1-420 provides that these costs and fees are reimbursable in inverse condemnation cases involving a taking of property for public use, but it remains unclear whether reimbursement is available in an inverse condemnation case where only damage to property has occurred. This legislation was intended to match the language in Article I, Section 11, of the Constitution of Virginia, that provides just compensation is owed when property is either “damaged or taken” for public use. The Governor sought changes that would have limited the amount of fees and costs, which changes the Governor thought “would have eliminated the incentive for nuisance lawsuits by unscrupulous attorneys seeking to enrich themselves at taxpayers’ expense in those cases where any actual damage was de minimis.”

Contrary to the Governor’s assertion in his veto explanation, found in its entirety here, the award of attorneys’ fees and costs in inverse condemnation cases are intended to penalize a condemning authority for taking land without following the necessary condemnation procedures, thus forcing a landowner to hire an attorney to protect his or her constitutional rights. Sometimes a taking of land in an inverse condemnation setting has little value, but that does not excuse a condemning authority from following the necessary condemnation procedures. And if the authority chooses to continue to deny the landowner’s right to compensation by fighting the inverse condemnation action, this author believes it is only fair for the landowner to recover any attorneys’ fees and expert fees incurred in pursuing the action. Hopefully, this legislation will be revisited during the next session of the General Assembly and the minor amendment to Section 25.1-420 will ultimately become law.

With so many public projects underway that require the use of eminent domain, it is important that Virginia maintain strong protections for property owners. It is encouraging that this past session of the General Assembly resulted in legislation that helps fulfill the constitutional mandate of just compensation when land is taken for public use.

If you require assistance in an eminent domain matter, please do not hesitate to email Michael J. Coughlin or call 703.680.4664.

Fairfax County Approves Reston’s Tallest Building

Posted on by Andrew Painter
Graphic representation of RTC Office Building
Source: HOK

On June 7, Art Walsh, Andrew Painter, and Bill Keefe obtained PRC Plan Amendment approval from the Fairfax County Board of Supervisors for Akridge/RTC Partnership, LLC’s proposed redevelopment of the RTC Office Building site in the Town Center North area of Reston.

The 2.36-acre site is subject to a PRC Plan approval granted in September 2012, which permitted a 23-story Class A signature mixed-use building consisting of approximately 413,700 square feet of office uses and approximately 5,200 square feet of retail and restaurant uses at a density of 4.08 FAR.

The PRC Plan Amendment permits critical modifications to the building’s massing, architecture, facade, entry plaza, terraces, and parking garage. The changes will allow owner Akridge/RTC Partnership, LLC, to meet current leasing standards, accommodate the demands of discerning office tenants within the Reston Town Center area, and improve the building’s distinctive characteristics as well as its functional design.

As approved, the building will feature a six-story, dramatic atrium lobby that will serve as a distinct corner landmark feature, an expanded entry plaza with outdoor seating and landscaping, and a revised garage façade treatment to foster visual interest. The building will also offer a rooftop terrace offering impressive views of Reston Town Center and the Blue Ridge Mountains. Nearly half of the property’s footprint is set aside for public open space. The project also includes facilities for cyclists, joggers, and pedestrians.

During the review process, WCL&W worked with Fairfax County’s Department of Planning and Zoning staff, members of the Reston Association’s Design Review Board, the Reston Planning & Zoning Committee, the Fairfax County Planning Commission, and the Fairfax County Board of Supervisors. Several issues, including entry points, building height, surrounding trail networks, and visibility, necessitated negotiation and resulted in significant changes to the project’s original architecture, layout, and amenities.

The revisions will allow the proposed building to serve as a defining architectural statement along Reston Parkway. Information on the building’s design may be found here. For more information, email Andrew Painter or call 703.528.4700.

U.S. Department of Labor Redefines Exemptions for Overtime Under the Fair Labor Standards Act

Posted on by Michael Kalish
Graphic Logo
Source: www.dol.gov

This change in federal law significantly increases the minimum salary threshold for overtime pay ineligibility. Thus, many employees currently ineligible for overtime pay will soon be entitled to premium pay for any hours worked beyond 40 hours in a week.

The Fair Labor Standards Act requires employers to pay their employees premium pay for any hours worked beyond 40 in a workweek. Salaried employees employed in an executive, administrative, or professional capacity, however, are exempt from overtime compensation so long as they meet certain salary minimums. These are commonly known as “white-collar exemptions.” In order to qualify as a white-collar employee exempt from overtime eligibility: (1) the employee must be salaried, (2) the employee’s salary must meet a minimum amount, and (3) the employee’s job must primarily involve executive, administrative, or professional responsibilities. The recent final rule increases the minimum salary threshold for white-collar exemptions from $455 per week ($23,660 annually) to $913 per week ($47,476 annually).

Thus, for example, an office manager who currently earns $30,000 per year and qualifies as a “white-collar exempt” employee is ineligible for overtime pay under FLSA for any hours beyond the 40-hour workweek. Once the final rule goes into the effect in December, however, that same employee will be entitled to time-and-a-half pay for time worked beyond 40 hours in a week.

The rule change will also affect employees who are not “white-collar exempt” but are otherwise exempt as “highly compensated employees.” A highly compensated employee must meet a minimum salary threshold, be employed primarily for office or non-manual work, and regularly work in an executive, administrative, or professional capacity. The recent rule increases the salary threshold for highly compensated employees from $100,000 to $134,004 annually. The change in the salary threshold puts highly compensated employees in the 90th percentile of full-time salaried employees nationwide.

To ensure that the exemption tests do not become outdated, the new rule includes a provision that automatically updates the salary and compensation basis every three years based on wage growth. The automatic updates will begin on January 1, 2020, and the Department of Labor will publish a notice of each new threshold in the Federal Register at least 150 days before it is implemented.

Federal law places the burden on employers to keep track of all hours worked and pay earned by non-exempt employees and the FLSA imposes significant penalties on employers who fail to keep adequate time and payment records. Consequently, employers will have to continue to keep track of the hours worked and pay earned by employees to ensure those employees entitled to premium pay receive the correct compensation. Additionally, employers must be careful to update who receives premium pay each time FLSA modifies the salary thresholds.

If you have questions about whether your employees are eligible for overtime, or will become eligible beginning December 1, 2016, you should contact an attorney who can thoroughly review the eligibility requirements with you. Similarly, if you are unsure whether you are keeping adequate pay and hours records for your overtime-eligible employees, please contact your attorney to review your current recordkeeping practices.

This is Stephanie Dinan’s first contribution to Virginia’s Land Sense. She is currently a summer associate with the firm and a third-year law student at William & Mary Law School. Shareholder Michael Kalish edited this article and can be reached directly by email to discuss these FLSA changes and how they may affect your business, or other issues related to the FLSA.

The City of Falls Church Adopts West Broad Street Small Area Plan

Posted on by Andrew Painter
Photograph of Falls Church
Source: The Land Lawyers

Like many communities with aging buildings and infrastructure, the City of Falls Church has seen increased redevelopment activity in recent years, and it anticipates additional development in the near future.

This is particularly true along West Broad Street (Route 7), which has historically served as the City’s major office and retail thoroughfare. Broad Street is also a heavily-traveled commuter corridor with a physical design that can inhibit pedestrian and bicycle mobility. Moreover, redevelopment efforts have, at times, been fragmented, failing to connect the established residential neighborhoods on both sides of the street.

To help provide a conceptual framework for public improvements and a catalyst for new growth, the City Council unanimously adopted the West Broad Street Small Area Plan on April 11, 2016. The West Broad Street Plan follows more than a year of review and provides a refined redevelopment vision for Broad Street between the 300 block of Little Falls Street and the 11000 block of Broad Street.

Developed in accordance with the City’s adopted Comprehensive Plan, the West Broad Street Plan is intended to serve as a reference for property owners and developers as they contemplate redevelopment. It provides policy recommendations on matters such as land use, zoning, mobility and accessibility, innovative and appropriate building design, and the environment. The West Broad Street Plan also encourages the development of activity nodes at key intersections and identifies short-term public improvements the City can make to meet long-term goals (e.g., sidewalk and crosswalk improvements, wayfinding signage, and bicycle parking).

The City Council’s adoption of the West Broad Street Plan follows approval of three other small area plans in recent years, including the North Washington Street Small Area Plan (adopted in June 2012), the South Washington Street Small Area Plan (adopted in October 2013), and the Downtown/City Center Small Area Plan (adopted in June 2014). While none of these small area plans technically amend the City’s adopted Comprehensive Plan, Future Land Use Map, Zoning Ordinance, or Zoning Map, they are intended to provide supplemental, focused policy guidance for relatively small sections of the City.

Interestingly, the West Broad Street Plan’s initial draft text suggested height limitations and potential layouts for new structures. Some property owners expressed concerns that inclusion of such recommendations would constrain new investment and redevelopment. In response, staff revised the plan to deemphasize height and density, and to state that such issues would be reviewed and negotiated in the context of individual legislative applications.

It is hoped the West Broad Street Plan will help the City transform Broad Street from a commuter corridor into a vibrant, walkable, and economically viable destination that reinforces the City’s well-established unique small businesses. Staff estimates that, depending on the scale of redevelopment achieved at full build-out, redevelopment of the remaining underdeveloped parcels along West Broad Street area could yield between $5.9 million and $14.2 million annually in tax revenue.

Additional information may be found on the City’s West Broad Street Plan website.

Building Height Measurement Redefined by Stafford

Posted on by Jonelle Cameron
Illustrative Drawing
Source: staffordcountyva.gov

On April 19, the Stafford County Board of Supervisors unanimously approved a zoning text amendment that redefined how Stafford County measures building height. Prior to this amendment, the method the Virginia Uniform Statewide Building Code (VUSBC) used to measure building height differed from the County’s Zoning Ordinance.

The conflict between the two Codes stemmed from a discrepancy in which elevation points around the structure to utilize when measuring the difference between the ground level and the roof elevation. The discrepancy led to situations where, for example, builders of houses on sloped lots with walk-out basements would have had to lower the height of the houses to comply with the Zoning Ordinance.

Illustrative Drawing
Source: staffordcountyva.gov

 

 

 

 

 

 

The image above demonstrates the old method for determining building height, which used the average of the grade at 20 feet from the structure.

The adopted Zoning Ordinance now reads:

(2) Height of structure. The vertical dimension of a structure as measured from the average elevation of the finished grade at the front line of the building to the highest point of the roof of a flat roof, the deck line of a mansard roof, or the mean height level between eaves and ridge (mid-line of the roof) for a gable, hip or gambrel roof. The height limitations contained in Table 3.1 shall not apply to spires, belfries, cupolas, antennas, communication towers, silos, barns, water towers, ventilators, chimneys, monuments, flag poles or other appurtenances usually required to be placed above the roof level and not intended for human occupancy.

The image below illustrates the new method for measuring height (from the front of the building only.)

Illustrative Drawing
Source: staffordcountyva.gov

 

 

 

 

 

 

The approved Zoning Ordinance is more consistent with the VUSBC and the means of measuring building height employed in other jurisdictions.  This should allow homebuilders and other developers to proceed with designs that are consistent with their models in other jurisdictions. To read the adopted ordinance, click here.

Employee Spotlight – Chuck McWilliams

Posted on by thelandlawyers
Photograph of Chuck McWilliams
Source: Jessica Pfeiffer

Growing up in Woodstock, Virginia, in the 1980s, Chuck was certain of three things: the nearest town to go shopping was Winchester, 30 miles away; he would either become a doctor or a lawyer; and no matter where he went to college or established his career, he would always return to his roots.

Once he decided to pursue a career in law, Chuck’s toughest decision was what practice area to focus on. He had always been interested in real estate development, finance and business matters so after graduating from Hampden-Sydney with a B.A., in Political Science, Chuck decided to take a few accounting classes. He graduated from George Mason University’s School of Management in 2004, earning a B.S. in Accounting and soon after passed the CPA exam. He continued on, and in 2007, he earned a J.D. from George Mason University School of Law. But that was not enough for Chuck. This past year, he earned an LL.M (Masters of Laws) in Taxation from Georgetown University, graduating with honors and distinction. Today, Chuck leads the firm’s tax, trust & estates practice out of the firm’s Winchester office, and divides his time between the Prince William, Leesburg and Arlington offices.

We talked to Chuck this month and asked him to tell us more about his practice, what other degrees he is planning to earn, and when, if ever, does he sleep.

The Land Lawyers: Your degree in accounting proved to be an essential component to your legal practice. Did you ever consider practicing as a CPA?
Chuck McWilliams:  Yes, I actually practiced in public accounting for a while and was a staff accountant with Beers & Cutler, PLLC (now Baker Tilly) where I provided tax, audit, and advisory services for large law firms, accounting firms, and professional groups all over the United States. After law school, I became an associate at Owen and Truban, PLC, where I focused on complex estate, tax, business, corporate, and advisory matters. My local client base consisted of high-net-worth individuals, small businesses, farms, and charities in the Shenandoah Valley. It was the right decision because it applied to both disciplines and my expertise.  In 2005 through 2007, I had clerked for The Land Lawyers; five years later they offered me a position. The opportunity allowed me to establish the firm’s Estate Planning practice, and to open a fourth office in Winchester. Although I do a lot more driving these days, it was a great decision.

TLL: Since joining The Land Lawyers, you earned an LL.M and a Certificate in Real Estate Planning from Georgetown University, and were recently admitted to practice in the U.S. Tax Court, and you were admitted to the District of Columbia Bar and the West Virginia Bar. Do you sleep?
CMW: I don’t, but that’s not the reason why. My wife and I just welcomed our first baby, a daughter, born on February 15.

TLL: Babies will do that. Tell us more about the firm’s Estate Planning practice group.
CMW: I get the privilege of having a diverse practice and working with a wide variety of folks – from small to large business owners, entrepreneurs, farmers, doctors, engineers, and individuals concerned about their financial future– it’s never the same from one day to the next, which is part of what I love about the practice.  Though much of my work does focus on estate, tax and wealth planning, another large segment of my practice involves setting up new businesses, helping those businesses expand, improving their operations, and eventually selling or otherwise transitioning the businesses to other family members.

TLL: Outside of your practice, you conduct education courses for accounting firms, banks, and investment companies and their clients.
CMW: Yes, in fact I’m working on a class for the Trust Department at a large regional bank right now.  The goal of that class will be two-fold.  First, we’ll discuss and develop ways our clients can plan for uncertain economic times; and second, we’ll discuss some popular succession planning tools that can help their clients transition their business to the next generation in a tax-efficient manner before the IRS (or a new President) eliminates those options.

TLL: You’ve written a number of articles for Virginia’s Land Sense, and were recently awarded an honorable mention in the 2015 Mary Moers Wenig Student Writing Competition. Is it possible to tell us about your paper, “Constitutional Challenges to State Taxation of Non-Grantor Trusts” in a paragraph?
CMW:  As our society becomes more mobile the issue of when a trust is subject to taxation at the state level becomes very important.  For some of my larger clients – at least the ones that are not tied down to a physical business with significant hard assets – there are some great planning opportunities available.  I’m oversimplifying this a little bit, but imagine if you could set up an irrevocable trust in Florida, fund the trust with investment assets (a stock portfolio, for example), and have that trust be taxed as a resident of Florida – which has no state income tax – while you get to live in Virginia or some other state.  A Virginia resident would avoid 5.75% in taxes on the income earned by those assets. That’s a huge savings when the trust has significant income! As you might expect, some states don’t appreciate this maneuver; my article focuses on where this strategy works, where it doesn’t, and what states attempt to block these transactions in ways that may be subject to Constitutional challenges.

TLL: You have written and presented on basic estate planning in the community. Where can our subscribers catch your next presentation or find your articles?
CMW:  Well, I don’t have any public presentations scheduled at the moment, but I’m happy to meet with individuals, groups and even communities as a whole to discuss their planning needs. In the past I’ve done presentations for retirement communities, churches, private schools, museums, and for numerous banks.  If you are interested in having me speak with your group, send me an email.

TLL: You keep yourself busy and on top of the latest regulations. What do you do for fun?
CMW: Now that I have a young daughter, I spend most of my free time playing with her and taking her on walks (well, I walk, she rides in the stroller). She’s also been the youngest person in attendance at four steeplechase races this year, and her mother expects her to be on a pony by this time next year, but I’m not encouraging that one. Otherwise, I’m usually skiing during the winter or fishing during the summer, and I also spend time working with several local charities.  I recently worked on the fundraising committee for the Valley Health Cancer Center Campaign, and I’ve also joined the Board of Directors for the Lord Fairfax Community College Foundation.  In fact, I’ll spend much of tonight meeting scholarship applicants and listening to their presentations to determine who will get a year of free tuition thanks to one of the school’s generous donors.

TLL: Is there any place in the world, or universe, you would most like to visit?
CMW:  Though I’ve done quite a bit of traveling, there are a few places still on my bucket list.  I would love to see the Aurora Borealis, so my wife and I are hoping to plan to trip to Iceland in the next few years.  I also want to spend some time in South America –Patagonia in particular – and after those trips are out of the way I really want to head back to Hawaii to explore the rest of the islands.  If I’m lucky I’ll catch a snow fall at the peak of Mauna Kea and get to be one of the few people who have actually skied in Hawaii.  I tried that a couple years ago and though it was quite cold up there the snow did not cooperate.

TLL: What’s the best thing about becoming a dad?
CMW:  Everything. It’s been an amazing experience thus far, and I’m amazed every day by how much my wife is able to accomplish while caring for our daughter.  Though it’s a little scary, I really look forward to my daughter becoming more mobile so we can get out of the house and do more together, and I am hopeful those first words will come soon too!

TLL: What’s your favorite meal?
CMW:  I hate to say it, but anything involving carbs.  Pizza, pasta, corn, rice – most anything unhealthy, although I do love a good salad from time to time.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?
CMW:  The firm has the best atmosphere of anywhere I’ve ever worked. Everyone is friendly and gets along great. It is genuinely a big group of nice, intelligent people – any of whom I would be happy to hang out with outside of work – who are all happy to help if you have questions or simply want to bounce an idea off them.

TLL: Thank you Chuck.

Virginia Enacts Major Legislation Affecting the Use of Conditional Zoning

Posted on by John Foote
Photograph of Virginia State House
Source: Anderskev

In its 2016 Session, the General Assembly enacted SB 549, a proposal generally referred to as the “proffer reform bill.” Governor McAuliffe has signed the bill and it will be codified as Va. Code § 15.2-2303.4. The legislation goes into effect July 1, 2016.

After decades of experience with conditional zoning (a system unique to Virginia), the legislature has acted to preclude localities from requesting or accepting “unreasonable” proffers in connection with new residential development. The three exemptions to the statute’s applicability, which must be studied carefully, all relate to being within close proximity of mass transit or a Metrorail station. Moreover, some jurisdictions, such as Arlington and Alexandria, rely more heavily on conditions of special exceptions or site plans as a means of mitigating the effects of new development, and the proffer reform bill does not apply to those specific legislative approvals.

The legislation was intended to effect a significant change in the use of proffers, principally to assure that proffers mitigate impacts “specifically attributable” to new residential development and to limit their perceived misuse as a means of raising funds from a single industry for public improvements more appropriately funded by general taxation.

Thus, under the new law, a proffer (whether onsite or offsite) will be deemed reasonable only if it mitigates an impact “specifically attributable” to a new residential development or new residential use (as those terms are defined in the statute). In general, the law applies to property that requires a rezoning or proffer condition amendment to allow for new residential development, whether the development is exclusively residential or a mixed-used project with a residential component.

In addition, offsite proffers with respect to the effects of a development on identified public facilities, including offsite transportation, public safety, schools, and parks, must not only meet the “specifically attributable” requirement, but the development must create “a need, or an identifiable portion of a need, for one or more public facility improvements in excess of existing public facility capacity at the time of the rezoning or proffer condition amendment.” For offsite proffers, each development or use must receive a “direct and material benefit” from any such improvement. Proffers for operating expenses of public facilities are precluded, but the locality may “base its assessment of public facility capacity on projected impacts specifically attributable” to the new development or use.

Crucially, no locality may deny any rezoning or proffer condition amendment to which the statute applies where that denial is based in whole or in part on an applicant’s failure or refusal to submit an unreasonable proffer in connection with such rezoning or proffer condition amendment. If an applicant or landowner believes the statute has been violated, the law creates new and detailed procedural requirements with respect to litigation that may be filed. Importantly, actions may only be brought by the applicant, or the landowner if different from the applicant (third parties have no right of action), and suit may be brought to contest any alleged violation, whether the rezoning or proffer condition was approved or denied.

There is, however, a consequential difference in proceedings depending on the nature of the challenge. If an application is denied and the plaintiff proves to the court by a preponderance of the evidence that the applicant refused or failed to submit an unreasonable proffer proven to have been suggested, requested, or required by the locality, then the court must presume—absent clear and convincing evidence to the contrary—that the refusal or failure to make an unreasonable proffer was the controlling basis for the denial. The presumption and burden-shifting provisions do not apply, however, if the suit involves an approved rezoning or proffer condition amendment. Lawsuits may only be filed within 30 days of action by the local governing body, and if not filed timely all right of action is lost. A successful plaintiff may also recover its reasonable attorneys’ fees and costs.

There are many unanswered questions as to the application of this legislation, and early reports indicate that jurisdictions are not yet certain how to respond. Several have already commenced a detailed review of the assumptions underlying their fiscal impact models to more clearly and closely tailor those models to the “specifically attributable” and “direct and material benefit” requirements of the statute. The proof will be in the pudding as both developers and localities find a means of compliance. Virginia’s conditional zoning system has been 40 years in the making, and it will require some time to accommodate the significant change wrought by this legislation.

It is also important to observe that an enactment clause appended to the bill provides that the legislation is only applicable to rezonings and proffer condition amendments filed after July 1, 2016. Rezonings filed before that date (and proffer condition amendments amending rezonings filed prior to that date) are not subject to the law. Some jurisdictions have suggested that an application must be “accepted” as well as “filed” before the effective date, even though the enactment clause only uses the word “filed.” It is but one of many questions yet to be answered.

DDR Corp. Initiates Plan to Redevelop Fairfax Towne Center

Posted on by Sara Mariska
Graphic representation of Fairfax Towne Center
Source: DDR Corp. and Bignell Watkins Hasser

Fairfax Towne Center is a retail development located on approximately 23 acres at the intersection of West Ox Road and Lee-Jackson Memorial Highway (Route 50) in Fairfax County. Cleveland-based owner DDR Corp. seeks to redevelop and revitalize this aging shopping plaza while retaining its mix of established tenants and introducing additional commercial and residential buildings. To facilitate this effort, the Fairfax County Board of Supervisors authorized consideration of an out-of-turn Comprehensive Plan amendment for mixed-use development up to a 1.2 Floor Area Ratio. The plan amendment is tentatively scheduled for public hearings before the Fairfax County Planning Commission and Board of Supervisors on May 4 and June 7, respectively.