The Land Lawyers Blog

Five Shareholders Listed in The Best Lawyers in America© 2016

Posted on by thelandlawyers
Source: WCL&W
Source: WCL&W

Best Lawyers© is a peer-reviewed publication listing the most respected legal professionals from more than 70 countries around the globe. This year, Walsh, Colucci, Lubeley & Walsh is ranked nationally in the top tier for Land Use & Zoning and in the metro Washington, D.C., area for Land Use & Zoning Law, Litigation–Land Use & Zoning, Litigation–Municipal, Municipal Law, and Real Estate Law. In addition, five shareholders were recognized as 2016 Best Lawyers in America©. Two of the five shareholders were named Lawyer of the Year: John Foote for Land Use and Zoning Litigation, and Mike Lubeley for Land Use and Zoning Law. John and Mike are joined by Art Walsh, Nan Walsh, and Garth Wainman as Best Lawyers.

The shareholders, associates, and staff at Walsh, Colucci, Lubeley & Walsh are aware of how John, Mike, Art, Nan, and Garth have contributed to make the firm one of the best in Northern Virginia. Here’s a bit of trivia about each of these 2016 Best Lawyers in America that you might not know.

John Foote

Claiming he holds the distinction as the firm shareholder who speaks the best conversational French, John has been with the firm for more than 16 years. When he isn’t writing articles for Land Sense, the firm’s newsletter, John and his wife Rose take bicycle trips to far-off places. They have cycled around South Africa, Ireland, Italy, and France (with the Tour de France nonetheless!). Born in Birmingham, Alabama, John attended Louisiana State University where he double majored in history and philosophy and was elected President of the LSU Student Union. He went on to Officers Candidate School and became, in his words, “the most lackluster infantry officer the United States Army ever sent to war.” What he may not have accomplished on the battlefield he later made up for in law school and his legal career. John had the great pleasure of working at the White House and has sat in the Cabinet Room with President Gerald Ford. After his time at the White House, former Senator Charles Goodell, his White House boss and friend, moved John’s admission to the U.S. Supreme Court. And, the rest they say, est l’histoire. John served as Prince William County Attorney and has been in private practice for the past 26 years. John has been recognized in The Best Lawyers in America since 1999 for Land Use and Zoning Law, Litigation–Land Use and Zoning, Litigation–Municipal Law, and Real Estate Law.

Mike Lubeley

Mike joined the firm’s land use and zoning practice in 1982 and quickly became the attorney to call in Prince William and Stafford Counties for rezoning and litigation. Mike was used to getting calls, except they were typically of the balls-and-strikes variety. At Bishop O’Connell High School in Arlington, he was, unfortunately, the starting pitcher in a game that ended the team’s 42-game winning streak—at the time, the longest winning streak for a high school team. Reportedly, the plaque commemorating this feat can still be found in the Baseball Hall of Fame in Cooperstown. His winning streak didn’t end there though. Mike attended the College of William & Mary and the Marshall-Wythe School of Law. After graduating, he teamed up with another member of the tribe  and that’s how the name Lubeley came to be painted on our office doors. Here are two more bits of trivia about Mike. His favorite charity is Catholic Charities and last year George Mason University’s Center for Real Estate Entrepreneurship appointed him to the Board. In addition to being named Lawyer of the Year, Mike was also recognized in The Best Lawyers in America for Land Use and Zoning Law, Litigation–Land Use and Zoning, Litigation–Real Estate, and Real Estate Law.

Art Walsh

Consistently recognized throughout his career as one of the area’s top lawyers and legal elites, Art is the firm’s founding shareholder. He has been instrumental in achieving approvals for redevelopment in Arlington and Fairfax Counties representing numerous clients in the rezoning and planning along the Dulles Airport corridor and the newly constructed Silver Line in Tysons, as well as handling a number of condemnation cases for the HOT Lanes construction on I-495. Just after graduating from The College of William & Mary, Art joined the Army and went through Officer Basic Training with tennis great Arthur Ashe. Arthur gave a tennis clinic but time was a precious commodity and back then squeezing in a round of golf was (and still is) Art’s priority. Needless to say they both went on to achieve great things—Arthur on the tennis court and Art in the law. Art went back to William & Mary for law school and since then has lectured on zoning, land use, and commercial real estate at the Marshall-Wythe School of Law. This past February, he was awarded the school’s prestigious Alumni Medallion. Art is also known for his charitable contributions, raising more than $1.6 million over the past 16 years for the Juvenile Diabetes Research Foundation. 2016 marks the 20th year Art has been listed in The Best Lawyers in America for Land Use and Zoning Law and Real Estate Law.

Nan Walsh

Setting and reaching goals comes naturally to Nan, the firm’s managing shareholder. In college she played three varsity sports (soccer, ice hockey, and track), majored in math and wrote her final thesis on electromagnetic wave motion. Between college and law school, Nan worked at the Environmental Protection Agency and continued to focus on long-distance running, which culminated in a personal record of three hours, three minutes at the Mardi Gras Marathon. It comes as no surprise then that Nan runs the walk (pun intended) and talks the talk—hard work equals achieving goals. Asked to explain the firm’s success in a recent Wall Street Journal article, she had this to say: “At the end of the day, our responsibility is to get the job done. We help our clients cross the finish line.” No argument here. And no argument that Nan is the firm’s best athlete. She made The Best Lawyers in America 2016 list for her contribution to Land Use and Zoning Law.

Garth Wainman

After graduating from Trinity College, playing Division III hoops and keyboards in a coffeehouse band, Garth quickly realized that no one was going to pay him to play basketball or music for a living. He took a job selling Pringles for Procter & Gamble all over New England. A year into the job, P&G offered him a management position, which he turned down and set his sights on law school. Inspired by Perry Mason reruns, he pursued a legal career in litigation and business. This diehard Boston Red Sox fan crossed the Mason-Dixon Line and settled in Northern Virginia attending American University School of Law in Washington, D.C. His decision to pass on the Pringles paid off. These days, his heart, home, family and practice are here in Northern Virginia. Although Garth prefers lobstering and fishing off the Keys to Cape Cod, he has cheerfully adopted the Washington Nationals as his “second home team.” Garth was selected by his peers for inclusion in The Best Lawyer in Americas 2016 for Commercial Litigation.

Congratulations to John, Mike, Art, Nan, and Garth on your selection to the The Best Lawyers in America 2016.

Is Your New Home Contract Implied Warranty Waiver Enforceable?

Posted on by Garth Wainman
Source: Wikijazz
Source: Wikijazz

Virginia Code §55-70.1 provides new home purchasers with a number of implied warranties. It is common, however, for a new home contract to include a provision waiving those warranties and replacing them with a limited builder warranty. While many homebuilders and their attorneys believe the waiver provision will protect the builder from potential liability, some Virginia court decisions have interpreted Section 55-70.1 in a way that few legislators or real estate attorneys could have imagined. Until the legislation is amended, something our firm will be working on for the next legislative session, we wanted to put our builder clients on notice of the problem.

Virginia Code § 55-70.1 provides that vendors engaged “in the business of building or selling [new] dwellings, shall be held to warrant to the vendee that, at the time of transfer of record title or the vendee’s taking possession, whichever occurs first, the dwelling together with all its fixtures is sufficiently (i) free from structural defects, so as to pass without objection in the trade, (ii) constructed in a workmanlike manner, so as to pass without objection in the trade, and (iii) fit for habitation.” This warranty extends for one year from the date of transfer of record title or the date the vendee takes possession, whichever occurs first, with the exception of the warranty for structural defects in the foundation of new dwellings, which extends for five years from such date.

The same Code section allows the parties to waive the implied warranties by contract. In order to effectively do so, however, the waiver must strictly comply with the statute. First, “the words used to waive, modify or exclude the warranties [must] state with specificity the warranty or warranties that are being waived, modified or excluded.” For example, if the parties intend to waive the implied warranty that the dwelling is “fit for habitation,” the waiver provision must expressly and specifically state that warranty is being waived. A Richmond circuit court has held that a builder’s new home contract language waiving “all of the implied warranties under Virginia Code 55-70.1” did not comply with the statute and was an ineffective waiver.

Second, in order to be effective, the waiver must be conspicuously “set forth on the face of such contract in capital letters which are at least two points larger than the other type in the contract.” The Fairfax County Circuit Court has held that a builder’s implied warranty waiver provision was unenforceable, even though it specifically named all of the warranties and was in all capital letters, because the font size used was not at least two points larger than the other type in the sales contract.

Third, if all implied warranties are waived, the contract must state in capital letters at least two points larger than the other type in the contract that the dwelling is being sold “AS IS.” One circuit court has interpreted this language to mean that if all of the implied warranties provided by Virginia Code § 55-70.1 are to be waived, the waiver must still use the language “AS IS.” While this interpretation may be a literal reading of the statute, it exhibits a lack of understanding of almost all new home sales in Virginia. The vast majority of new home builders waive the statutory implied warranties, provide a replacement limited builder warranty, and do not intend to sell the home “AS IS.” Nevertheless, under this interpretation of the statute, the sales contract must say that the sale is “AS IS” in order to waive the implied warranties, even if the homebuilder is providing an alternative limited warranty.

The risk of having the court determine that your homebuyer can use the implied statutory warranties against you creates a serious problem for builders. The court will now replace the more objective standard under your limited builder warranty with the far more elastic and subjective standard of the statute—i.e., whether the home you built is “free from structural defects…, constructed in a workmanlike manner…, and fit for habitation.” As you would expect, these standards can mean whatever your most problematic homeowner wants them to mean.

If you have any questions about whether your contract language effectively waives these implied warranties, please call Garth Wainman or Matt Westover at (703) 680-4664.

Two Residential Rezoning Applications Approved for Prince William County

Posted on by Marian Harders
Source: LDC
Source: LDC

On behalf of HC Land Company LC, Walsh, Colucci, Lubeley & Walsh Shareholder Jay du Von and Land Use Planner Marian Harders obtained approval from the Prince William County Board of Supervisors for two companion rezoning applications located in the Coles Magisterial District and Potomac Magisterial District. Land planning and engineering was provided by Land Design Consultants.

Known as Mallard Overlook North and Mallard Overlook South, the combined project area consists of approximately 107 acres of A-1 (Agriculture) divided by Minnieville Road near its intersection with Route 234. The project area is surrounded by older homes, which were developed for well and septic fields. Over the years, some of the homes have experienced well and septic system failures. The ability to bring water and sewer to the adjoining neighborhoods was a key component to the rezoning approval process and brings with it a significant benefit to the surrounding community.

The projects will yield 94 single family detached homes with more than 40 acres of undisturbed open space.

Cayden Ridge Approval Will Now Include Residential Development

Posted on by Marian Harders
Source: Smith Engineering
Source: Smith Engineering

On behalf of Miller and Smith, Shareholder Jay du Von and Land Use Planner Marian Harders successfully obtained approval of a 149-unit development off Signal Hill Road that includes a Comprehensive Plan Amendment and a rezoning. The 57-acre site was planned for office uses but, given the existing surrounding residential development pattern, the Board approved re-planning of the project area from office to residential. The homes will use a cluster design with two upscale housing styles that blend in with the surrounding community. In addition, the development contemplates a number of significant transportation and pedestrian trail improvements, which will bring enhanced multimodal connectivity facilitating resident activity in the area.

Special Events and Hospitality Come With a View at Sunset Crest Manor

Posted on by Christine Gleckner
Source: Sunset Crest Manor, LLC
Source: Sunset Crest Manor, LLC

Sunset Crest Manor is a recently approved special event and hospitality venue located in southern Loudoun County. The applicant knew the existing manor house, party barn, and other accessory structures located on 94 acres adjacent to Bull Run with views of the Blue Ridge Mountains was a special location perfect for hosting special events, weddings, and off-site corporate meetings. When Loudoun County adopted new zoning ordinance regulations expanding opportunities for hospitality businesses and uses in rural settings in 2014, the Sunset Crest Manor zoning applications were underway and ready to make use of the new regulations. Land Use Planner Christine Gleckner assisted Sunset Crest Manor with an array of land use applications enabling the facility to start small as a Bed and Breakfast Inn and expand to a Country Inn with Restaurant and eventually to a Rural Retreat without the need for additional legislative zoning approvals, while also receiving approvals for concurrent use as a Banquet/Event Facility and Conference and Training Center. Each of these is a separate use category in the zoning ordinance with separate performance standards governing each use. The Sunset Crest Manor proposal successfully wove together an unprecedented number of land-use applications—11 in total—and achieved unanimous approval from the Board of Supervisors in July 2015 due to its embodiment of Loudoun County’s vision for its rural areas.

2015 Virginia General Assembly Legislative Summary

Posted on by Andrew Painter
Source: By Anderskev
Source: By Anderskev

With lots of lawmaking, and little drama, the legislature concluded its 46-day session one day early for the first time in 15 years. Even more surprising, the budget was balanced and adopted on time, and was signed without further amendments or vetoes, for the first time since 1998. Everyone labeled the session a success — even Governor Terry McAuliffe, who saw some of his key legislative efforts rejected.

On land use, the legislature passed bills related to affordable housing, Boards of Zoning Appeals, asbestos and new home inspections, and more. The General Assembly also permanently extended the prohibition on localities accepting cash proffers until occupancy permit, and passed legislation allowing the creation of farm distilleries. The legislature also addressed claims of lost profits in condemnation cases and mandated that Planning Commissions pass commercial subdivisions and site plans within 60 days.

On transportation, the General Assembly passed bills prioritizing congestion relief as the primary consideration in Northern Virginia road projects, rewrote funding formulas, de-politicized the Commonwealth Transportation Board, and ensured a sustainable funding source for transit.

There was no single high-profile social issue that dominated lawmakers’ debates this year; because this is an election year for all members of the General Assembly, Republicans wanted to show voters they could govern both houses of the legislature since taking over the Senate last summer. Accordingly, the majority caucuses in both houses tried to focus on “kitchen table” issues and refused to hold hearings on many of the most controversial bills (even though many were introduced). Click here to download a PDF of the Summary.

Arlington County Board to Take Action on Rosslyn Sector Plan Update

Posted on by thelandlawyers
Source: Arlington County
Source: Arlington County

The Arlington County Board is poised to vote at its July public hearing on an amendment to the Rosslyn Sector Plan that will have huge implications for future redevelopment projects in Rosslyn. As we reported in Land Sense in January,  the County Board initiated a community-driven process known as Realize Rosslyn in 2012 to update the Rosslyn Sector Plan, which has not been updated since 1992. The goal of Realize Rosslyn is to guide Rosslyn’s growth and development in accordance with the County’s General Land Use Plan and other policy documents.

The multiyear review process has included consideration of building height and massing, parks and open space, and transportation issues that resulted in the adoption of a plan framework in April 2014. Actual draft Sector Plan text  was subsequently developed and released. The draft Sector Plan includes, among other things, site specific recommendations for height, density, and stepbacks that will likely be codified in the County’s Zoning Ordinance. Some of the height and density recommendations for individual sites are below the maximums traditionally approved in Rosslyn, so the County has received a great deal of feedback and expressions of concern from developers and commercial property owners about those and other issues.

As the process of updating the Sector Plan draws to a close, the County Board and staff continue to meet with commercial property owners and other stakeholders in an attempt to address lingering areas of concern. The County Board is scheduled to vote on the new plan at a public hearing to be held on July 22.

Takings & Raisins

Posted on by John Foote
Source: Carl Davies, CSIRO
Source: Carl Davies, CSIRO

On June 22, in one of its last opinions of the 2015 term, the U.S. Supreme Court handed down a decision in Horne v. Department of Agriculture. This case has to do with what are called per se takings in the form of actual physical acquisition of property as opposed to regulatory exactions. The case, involving raisins of all things, has the potential to affect matters like affordable housing ordinances (to the extent that statute or ordinance requires that a developer either pay for, or actually provide, such affordable housing at prices that do not recover the costs of construction). At the very least, it will lead to further litigation regarding such topics.

It appears that the New Deal Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate marketing orders to help maintain stable markets for particular agricultural products. The Raisin Administrative Committee (!) established to impose a reserve requirement that growers set aside a certain percentage of their raisins for the account of the government free of charge is such a marketing order. The Act allows the government to make use of those raisins by selling them in noncompetitive markets, donating them, or disposing of them by any means consistent with the purposes of the program—including destroying them. If any profits are left over after subtracting the government’s expenses, the net proceeds are redistributed to the raisin growers. In 2002–03, raisin growers were required to set aside 47 percent of their raisin crop under the reserve requirement and between 2003 and 2004, 30 percent.

In Horne v. Department of Agriculture, raisin growers Mr. and Mrs. Marvin Horne and their family refused to set aside any raisins for the government on the grounds that the reserve requirement was an unconstitutional taking of their property without just compensation. The government fined them the fair market value of their reserve requirement as well as additional civil penalties for their failure to obey the raisin marketing order.

The Hornes sued and the Ninth Circuit held that the reserve requirement was not a per se Fifth Amendment taking because personal property is afforded less protection under the Takings Clause than real property, and because the Hornes, who retained an interest in any net proceeds, were not completely divested of their property. The Court of Appeals held that, just as in cases allowing the government to set conditions on land use and development, the government imposed a condition (the reserve requirement) in exchange for a government benefit (an orderly raisin market). It held that the Hornes could avoid relinquishing large percentages of their crop by “planting different crops.”

The Supreme Court reversed, holding that the Fifth Amendment requires the government pay just compensation when it takes personal property, exactly as when it takes real property. Any net proceeds the raisin growers receive from the sale of the reserve raisins only goes toward the compensation they received for that taking—it does not mean the raisins have not been appropriated for government use. Nor can the government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.

The decision and the salient elements of the opinion are available here.

Stafford County Comprehensive Plan to Replace “Urban Development Areas” with “Targeted Growth Areas”

Posted on by Jonelle Cameron
Source: Stafford County
Source: Stafford County

Stafford County is undertaking the five-year update of its Comprehensive Plan. The current Comprehensive Plan has been amended several times to meet state code mandates regarding Urban Development Areas (“UDAs”), address policy recommendations, modify land use recommendations, and address future growth.

UDAs are areas designated by a locality in its Comprehensive Plan that are (i) appropriate for higher density development due to their proximity to transportation facilities, the availability of a public or community water and sewer system, or a developed area; and (ii) to be used for redevelopment or infill development, to the extent feasible. In 2007, the Virginia General Assembly mandated that certain high-growth communities, including Stafford County, create UDAs within their comprehensive plans sufficient to meet projected residential needs. In 2012, House Bill 869 provided flexibility for UDAs, making them no longer a requirement of a comprehensive plan. As a result, the Stafford County Board of Supervisors and Planning Commission considered the issue and decided to remove UDAs as a future land use term, instead using the term Targeted Growth Area (“TGA”).

Previously, seven UDAs were located in the vicinities of primary road networks and transportation hubs, and along the rail corridor, to maximize the use of public transportation. These include Courthouse Area, Southern Gateway, George Washington Village, Eskimo Hill, Centerport, Leeland Town Station, and Brooke Station. Under the proposed Comprehensive Plan Amendment, TGAs would replace all UDAs except for Eskimo Hill, which will be eliminated. The proposed amendment also modifies the recommended number and type of dwelling units as well as the amount of commercial space in each of the TGAs. In addition, it adjusts the boundary limits of the Courthouse Area and Southern Gateway TGAs to expand the total acreage.

On July 7, 2015, the Board of Supervisors heard the Comprehensive Plan Amendment proposal and voted 4-3 to send it back to the Planning Commission for further review, asking that the Planning Commission have appropriate recommendations back to the Board of Supervisors by October. For more information, contact Jonelle Cameron at jcameron@thelandlawyers.com, or (703) 680-4664.