The Land Lawyers Blog Archives - Page 25 of 31

Detailed Lease Provision Trips Up Tysons Corner Landlord Causing Loss of Anchor Tenant

Posted on April 6, 2015 by Andrew Burcher

On January 13, 2015, the Fairfax Circuit Court ruled that a Tysons Corner landlord was in violation of a co-tenancy provision in a 24-year old lease provision requiring “quality retail establishments which sell the highest quality good and which are ‘luxury’ tenants selling premium brands.” The ruling in Fairfax Square LLC v. Hermes of Paris, Inc. (Case No. 2014-06509), provides a cautionary tale to landlords and a good lesson for tenants about using specific examples in lease negotiations.

The case was brought by the landlord after Hermes, an anchor tenant since the mall opened in 1990, sent a notice of default of the co-tenancy provision. Hermes complained that certain new tenants, including USAA Bank, high-end appliance seller Miele, and local jeweler Liljenquist & Beckstead, were not “luxury” tenants and counterclaimed seeking a declaration that landlord was in default.

The court analyzed the co-tenancy provision as a restrictive covenant and required Hermes to prove the restriction. Under the precedent of Scott v. Walker, 274 Va. 209 (2007), the court construed the restrictive covenant against Hermes and resolved any ambiguity in favor of the free use of land. The court ruled that the co-tenancy provision contained latent ambiguities and permitted parole evidence supporting the parties’ positions, including interpretation of what the references to “Tiffany, Fendi and Gucci” meant. The court ultimately determined that the new tenants were not “luxury” tenants on the same scale as Tiffany, Fendi, and Gucci and found the landlord in default allowing Hermes to terminate the lease prior to the end of the 2020 term.

In Virginia, residential leases are governed by the Virginia Landlord Tenant Act, but Virginia law imposes few statutory requirements on commercial landlords. Instead, the relationship between commercial landlord and tenant is governed strictly by the terms of the lease subject to traditional contract law principles. Because Virginia procedure provides that commercial lease disputes arising through an unlawful detainer action may be decided in the General District Court, a court not of record, the vast majority of lease disputes do not result in reported opinions from either the Virginia Supreme Court or the local Circuit Court. Most of these types of lease disputes involve a tenant’s inability or failure to pay rent, how and when a tenant will vacate the premises, and ultimately how much a defaulting tenant will owe its landlord. Accordingly, the decision in Fairfax Square v. Hermes provides a framework for practitioners who draft commercial leases to better understand how a court might interpret the non-monetary provisions of a lease. Under its guidance, landlords should be careful to avoid detailed examples that, if not met, would allow a tenant to terminate a lease early without penalty. Likewise, tenants should push for detailed specific examples that, if not met, can provide a justification for claiming a non-monetary default by a landlord.

Unanimous Approval to Redevelop County-owned Lewinsville Senior Center

Posted on April 6, 2015 by thelandlawyers

Source: Wesley Housing Development Corporation

On March 3, 2015, the Fairfax County Board of Supervisors unanimously approved a special exception amendment and comprehensive development agreement with Wesley Hamel Lewinsville LLC (“Wesley Housing”) for the redevelopment of the County-owned Lewinsville Senior Center. Shareholder Evan Pritchard represented Wesley Housing in securing the approvals, which will allow for the construction of a new independent living facility and County facilities on the site.

The site is currently home to the Lewinsville Center, which includes 22 units of affordable senior independent housing operated by Fairfax County as well as a senior center, an adult day care center, and two privately operated child care centers, all housed in a former elementary school building. With the approvals, the existing Lewinsville Center will be replaced with a new, LEED Silver County building that will house the senior center and both the adult and child day care centers. In addition, a second, EarthCraft Multi-Family certified building will be constructed that will include a total of 82 units of affordable senior independent housing. The project will also feature a multi-use trail along Great Falls Street, a new playground, an athletic field, and innovative storm water management facilities.

Private Heliport Approved for 540-Acre Farm Site in Western Loudoun County

Posted on April 6, 2015 by Christine Gleckner

Source: Paul M. Schaaf

Christine Gleckner, Land Use Planner in WCL&W’s Loudoun office, recently obtained approval for a unique special exception application permitting a private heliport in western Loudoun County. Our client, a licensed helicopter pilot who travels between numerous business locations and several farms in the region, owns and operates a business based in Sterling. The existing 60-by-100-foot concrete pad will be used as a helicopter landing pad, and the foundation of an existing 6,540-square-foot barn will be used to construct a hangar for the helicopter.

At the time the special exception application was submitted, only two federally recognized heliports existed in Loudoun County, one at Loudoun Hospital Center and the other at a Bluemont FEMA location. Our client’s heliport is one of the first residential heliports in the County.

Despite our client’s voluntary efforts to restrict the heliport to personal use and implement a number of additional mitigation measures, opposition surfaced shortly after the application was filed with the County. While much community support for the application existed, the vocal opposition expressed the belief that the heliport would unduly interfere with horses and the rural ambience of western Loudoun County. With the assistance of Paul M. Schaaf, an aviation consultant hired by our client, we were able to demonstrate that the arrival and departure of the helicopter from the vast 540-acre farm would not be disruptive to the rural environment. Our client agreed to follow the Helicopter Association International’s “Fly Neighborly” program practices and to make the landing pad available for emergency helicopter use as part of the approval. With the special exception approval in hand, our client plans to construct his primary residence on the property and place the farm under a permanent conservation easement.

Eminent Domain and Transportation Updates in Northern Virginia

Posted on April 6, 2015 by Michael Coughlin

Virginia Eminent Domain Statutes Amended … For the Better
By Michael J. Coughlin and Samuel A. Irvin

During its most recent session, the Virginia General Assembly amended portions of Virginia’s eminent domain statutes to clarify that businesses and farmers affected by a total taking of the property they rent or own are entitled to recover lost profits. The Virginia Department of Transportation has been interpreting the lost profits statutes to apply only to businesses affected by partial takings, which raised questions regarding both fairness and constitutionality under the U.S. Constitution’s Equal Protection Clause and the “special laws” prohibition of the Constitution of Virginia. Now, based on the new amendments to the Virginia Code (Sections 25.1-100 and 25.1-230.1), lost profits are clearly recoverable by businesses and farmers affected by either a partial or total taking if certain criteria are met, which was likely the General Assembly’s original intent when it adopted the lost profits statutes in 2012.

Despite the amendments, however, the statutes do not treat all parties claiming lost profits equally: there is a longer period of recovery for businesses and farmers affected by partial takings (three years) than for those affected by total takings (one year). This remaining discrepancy could be the basis for constitutional challenges to the statutes, which makes it probable that the General Assembly will revisit the issue in future sessions.

Senator Creigh Deeds was the patron of Senate Bill 1435, the original version of the bill that was ultimately amended by the House of Delegates. The new versions of Virginia Code Sections 25.1-100 and 25.1-230.1 can be found here.

Major Road Projects, Gas Pipelines, and Power Lines Will Alter the Landscape If Approved
By Michael J. Coughlin and Matthew A. Westover

With the new funding mechanism firmly in place for transportation projects, VDOT and localities throughout Virginia are advancing major road improvement projects. The list of projects is too long to put in one place, but one such project that will have significant repercussions for property owners and commuters is VDOT’s plan to widen I-66 from the Beltway to Haymarket. This plan would include two High Occupancy Toll (HOT) lanes in each direction and ensure three regular lanes in each direction. Two alternatives are being studied: one includes a median to accommodate future transit; the other does not. A draft environmental impact statement will be presented in May at a public hearing. Many commercial and residential property owners are affected by this project, not only due to the road widening, but also because of the addition of new ramps, storm water management facilities, and park-and-ride facilities. More information on this project, and the possible changes to I-66 “Inside the Beltway” at transform66.org.

VDOT is not the only body moving forward with public improvement projects that will significantly affect property owners. Dominion Resources has partnered with three other major U.S. energy companies on a project that, if approved, will literally alter the landscape of rural Virginia. The Atlantic Coast Pipeline project proposes to use fracking to extract natural gas from the Marcellus and Utica shale basins of West Virginia, Ohio, and Pennsylvania and transport it through pipelines to the Hampton Roads area and North Carolina. If approved by the Federal Energy Regulatory Commission, the pipeline will be more than 550 miles long, generally in new right of way, and will significantly affect property owners along the route both temporarily and permanently.

To study potential routes, Dominion, through its affiliate, Atlantic Coast Pipeline, LLC, has informed hundreds of property owners that it intends to enter onto their property to conduct surveys and studies. Many of these property owners have contested Dominion’s ability to do so in legal challenges that are moving through various Virginia Circuit Courts as well as the United States District Court for the Western District of Virginia. Notwithstanding these challenges, FERC has begun its official review of Dominion’s proposal, and Dominion hopes to receive approval from FERC in the summer of 2016. If approved, Dominion will have the power of eminent domain to acquire the necessary easements for the gas line. More information on this project can be found here.

Dominion is also proposing a 230 kV power line upgrade affecting Remington, Warrenton, Vint Hill, and Gainesville. Some new right of way may be required as existing lines are upgraded to 230 kV. State Corporation Commission proceedings have begun. More information can be found here.

Finally, Dominion is also proposing a new 230 kV power line to feed a new substation west of Haymarket. Several routes have been proposed, including paths that run west of Route 15 south into Haymarket, north to south from Wheeler to Haymarket, and east to west from Gainesville to Haymarket. New right of way is needed for all of these routes, which generally run through existing communities and planned, or constructed, commercial properties. Dominion has not selected a preferred route, and no firm date for a State Corporation Commission filing has been set. More information can be found here.

If you require assistance in an eminent domain matter, or would like more information about these or any other projects, please contact Michael J. Coughlin, head of the firm’s Eminent Domain Practice Group.

Lake Anne Redevelopment Approval: Evolution of a Vision

Posted on April 6, 2015 by Inda Stagg

Source: Lake Anne Development Partners LLC

Following years of effort by Lynne Strobel and Bill Keefe on behalf of Lake Anne Development Partners LLC, a redevelopment proposal for the historic Lake Anne Village Center and Crescent Apartments was approved. Upon completion, a diversity of housing types and retail and commercial uses connected by well-designed outdoor spaces and trails will result in a community where residents can live, work, play, and shop consistent with Robert E. Simon’s original vision.

The existing 181 multi-family affordable rental units that currently comprise Crescent Apartments will be replaced with up to 185 affordable rental units in the first phase of development. 732 market-rate multi-family units, 120 townhomes, 77,960 square feet of office use, and 58,213 square feet of retail use were also approved.

The Crescent Trail, a new, 10-foot-wide multi-use trail, will link the new residential and commercial areas to Washington Plaza and Lake Anne. Starting at the northeast portion of the trail, pedestrians and cyclists will pass by a series of open spaces and rain gardens that terrace down to North Shore Drive. From that point, visitors and residents will arrive at an amphitheater on the western side of North Shore Drive that transitions into the retail plaza. The plaza will contain a variety of shops and restaurants and will host, among other community activities, an existing, successful farmers’ market.

The redevelopment approvals were associated with a comprehensive agreement between the Fairfax County Board of Supervisors and Lake Anne Development Partners LLC. Tom Colucci negotiated the agreement with the Office of Community Revitalization and other Fairfax County representatives to create a public/private partnership addressing the financial and transactional aspects of the redevelopment proposal.

Legislative Update: Collection of Cash Proffers on a Per-Unit Basis

Posted on April 6, 2015 by Peter Dolan

By Pete Dolan and Jonelle Cameron

Source: Anderskev, via Wikimedia Commons

On March 19, 2015, Governor Terry McAuliffe signed Senate Bill 1257, eliminating the sunset provision of an important statute regarding timing of proffer payments. Prior to 2010, proffer payments on a per-unit basis were to be paid at the building permit stage. During the recession, however, Code Section 15.2-2303.1:1 was created, which required a delay of such proffer payments until prior to (and as a condition of) obtaining a certificate of occupancy. Because the bill was created during the housing crisis, it was subject to an expiration date. SB 1257 eliminates that expiration date, making the statute permanent.

In addition, SB 1257 eliminates the expiration date of a 2009 Act of Assembly that lowered the cap on the administrative costs a County could charge a developer for dedication of a public right of way from 25% to 10% of the actual construction cost.

Without SB 1257, both Code Section 15.2-2303.1:1 and the 10% cap on administrative costs would have expired on July 1, 2017.

The complete text of Virginia Code Section 15.2-2303.1:1 can be found here.

Sellers and Buyers of Real Property Advertised “As Is” Should Beware

Posted on March 12, 2015 by Michael Kalish

Source: Susan Lynch

Buyers and sellers of real estate should take note of a recent opinion from the Supreme Court of Virginia that clarifies the line between “buyer beware” and fraud.

In the matter of Devine v. Buki, the seller of a 200-year-old residential property in Northumberland County known as “Rock Hall” undertook renovations of the structure in 2005 before placing the property for sale in 2006. The seller, through a local Realtor, then advertised the property as having been “completely restored.”

In 2007, the seller entered into a sales contract with the buyers that explicitly stated the seller made no representations or warranties with respect to the property and that Rock Hall was being sold “as is … with all defects which may exist, if any, except as otherwise provided in the real estate contract.”

The buyer then retained two separate inspectors to inspect the property. The first noticed evidence of a water stain and mold, but told the buyers he found “nothing that would cause him to tell a potential purchaser not to buy Rock Hall.” The second inspector noted moisture and insect damage in the basement, but found no evidence of infestation in the home and believed the moisture issues were “not out of the ordinary for the area.” The buyers closed on the purchase of Rock Hall after requesting minor repairs related to the visible water stain.

After closing on the property, the buyers noticed excessive leaking and hired contractors to inspect the property again. The contractors inspected the siding of the home and noticed that some of the siding and corner posts had been replaced with new material. When they removed the newer siding, they found substantial rot and termite damage. The buyers sued the seller for fraud and for violating the Virginia Consumer Protection Act.

The seller, who didn’t deny that he concealed damage to the property, attempted to rely on the fact that the contract specifically stated that the property was being sold “as is” and that no representations or warranties were being made with respect to Rock Hall’s status. Ultimately, the Supreme Court held that it didn’t matter whether the false statements or concealment by the seller occurred before or after entry of the contract. Because of this, neither the “as is” clause nor the inspectors’ failure to catch the actual extent of the damage relieved the seller of his prior acts of concealment. The Supreme Court affirmed the trial court’s decision to rescind the sales contract and award attorney’s fees to the buyers.

Although no new rulings of law came out this action, the decision serves as an excellent starting point for buyers considering whether to pursue action against a seller when a previously unknown condition is found after the sale of property. On the one hand, buyers’ failure to obtain affirmative representations or warranties and the use of an “as is” contract did not cause a death knell to the case for this buyer. On the other hand, the seller did not deny that he had taken affirmative steps to conceal damage to the property despite marketing it as “completely renovated.” One wonders whether the buyers would have achieved the same result if the seller had challenged the extent of his alleged concealment and not relied so heavily on the “as is” clause. Either way, sellers of real property should take notice that an “as is” contract alone will not necessarily shield them from consequences of their actions and statements made with respect to the property for sale.

Cathy Puskar Wins Approval for City of Alexandria Senior Living Facility

Posted on March 12, 2015May 21, 2019 by Amy Friedlander

Source: Urban, Ltd.

On February 21, 2015, after more than two years of development review and a six-hour public hearing including 53 speakers representing both sides of the issue, the Alexandria City Council approved a rezoning and development special use permit for the 66-unit Alexandria Memory Care Center by a required 6–1 supermajority vote. The Center, adjacent to the Woodbine Rehabilitation and Nursing Facility on King Street, will serve as a senior living facility specifically designed to provide care for 66 residents with Alzheimer’s disease or other dementias.

WCL&W shareholder Cathy Puskar represented the applicant, 2811 King Street, Inc., and led the development team through the long and controversial review process. Cathy and the development team worked with City staff and the community to address issues associated with the applications including building mass and scale, architecture, site design, tree preservation, affordability, and other technical items.

The approved Center meets the high bar set by City staff and the community to ensure compatibility with the adjacent residential neighborhood while addressing the critical need for senior assisted living facilities set forth in the City’s Strategic Plan on Aging. In consideration of Alexandria’s strong commitment to its seniors and the provision of affordable housing, two beds at the Center will be provided at a 40% subsidy for the life of the facility. Cathy’s counsel and determination brought this arduous and contentious process to a successful conclusion.

Around Prince William County: Latest Entitlements Keep Walsh Colucci In Demand

Posted on March 12, 2015December 17, 2018 by Jessica Pfeiffer

WCL&W is in demand in Prince William County. The firm’s attorneys and planners have secured entitlement approvals for six projects in and around the county: LongPointe, Rivergate, SunCap Property Group’s FedEx Ground Distribution Center, Elite Shooting Sports, and Cowles Nissan.

LongPointe
By Susan Flanigan

Source: Belno, LLC/C.W. Ralston Architects

Mike Lubeley and Susan Flanigan represented Belno, LLC, and Horner Road L.C. on the rezoning application of approximately 22 acres in a prime location at the I-95/Prince William Parkway interchange in eastern Prince William County. The Board of Supervisors approved a mixed-use project that includes a nonresidential component containing a maximum of 415,000 square feet of gross floor area. The project will incorporate office, hotel, and convenience/service retail (including first-floor retail in multi-story office buildings) and a 216-unit multi-family component. The central design feature of the project is a ½-acre central plaza area that will be developed with a combination of landscaping, hardscape, and a water feature. The initial phase of the development will include off-site transportation improvements to complete the intersection of Telegraph Road and Caton Hill Road, the residential building, and a hotel or office building. The balance of the office/hotel will be constructed in Phase 2.

Rivergate
By Susan Flanigan

Source: Rivergate Holdings, L.C./Heffner Architects, P.C.

Mike Lubeley, Jay du Von, and Susan Flanigan worked with the IDI Group Companies over the past three years to secure the approval of the redesigned Rivergate project, located in North Woodbridge overlooking the Occoquan River. The 720-unit, upscale, multi-family residential development will be located in two buildings (4–6 stories in height), each with its own package of recreational and social amenities. The buildings will be built in the “Texas donut” style, which includes structured parking completely surrounded by units to create an engaging and pedestrian-friendly streetscape. Considerable time was spent with various community groups educating the public about the challenges and benefits of this pioneering project as a catalyst in the revitalization of North Woodbridge.

SunCap Property Group FedEx Ground Distribution Center
By Marian Harders

Source: SunCap Property Group-FedEx Ground Distribution Center

Jay du Von and Marian Harders received unanimous approval from the Prince William Board of County Supervisors for a rezoning of approximately 32 acres located on Cushing Road. Rezoning to an M-T (industrial/transportation) classification allowed for a ±175,500-square-foot warehouse and distribution facility to be developed by SunCap Property Group for its tenant, FedEx Ground. The rezoning required the applicant and developer to work closely with County staff and adjacent neighbors on realignment plans for Cushing Road and its intersection with Balls Ford Road. The realignment involved moving the existing intersection approximately 305 feet east, redesigning a portion of Cushing Road, and negotiating off-site easements.

Elite Shooting Sports
By Jonelle Cameron

Source: Elite Shooting Sports

Pete Dolan and Jonelle Cameron received unanimous approval from the Prince William County Board of County Supervisors for a special use permit for Elite Shooting Sports, an indoor shooting range located at 7751 Doane Drive in Manassas. This high-tech, 65,000-square-foot building includes four shooting ranges (two 25-yard ranges, one 50-yard range, and one 100-yard range, which total 42 lanes) and various classroom spaces, which include a simulator training room and a planned two-level, live-fire shoot house. Elite Shooting Sports opened to the public in November 2014.

Cowles Nissan
By Jessica Pfeiffer

Source: Cowles Nissan/The Engineering Groupe

Jay du Von and Jessica Pfeiffer successfully completed a special use permit amendment for Cowles Nissan. Located at 14777 Jefferson Davis Highway, Cowles Nissan sought the special use permit amendment to redevelop its existing dealership including the replacement of existing buildings. The existing buildings were constructed in 1980 and 1986 and the redevelopment of the site, which includes future structural parking, will dramatically improve the site’s overall appearance and enhance business operations. The property is part of the Potomac Communities Revitalization Plan.