The Land Lawyers Blog

Subdivision/Easement Deeds: One Size Does Not Fit All

Posted on by Bryan Guidash

After many months of working through a site plan or subdivision plan, builders, developers, business owners, or even individual homeowners will find they have almost reached the finish line. At that point, their engineers have advised them that they need a subdivision/easement deed to complete the process. The requirement for such a deed is fundamentally the same in all counties, cities, and towns in Virginia that require them – to accompany the plat dedicating public right-of-way and various easements in furtherance of an approved plan. Depending upon the jurisdiction, however, the form, content and processing of the deed can vary widely.

Interestingly, Virginia law does not require the use of subdivision/easement deeds per se. In fact, Section 15.2-2265 of the Code of Virginia, 1950, as amended, provides that an approved plat in proper form:

shall operate to transfer, in fee simple, to the respective localities in which the land lies the portion of the premises platted as is on the plat set apart for streets, alleys or other public use and to transfer to the locality any easement indicated on the plat to create a public right of passage over the land. The recordation of such plat shall operate to transfer to the locality, or to such association or public authority as the locality may provide, such easements shown on the plat for the conveyance of stormwater, domestic water and sewage, including the installation and maintenance of any facilities utilized for such purposes, as the locality may require.

Historically, the dedication of public right-of-way and the grant of these easements were accomplished throughout Virginia merely by the recordation of plats. In a number of rural jurisdictions, that remains the preferred method even today. Over time, though, particularly in urban and suburban areas, zoning and subdivision ordinances have expanded their reach in the development process, site plans have become more complex, and many jurisdictions have established their own departments of public works and/or public utility authorities. These changes have brought about a greater need to define and allocate the terms and conditions of various easements (e.g., maintenance responsibility) and have increased the reliance upon subdivision/easement deeds.

In northern and central Virginia, most jurisdictions have developed some sort of form subdivision/easement deed. For example, the suggested forms in Loudoun, Fairfax, and Prince William Counties are comprehensive and cover everything from subdivision to street dedication, storm drainage easements, water and sanitary sewer line easements, landscaping easements, buffers, conservation areas, trails, sidewalks, retaining walls and a host of other matters. In addition, many counties have Assistant County Attorneys and paralegals dedicated, in whole or in part, to processing subdivision/easement deeds. Although these jurisdictions have attempted to include as much as they can anticipate, these forms are not all-inclusive. For example, as site plans continue to evolve with new technology and methodology, items such as alternative drainage systems can lead to alterations in the language of a form deed or a storm water management maintenance agreement required to accompany such deed. WCL&W has many years of experience working with the planning and development offices and the Assistant County Attorneys and paralegals in these jurisdictions to adapt subdivision/easement deeds where appropriate.

In other jurisdictions, the form deed is not as comprehensive, and the County Attorney’s Office is not as hands-on when it comes to processing such deeds. For example, the form deeds in Stafford and Spotsylvania Counties are limited to street dedication, storm drainage easements, and water and sanitary sewer line easements. Although many public and private easements may appear on the plats for a project, they are not covered in the form subdivision/deed. Therefore, a judgment call has to be made whether to include these easements in the form deed or to address them in a separate instrument. Also noteworthy is the fact that the Planner assigned to a particular plan has a very active role in reviewing the deed in these jurisdictions. Therefore, different approaches to the process may be required depending on the assigned Planner. Again, WCL&W has extensive experience working with the planning and development offices and the Assistant County Attorneys and paralegals to adapt their deeds where appropriate and to make decisions on addressing items not contemplated in the County’s form deed.

In summary, jurisdictions throughout the Commonwealth of Virginia have various processes and requirements with respect to subdivision/easement deeds. WCL&W has a tremendous amount of experience assisting its clients in navigating these requirements in the counties, cities, and towns of northern and central Virginia. We welcome the opportunity to assist you with your project needs in this arena.

“Envision Courthouse Square” Approaching Final Planning Phase

Posted on by Admin

Building ImageArlington County is currently in the process of developing a concept plan for a new civic center at Courthouse Square. This planning effort, known as “Envision Courthouse Square,” aims to update and improve the 1993 Courthouse Sector Plan Addendum to address public open space and cultural resources and to identify a potential location for a 300,000+-square-foot County office building and a cultural facility.

Other objectives include determining appropriate uses and sizes for surrounding public and private buildings, improving circulation networks in the area, and developing recommendations for the long-term sustainability of Courthouse Square. The ultimate goal of this planning process is to integrate a network of buildings and outdoor areas to create a lively, pedestrian-friendly, mixed-use square that will serve as the civic heart of Arlington County.

Throughout the concept planning process, County Staff has solicited input from the Courthouse Square Working Group (a team of investors, sponsors, and community representatives chosen by the County Board), various County Commissions, neighborhood and civic groups, and interested members of the public. In September 2014, based on feedback received from these various stakeholders, County Staff released three design concepts.

Through an ongoing civic engagement process, County Staff gradually refined its recommendations for the new Courthouse Square. In mid-October 2014, Staff released a single concept design that incorporates the most desirable elements of the original three designs. The primary attribute of the current concept plan design is the replacement of the existing Courthouse parking lot with a public park. The plan also features several new public and private buildings framing the square, increased ground-floor retail opportunities, a pedestrian promenade, improved and relocated Metro entrances, pedestrian and transit circulation upgrades, and a potential civic/cultural programmable space at the south end of the square. On October 29, 2014, the Working Group met with Staff to offer feedback on preliminary recommendations relating to circulation and parking, open space, building size and use, cultural resources, and sustainability.

The Working Group will conclude its review of the Staff recommendations at its next meeting (scheduled for November 19). Staff has tentatively scheduled a work session with the County Board for early December 2014. At this meeting, Staff will present the concept plan design and associated recommendations and solicit guidance from the County Board on several key issues. Using the input received at this work session, Staff will then initiate the Sector Plan update process, which will run through late spring of 2015 and include further opportunities for public input.

Potomac Shores Update

Posted on by Admin
Community Map
Courtesy of SunCal

The efforts of the WCL&W team assisted SunCal in fulfilling its vision for Potomac Shores, a mixed-use development that includes approximately 1,885 acres with up to 3,987 homes and 3.7 million square feet of commercial space, including a hotel, town center, marina, 18-hole Jack Nicklaus Signature Golf Course, a VRE station and a substantial public and private amenity package. Highlights of the project include maintaining 45% of the site as natural open space, transportation solutions, 10 miles of natural trails, a section of the Potomac Heritage National Scenic Trail as part of the overall pedestrian network, elementary and middle school sites and approximately 55 acres for recreational fields, including two lighted artificial turf fields.

In October, there was a groundbreaking ceremony for The Shores Club, a 13,000 square foot recreational and social center that will serve the residents of this Potomac waterfront community. A groundbreaking ceremony for the Potomac Shores VRE Station took place in July and was attended by Governor McAuliffe and Secretary of Transportation Aubrey Layne.  The Potomac Shores Golf Course opened in the Spring of 2014.

 

Virginia Supreme Court Hands Down Decision on Mechanic’s Lien Claims

Posted on by John Rinaldi

BlindJustice6web 215x240A few recent changes in Virginia Mechanic’s Lien Law will affect both developers and contractors. Two of the changes are statutory; the other comes in the form of a decision handed down by the Supreme Court of Virginia.

The first statutory change provides that an unlicensed contractor cannot claim a mechanic’s lien if a valid contractor’s license or certificate is required for the work performed. The change also requires that the Memorandum for Mechanic’s Lien include the license or certificate number of the contractor claiming the lien, the date the license or certificate was issued, and the date it will expire. If no license or certificate number is included, the Memorandum for Lien must certify that a license or certificate was not required for the work in question. The statute includes a carve-out stating that any inaccuracy in the license information will not bar the perfection of the mechanic’s lien if the contractor can otherwise be reasonably identified in the records of the Board for Contractors. This carve-out is to prevent a mechanic’s lien from being declared invalid if the contractor simply has a typographical error or other mistake in reciting the license number in the Memorandum for Lien.

The other statutory change makes it a Class 5 felony to maliciously file a fraudulent mechanic’s lien knowing that such lien is false. Class 5 felonies are punishable by a term of imprisonment of not less than one year nor more than ten years, and/or confinement in jail for not more than twelve months and a fine of not more than $2,500. While this new provision of the Virginia Code may make certain unscrupulous contractors think twice before filing a questionable Memorandum of Lien, it will probably be difficult to prove that the contractor filing an invalid lien did so “maliciously” and with knowledge that the lien was false. As a practical matter, it may be difficult to convince local prosecutors to pursue crimes of this nature unless the facts are particularly egregious.

The Virginia Supreme Court’s recent decision regarding mechanic’s lien claims arose out of the construction of the New Life Anointed Ministries International Church in Woodbridge. Jack Bays, Inc., acted as the general contractor and employed numerous subcontractors. Unfortunately, New Life came up short in its ability to pay Bays, which ultimately led to a mechanic’s lien for nearly $6 million in addition to multiple mechanic’s liens filed by the various subcontractors. After the Prince William County Circuit Court ruled in favor of the mechanic’s lien claimants, the lender on the project appealed to the Supreme Court of Virginia.

The Supreme Court made a number of clarifying rulings with respect to mechanic’s lien claims. Most significantly, the Court clarified the time in which a contractor may file a Memorandum of Lien. Generally, a contractor must file a Memorandum of Lien within 90 days after the last day of the month in which the contractor did work, but in no event later than 90 days from the date that work is “otherwise terminated.” In this case, even though Bays stopped work more than 90 days before filing its Memorandum of Lien, the subcontractors continued to do some contract work, and some demobilization work, after Bays notified New Life that it was no longer going to work on the project. The Supreme Court held that because the contractors continued to work on the project, the work was not “otherwise terminated” on the day Bays stopped work. Therefore, Bays had additional time in which to file its Memorandum of Lien.

The court also clarified provisions of the 150-day rule, which potentially invalidates any liens that include work done more than 150 days from the last day on which the lien claimant performed work. What is most notable about this case is that the Court determined that the “last day of work” for purposes of filing a lien might, in some circumstances, be different from the “last day of work” for purposes of the 150-day rule. The Court also held that the “last day of work” might be different for each contractor and subcontractor, depending on the circumstances.

While the Court’s opinion does not announce any sweeping changes in Virginia Mechanic’s Lien Law, it does clarify numerous “gray areas” and issues that prior decisions regarding mechanic’s liens have failed to address. As the saying goes, Virginia mechanic’s liens “are very easy to file, but damn near impossible to enforce.” In this particular case, the contractor and subcontractors were able to enforce their liens. More significantly, however, this case demonstrates how a mechanic’s lien can bring a project to a halt if the lien claim is not dealt with quickly and appropriately. The liens in question were all filed in December 2007. The Supreme Court issued its opinion regarding the liens in February 2013 — five years and two months after the liens were initially filed. The project sat dormant the entire time. What’s more, the Supreme Court remanded the case to the Circuit Court for further proceedings and for the Circuit Court to take the steps necessary to sell the property to satisfy the liens. So, the parties still had not come to a final resolution of the case after more than five years of litigation.

Statute Crafted from Koontz Decision to Remedy Unconstitutional Overreach

Posted on by Admin

Aerial ImageOn June 25, the Virginia General Assembly passed a statute spurred by the U.S. Supreme Court decision in Koontz v. St. James River Water Management District, a case arising out of Florida. The statute provides a remedy for a violation of federal constitutional law for a locality’s imposition of an “unconstitutional condition” in the form of a mandatory dedication of real property or an exaction of money. These conditions can be a “taking” under the Fifth and Fourteenth Amendments.

An unconstitutional condition is one that mandates the surrender of property in connection with land use approvals when forced dedication of property bears no legitimate connection to a proper public purpose or, if such a connection exists, the dedication demanded is not “roughly proportional” to the need generated by a given development. For example, it would be unconstitutional for a locality to require dedication of right-of-way for a four-lane divided highway in connection with a special use permit for a kennel. This has neither the necessary relationship between the demand and the exaction, nor is it “roughly proportional” to impact.

Koontz went even further than existing law, for it is now clear that the denial of a permit on the grounds that the landowner refused to consent to an unconstitutional condition, or the exaction of money, may constitute a taking. Florida had claimed that if a permit is denied there is no condition imposed, and no taking can have occurred. The Supreme Court observed that a land developer is uniquely vulnerable to governmental overreach in pursuit of approvals, and that the exercise of one’s development rights cannot be conditioned upon surrender of a constitutional right.

Florida had in place a statutory remedy for such takings, and although Virginia has long had a provision for “inverse condemnation” claims, it had no specific Koontz remedy. The bill was thus crafted to provide a state law remedy for situations the U.S. Supreme Court would find constitutionally defective as uncompensated takings.

The bill is brief but powerful. If a locality imposes an unconstitutional condition on essentially any kind of land use permit, the landowner can take legal action within the 30 or 60 days currently applicable to appeals of zoning actions, and site and subdivision plans. The same holds true if the locality denies the permit for failure to consent to such a condition. If the landowner demonstrates that a condition is unconstitutional, it can be compensated for the taking and obtain a court order mandating approval of a permit without the unconstitutional condition. Moreover, and of potentially great significance, if notice of objection to the condition has been given by the landowner, and if the court finds that the unconstitutional condition was a “factor” in the grant or denial of a permit before governmental action, then the court must assume that it was the controlling factor. The locality must then prove that its proposed condition or its denial of a permit was valid by “clear and convincing evidence.” In these circumstances, the dreaded “fairly debatable” standard will not apply.

As important as this statute may prove to be in reining in governmental overreach, it is also important to recognize that it does not make all proffered dedications of property or exactions of money unconstitutional. It will remain a question of fact.

The statute, which went into effect July 1, 2014, adds the following section to the Code of Virginia:

§ 15.2-2208.1. Damages for unconstitutional grant or denial by locality of certain permits and approvals.

A. Notwithstanding any other provision of law, general or special, any applicant aggrieved by the grant or denial by a locality of any approval or permit, however described or delineated, including a special exception, special use permit, conditional use permit, rezoning, site plan, plan of development, and subdivision plan, where such grant included, or denial was based upon, an unconstitutional condition pursuant to the United States Constitution or the Constitution of Virginia, shall be entitled to an award of compensatory damages and to an order remanding the matter to the locality with a direction to grant or issue such permits or approvals without the unconstitutional condition and may be entitled to reasonable attorney fees and court costs.

B. In any proceeding, once an unconstitutional condition has been proven by the aggrieved applicant to have been a factor in the grant or denial of the approval or permit, the court shall presume, absent clear and convincing evidence to the contrary, that such applicant’s acceptance of or refusal to accept the unconstitutional condition was the controlling basis for such impermissible grant or denial provided only that the applicant objected to the condition in writing prior to such grant or denial.

C. Any action brought pursuant to this section shall be filed with the circuit court having jurisdiction of the land affected or the greater part thereof, and the court shall hear and determine the case as soon as practical, provided that such action is filed within the time limit set forth in subsection C or D of § 15.2-2259, subsection D or E of § 15.2-2260, or subsection F of § 15.2-2285, as may be applicable.

 

One-Million Square Feet of Mixed Use Approved in Arlington

Posted on by Admin

On June 14, 2014, Virginia land use attorney, Nan Walsh, presented to the Arlington County Board a project comprised of approximately 1 million square feet located in Rosslyn, on behalf of Monday Properties. Specifically, the County Board approved a major redevelopment plan known as 1401 Wilson Boulevard and 1400 Key Boulevard, located at the prominent intersection of Wilson Boulevard between N. Nash Street and N. Oak Street. Under the C-O-Rosslyn zoning district and site plan approval, Monday Properties will pursue the development of a 28-story, 273-unit, residential building and a 24-story, 524,135 sf office building.

The development includes a number of community-serving elements including a 44,409 sf full-service grocery store, 11,000 sf of street-fronting retail along Wilson Boulevard wrapping onto N. Oak Street (with 100 dedicated parking spaces for the retail uses), and over one acre of open space that includes public plazas and multi-use spaces. This project is the first in Arlington to incorporate the concept of an “18th Street Corridor” in the form of a pedestrian through-block connection from N. Nash to N. Oak Streets as called for in Arlington County’s “Realize Rosslyn” Plan, a long range planning document for the future of Rosslyn that is still a work-in-progress.

The application of the 18th Street Corridor concept, which is an east/west pedestrian and vehicular connection through Rosslyn, to the Monday project, takes the form of a 30-foot wide public pedestrian thoroughfare that will be open to the public 24/7 and will be surrounded by public gardens with a variety of active and passive design elements. Both the residential and office buildings include high-quality architectural design and materials that are contemporary and yet reminiscent of an earlier design era in Rosslyn’s development history. An interesting feature of the redevelopment includes a commemorative element memorializing the iconic Watergate scandal that began with Bob Woodward’s encounter with the informant known as “Deep Throat” in the parking garage of the existing building at 1401 Wilson Boulevard.

Mixed Use Approval

Amendment Allows New Hotel in Arlington

Posted on by Admin

On March 15, 2014, the Arlington County Board unanimously approved a General Land Use Plan Amendment, rezoning, and site plan to allow an 161-unit hotel at 2401 Wilson Boulevard in the Courthouse area of Arlington, VA. The Arlington County Board also approved a use permit to allow a Unified Residential Development to permit four (4) single family homes to provide a transition from the hotel to the Lyon Village neighborhood. The hotel will feature a hotel-branded bar as well as an approximately 1,300 square foot restaurant.

2401 Wilson Blvd 448x336

Representing Schupp Companies, Nan Walsh worked closely over the last several years with the Lyon Village Civic Association to ensure that the hotel provided an attractive and appropriate transition from the high-density Rosslyn-Ballston corridor to the low-density single family neighborhood. The new Arlington hotel is planned to be a Hyatt Place and Schupp Companies hopes to break ground this summer.

Virginia Square/Latitude Site

Posted on by The Land Lawyers

At the November 16, 2013 Arlington County Board Hearing, Board Member, Libby Garvey, stated that [She] ” …felt it was one of the best changes we could make for the community and although she hears the importance of the Sector Plan, she supports the motion.” She was affirming her position on voting in favor of the Penrose Group’s rezoning and site plan for the block bounded by Fairfax Drive, North Monroe Street, 10th Street North and North Nelson Street in Virginia Square. The County Board approved this site plan, 3 votes to 2, for a twelve-story, 265 unit residential building with ground floor retail, a cultural space, two connected public plazas and 262 below-grade parking spaces. The building will be LEED Gold and LEED EBOM certified and includes a kinetic art sculpture in the Fairfax Drive plaza. The site plan received bonus density for the LEED certifications as well as for the provision of affordable housing in the form on 14 on-site units, 11 of which are two bedroom units.

Conceptual Image

Nan Walsh, assisted by Megan Rappolt and Elizabeth Nicholson, partner and land use planners respectively with Walsh, Colucci, Lubeley & Walsh, P.C. worked through the County Site Plan process with Tysons-based developer, Penrose Group. The project, called “The Latitude” was deferred at its July 2013 Planning Commission hearing due to a concern about the residential use not being compliant with the guidance in the 2002 Virginia Square Sector Plan. At the July Planning Commission hearing, the County Manager recommended an Ad-Hoc Committee comprised of Planning Commissioners and citizens who opposed the project to review the Sector Plan text specific to this project. The Ad-Hoc Committee resulted in no consensus and a four month deferral of the case. On November 6, 2013 The Latitude returned for a second full public hearing before the Planning Commission and left with another recommendation for deferral.

Given that the case would rise and fall on a policy question, the outcome of the case was uncertain, until the County Board took their final vote. During her County Board presentation, Nan Walsh said that the plan addressed 95 Virginia Square Sector Plan goals. In making her case for the residential project, she continued “The plan before you not only checks the Sector Plan boxes, but checks them more boldly than its office counterpart could.” In addition, Walsh stated, ” By way of example, I would submit to you that our site plan today provides more open space, more interesting architecture and tapering, greater building setbacks from our neighbors, better/more inviting pedestrian connectivity around and through the site, 630 less daily automobile trips, and a variety of housing types and affordability than its office counterpart would provide.”

After 34 public speakers, evenly split on the case, and nearly five hours of public hearing, Board Members Fisette, Tejada and Garvey voted to approve the project. Tejada indicated that his vote had come down to the applicant’s provision of on-site affordable housing in such close proximity to the Virginia Square Metro station. Board Member Fisette stated that this is not to be a precedent in regard to the Sector Plan, but that he thinks this will be a positive addition to community. He said that he likes the open space, energy efficiency, affordable housing, and cultural amenity provided with the project.

Nan Walsh Braves High Winds and Neon Vest at Topping-Out Party

Posted on by Admin

picture of Nan

Nan Walsh with Cecelia Cassidy, Editor and Publisher of the publication “Rosslyn” at the 1812 N Moore Street Topping-Out Party

Nan worked for 2 years with Monday Properties on the zoning entitlements for their landmark building located at 1812 N. Moore Street in Arlington. This 35-story, 390-foot high office building is now the tallest building in the region. It is located in the heart of Rosslyn and when leased will contain approximately 580,000 square feet of office, 12,000 square feet of retail and direct access to the Rosslyn Metro Station.