On July 16, 2019, the Fairfax County Board of Supervisors unanimously approved “The Mile,” a 3-million-square-foot mixed-use development that will revamp an existing 38-acre office park a half mile from the Tysons Corner Metro Station. The approval allows PS Business Parks to build 10 new mixed-use buildings across eight new urban blocks of the development. Five of the buildings will be residential with supporting retail and four of the buildings include options for either residential, office or hotel uses, plus retail. The remaining tenth building is a 5,000-square-foot retail kiosk. The approved plans include the option for a 300,000 square foot mini-warehouse or storage facility in one of the residential buildings. These new buildings will join the existing Highgate luxury apartments along Jones Branch Road. The County also signed off on a final development plan for The Mile’s first building, Brentford, a seven-story apartment building with 435 units located on Westbranch Drive near the intersection with Westpark Drive. Senior Land Use Planner Elizabeth Baker led the development team through the approval process.

The key design component of The Mile was a series of connected urban parks. 10.5 acres of parks, as envisioned by the County’s conceptual parks plan for Tysons, will be provided. The project’s largest park, Signature Park, will take up almost 5-acres, an entire block along Jones Branch Drive. Signature Park will include a large open lawn area, a performance stage, gaming areas, picnic areas, a children’s play area, a bikeshare station, a one- to two-story food pavilion, and walking, jogging, and biking trails. “It’s a very activated space. It’s designed to be multicultural for adults and children alike,” Baker said. An adjacent 3-acre park will have pickleball courts, yoga lawns, gardens, rock-climbing and water-play areas. “I love the signature park,” said Fairfax County Chairman Sharon Bulova. “It’s really going to be a landmark in Tysons.” PS Business Parks will dedicate the Signature Park to the County but will maintain it as part of their public facility commitment. To meet the need for athletic fields in Tysons, a 330 by 180 foot synthetic turf field will be constructed on the south side of Boone Boulevard near its intersection with Gallows Road.

The project “will really be a lasting achievement in Tysons,” predicted Supervisor Linda Smyth (D-Providence), who moved for the project’s approval.

On August 29, 2019, the Virginia Supreme Court determined in Helmick Family Farm, LLC v. Commission of Highways that the reasonable probability of a rezoning is a factor that should be considered when determining the just compensation owed in a condemnation case. In a 4-3 decision, the Court held that the Culpeper Circuit Court erred when it excluded the landowner’s evidence that it was reasonably probable that its property would be rezoned to a commercial designation at the time of the taking. Walsh Colucci represented the landowner at trial and on appeal.

At the time of the taking, the landowner’s property was zoned Agricultural, but a portion of it, including the property taken by VDOT, was designated as Commercial within the Culpeper County Comprehensive Plan and was within the County’s Urban Services Area. In addition, it had more than 2,000 feet of road frontage on Poor Farm Road and access to Route 666.

Despite these characteristics, VDOT’s appraiser determined that the property should only be valued as if it was agricultural land with no development potential and therefore concluded that it was worth $6,300 per acre. The landowner’s appraiser and zoning expert, on the other hand, believed it was reasonably probable that the property would be rezoned to a commercial designation in light of many factors including the zoning and use of surrounding properties and the Board of Supervisors’ pattern of approving similar rezoning applications. As a result, the landowner’s appraiser concluded that the property was worth $130,000 per acre after comparing it to commercially and industrially zoned properties and applying a discount to account for the inferior zoning.

The Circuit Court, however, excluded the landowner’s evidence related to the reasonable probability of rezoning and would not permit its appraiser to testify. With no experts to support the landowner’s theory of the case, the condemnation commissioners sided with VDOT’s appraiser and awarded $22,592 in compensation.

On appeal, the Virginia Supreme Court reversed the Circuit Court based on “[a]n avalanche of authority from other jurisdictions” that evidence of the reasonable probability of rezoning should be considered. The Court established a framework for determining the admissibility of such evidence under which the landowner bears the burden of proving such reasonable probability of rezoning. According to the Court, factors relevant to establish this reasonable probability include,

the rezoning of nearby property, growth patterns, change of use patterns and character of neighborhood, demand within the area for certain types of land use, sales of related or similar properties at prices reflecting anticipated rezoning, physical characteristics of the subject and of nearby properties and, under proper circumstances, the age of the zoning ordinance.

The Court clarified that even if there is a reasonable probability of its rezoning, the property cannot be valued “as though the rezoning were already an accomplished fact.” Instead, “[i]t must be evaluated under the restrictions of the existing zoning and considerations given to the impact upon market value of the likelihood of a change in zoning.”

In Helmick, the majority of the Court agreed that the landowner proffered sufficient evidence to allow the condemnation commissioners to consider the evidence. As a result, it found that the Circuit Court erred in excluding it and remanded the case back to the Circuit Court for a new trial, where the landowner intends to present its evidence regarding the reasonable probability of rezoning.

For more information about the case or to discuss an eminent domain matter, contact Michael J. Coughlin at mcoughlin@thelandlawyers.com or 703-680-4664.

On September 9, the firm hosted its 22^nd Annual Golf Outing benefiting the Juvenile Diabetes Research Foundation (JDRF) at Westwood Country Club in Vienna. Art Walsh, the golfers, and guests could not have asked for a brighter day to raise money for type 1 diabetes (T1D) research. Golfers enjoyed a full day on the course and finished their rounds just in time for the raffle and live auction. This year the event raised over $80,000, increasing the total amount raised over the past 21 years to approximately $1.6 million.

On behalf of Art Walsh, the firm would like to thank clients, friends, and family who participated in this year’s event and donated generously to JDRF. Online donations to JDRF can still be made by visiting the firm’s fundraising site. Contributions are 100% tax-deductible.

JDRF was founded by parents determined to find a cure for their children with T1D. JDRF has expanded through grassroots fundraising and advocacy efforts to become a powerhouse in the scientific community with more than 100 U.S. locations and six international affiliates. JDRF has funded more than $2 billion in research to date and has made significant progress in understanding and fighting the disease. Our firm is proud to work with JDRF and continue to help find the cure for T1D.

To learn more about T1D, please visit JDRF’s website.

View pictures from this year’s golf outing here!

The time has come to address one of my biggest pet peeves, because it is relevant year-round, and despite providing lectures to banks about all the pitfalls, they still allow their customers to establish joint accounts with someone other than their spouse.

Let me start by noting that a joint account with your spouse is fine; and in fact, preferred, in many respects. For instance, Virginia allows spouses to own property as Tenants By the Entireties (TBE), which is similar to joint with rights to survivorship titling, but it is only available to a married couple. By titling an account as TBE, the owners can take advantage of a simple (though not flawless) form of creditor protection. However, TBE titling with a spouse is not generally problematic; rather, it is titling an account with someone other than a spouse that can cause a number of problems.

In most cases, the scenario starts innocently. For example, an elderly person walks into a bank and tells the teller they want their daughter to sign checks on their behalf. Thereafter, the teller adds the daughter’s name to the account so she can sign checks. We now have a joint account, and the daughter is considered an owner of that account. In most cases, this joint account will also avoid probate, which is another objective of the elderly person. This all sounds great – after all, we just avoided probate and negated the need for a power of attorney, right?

Unfortunately, this is where things can start to go horribly wrong. After all, the daughter is now an owner of the account, so let’s consider a few scenarios:

What happens if the daughter is in a car accident and gets sued, or has other creditors?

The funds in the account are at risk since the daughter is now an owner. While it may be possible to get the funds discharged from the claim, doing so will require the assistance of an attorney, which can get very expensive.

What happens if the daughter withdraws funds from the account?

The daughter can withdraw funds at any time since she is an account owner. However, when she withdraws funds there may be a gift that either falls under the annual gift tax exemption of the parent, or requires the filing of a gift tax return.

What happens if the daughter’s spouse withdraws all the funds from the account using a power of attorney over daughter?

This could be done legitimately, or maliciously; but either way, the bank will honor the spouse’s power of attorney and allow the withdrawal. In addition to the gift tax concerns above, the elderly person will be left to sue the daughter’s spouse, and may or may not win that suit.

What happens if the parent has to qualify for Medicaid?

Joint accounts can impact Medicaid eligibility, as most states assume the applicant owns the entire account regardless of the number of names on the account. Transferring money out of the account may also be problematic, as it may fall within the look-back period for Medicaid disqualification.

What happens if the elderly person wants to close the account?

The co-owner of the account must execute the account closure paperwork.

These are just a few examples of how joint ownership of a checking, savings, or brokerage account can go horribly wrong. The good news is that it is relatively easy to avoid all these problems by using signature authority, a properly crafted power of attorney, or a trust. Granting signature authority on an account is simple at most banks, and it is free. While a grant of signature authority is not a perfect solution (signature authority terminates at the death of the account owner, and does not avoid probate), it is still a better option than joint titling. A properly crafted power of attorney or trust agreement can offer a much more comprehensive solution, but it can take some time and effort to ensure this is done correctly; and this is where a competent estate planning attorney can provide invaluable assistance.

Speaking to an attorney or accountant who is well-versed in tax law will help you make the right decisions for your business and personal real estate investments. To learn more, please visit our Estate Planning & Administration page, or call Chuck McWilliams at (703) 680-4664.