Source: Skip Plitt – C’ville Photography

The Virginia General Assembly concluded its 60-day 2018 session on March 10, 2018, after considering 3,722 bills and resolutions related to a number of high-profile issues.

In many ways, this year’s session was less eventful than most, which was somewhat surprising considering that the November 2017 House of Delegates elections were perhaps the most exciting in recent memory. Following the election, Democrats picked up 15 House of Delegates seats and whittled down the Republican House advantage from 32 to one. The aftermath of the election was equally unexpected, with four recounts. The statewide races on the ballot were much less dramatic, as Governor Ralph Northam, Lieutenant Governor Justin Fairfax, and Attorney General Mark Herring were elected by comfortable margins.

The 2018 session also saw the election of a new speaker, Colonial Heights Delegate Kirk Cox, who assumed the post following the retirement of longtime House Speaker Bill Howell (R-Stafford). Alongside Speaker Cox, Shenandoah Delegate Todd Gilbert was selected as Majority Leader, and Fairfax County Delegate Timothy Hugo was selected as GOP Caucus Chairman.

While adoption of the state budget is typically the single most important piece of legislation considered by the General Assembly, lawmakers adjourned without passing a 2018-2020 biennium budget. At the heart of the impasse was a disagreement over whether to expand Medicaid under the Affordable Care Act. Governor Northam recalled the legislators into special session in April and, following negotiations, the House and Senate passed a $115 billion, two-year budget with Medicaid expansion. Key to winning enough Republican support for expansion in the House and Senate was the inclusion of work requirements for some Medicaid recipients.

An area of significant focus throughout the session was providing the Washington Metropolitan Area Transit Authority (which operates Metrorail) a significant source of dedicated, predictable revenue—something it has lacked since the subway opened in 1976. The legislature agreed to give Metro $154 million per year (which is Virginia’s share based on the existing cost-sharing formula) in new funding. This additional funding, however, means that less money will be available for other regional transportation projects funded by the Northern Virginia Transportation Authority. Also related to transportation, the General Assembly set the minimum regional gas sales tax floor for Northern Virginia and Hampton Roads at the price of gas as it existed in 2013, which should help capture millions of dollars in tax revenue for transportation projects.

From a land use perspective, the legislature passed several bills significant to the development industry, including: zoning violation penalties (HB 709), the criteria planning staff and Boards of Zoning Appeals are to consider related to zoning modifications/variances for persons with disabilities (HB 796), paying for transportation improvements through subdivision ordinance requirements (SB 129), and the timeframes for approval of site plans and plans of development (SB 993). One bill, HB 640, requires that a locality consider broadband infrastructure as one of the matters a planning commission is to consider when preparing its comprehensive plan. Another, HB 594, expands the current drug blight statute to allow localities to enact ordinances requiring corrective action to deal with criminal blight conditions on properties (e.g., controlled substance use/sale, commercial sex trafficking/prostitution, and repeated acts of discharge of firearms, etc.).

A group of bills was enacted this year related to local zoning control over solar facilities, with the goal of promoting the use of this renewable energy technology. Among the most important is HB 509, which provides that a solar facility shall be deemed substantially in accord with a locality’s comprehensive plan if the facility is: (a) located in a zoning district that allows solar facilities by right; and (b) is designed to serve the electricity or thermal needs of the property where it is located or will be owned or operated by an eligible customer-generator or by an agricultural customer-generator. Another solar bill, HB 508, allows for the installation of roof- or ground-mounted solar facilities on buildings provided they comply with local height, setback, and historic preservation requirements. The bill also says that, unless the locality’s zoning ordinance already regulates these facilities, any existing ground-mounted solar facility is a legal nonconforming use.

The legislature passed HB 1258 dealing with wireless infrastructure, which built upon last year’s “small cell” wireless facilities. The bill says that applications for certain wireless support structures that are: (a) 50 feet or less above ground level; or (b) are co-located on an existing wireless facility structure are to be administratively approved. This effectively means that these facilities are now exempt from a special exception, special use permit, or variance public hearing or legislative discretionary process.

From an environmental perspective, the legislature passed bills dealing with rainwater harvesting (HB 192), groundwater withdrawal permits (HB 211), maintenance inspections for onsite sewage systems (HB 887), and the manner by which commissioners of revenue are to assess wetland areas. Of critical note, HB 494 aims to increase tree cover by affording all Chesapeake Bay watershed localities the authority to expand tree planting and preservation requirements for new development. The General Assembly also adopted sweeping—yet highly controversial—energy utility legislation (SB 966) that affects utility rates, makes it easier to build renewable energy projects, and improves the electric grid.

The General Assembly also passed three bills related to eminent domain. HB1564 modifies how commissioners in condemnation cases are selected and, henceforth, allows parties to an eminent domain case to each nominate at least eight individuals to serve as commissioners, from which the court will select 13 commissioners and two alternates. SB 278 requires that payments to landowners must be made within 30 days of settlement or a final determination of just compensation. SB 809 makes the assessment of “lost profits” and “business profits” uniform, regardless of whether there is a partial or a full take of a property. This change allows business owners in both instances to recover up to three years of lost profits. Walsh Colucci attorney Michael Coughlin provided a summary of these eminent domain changes in June.

Finally, the legislature defeated attempts to repeal, modify, or study the 2016 Proffer Reform bill, which represented the most sweeping change to Virginia’s unique proffer system since it was first created in 1974. Three of these bills, SB 458, SB 957, and SJ 13, were carried over to a special Senate Local Government Committee meeting in April 2018. The meeting offered a chance for the development industry and local government representatives to raise concerns with the bill, and the committee’s chairman and members expressed a strong desire for all stakeholders to attempt to find compromise and consensus leading into the 2019 legislative session. The Senate Local Government Committee also met in July 2018 to review two impact fee bills, SB 944 and SB 208. Both bills were passed by the committee 5-2, and committee members once more underscored the need for stakeholders to find consensus related to the 2016 Proffer Reform bill.

A list of housing, development, transportation, environmental, and economic development bills that were passed by the General Assembly and signed into law by the Governor is attached here. All legislation became effective July 1, 2017, unless otherwise noted. The summaries contained in the list were prepared by the Division of Legislative Services of the General Assembly. The text contained in this report is not the official text of the Code of Virginia (the “Code”). The full text of the Code and the legislation summarized herein is available here.

Source: Public Domain

Although the expansion of Medicaid dominated debates in the General Assembly for the 2018 session, for Northern Virginia the decision to provide dedicated funding to Metro will likely be the most consequential. The General Assembly’s approval of Virginia’s $154 million per year contribution to Metro will lead to less money available for regional transportation projects because that funding came largely from tax revenue previously earmarked for other new transportation projects.

On the positive side, Metro will have more, and predictable, funds available from Virginia, Washington, D.C., and Maryland, which will be devoted mostly to improving maintenance and reliability. Localities and the Northern Virginia Transportation Authority (NVTA), however, will have approximately $125 million less available for capacity-building projects like bus rapid transit and road widening projects. To put this financial impact into perspective, NVTA’s candidate project list for its six-year plan involved 60 projects and almost $2.5 billion in requested funds, with approximately $2.1 billion in funding projected to be available prior to diversion of funds to Metro.

Over six years, with the diversion of funds to Metro, approximately $750 million in funding will not be available to NVTA, and at its meeting on June 14, NVTA approved funding for only $1.285 billion worth of projects over the next six years. This still allows for significant investment in transportation projects in Northern Virginia, but in the near-term, it will lead to less projects moving into the design and construction phase. It is likely that during the 2019 session, Northern Virginia’s delegation to the General Assembly will seek to make additional funds available in order to make up for the loss of regional transportation funds.

Meanwhile, the General Assembly considered and passed with little controversy three bills aimed at improving eminent domain law in Virginia. The most significant of these bills is Senator Chap Petersen’s SB 809 related to lost profits, which can be viewed here. The bill provides equity between business owners affected by total takings and those affected by partial takings by allowing business owners in both instances to recover up to three years of lost profits. A prior version of the lost profits statutes limited recovery to just one year for businesses affected by total takings, whereas those affected by partial takings could recover up to three years.

SB 809 also alters the starting date for the calculation of lost profits so that it will now be the later of the date of the taking or “the date the state agency or its contractor prevents the owner from using the land or any of the owner’s other property rights are taken.” Additionally, the bill clarifies how a business owner intervenes in a case to make a lost-profit claim — by filing a motion and petition to intervene — and provides that the lost-profit claim can be bifurcated from the traditional just-compensation claim related to the real estate interests acquired. SB 809 amends Virginia Code Sections 25.1-100 and 25.1-230.1.

Virginia’s unique commissioner system was modified through HB 1564, available here. Under HB 1564, the parties to an eminent domain case must each nominate at least eight individuals to serve as commissioners, and then the court shall select 13 commissioners and at least two alternates to potentially serve. Commissioners serve as the fact finders in eminent domain cases but, unlike jurors, who are empaneled randomly by the court, commissioners are nominated by the parties.

Finally, Senator Petersen’s SB 278, available here, will require that after eminent domain cases are resolved, payments to landowners be made within 30 days of settlement or a final determination of just compensation, and that the payment can be made directly to the landowner’s attorney.

All three bills will become effective July 1, 2018.

With significant transportation projects underway, like the widening of I-66 outside the Beltway, and many others in the planning stages, these additional protections for business- and landowners will further help ensure that the public benefit of projects does not lead to a handful of landowners being unduly burdened.

If you require any assistance in an eminent domain matter, please do not hesitate to contact Michael J. Coughlin at mcoughlin@thelandlawyers.com or at 703.680.4664.

Source: Urban Engineering

On June 19, 2018, the Fairfax County Board of Supervisors approved a rezoning application by JAG Development Company, LLC, that will pave the way for the construction of 90 multi-family dwelling units in the Fairfax Center Area, adjacent to Fair Oaks Mall. The rezoning action followed an amendment to the Fairfax Center Comprehensive Plan approved in September 2017. Previously, the site had been planned for institutional and office uses. The amendment added a residential option.

The 3.93-acre site located west and south of Legato Road has been used as a church since 1962. The property is bordered by Ragan Oaks Apartment community to the south, the Centerpointe townhome community to the west, and the Centerpointe office buildings to the north. The property is the last non-redeveloped parcel along Legato Road.

JAG plans to develop 90 two-over-two multi-family units arranged around a centrally located open space area. It is anticipated that there will be four Affordable Dwelling Units and seven Workforce Dwelling Units. The approved density is 22.9 dwelling units per acre, which includes bonuses related to ADUs and WDUs.

Being the last non-redeveloped property along Legato Road, this redevelopment will complete the Centerpointe neighborhood which includes a mix of offices, multi-family rental and condominium units, two-over-two units, and traditional townhomes. This new development will complement the surrounding area by remaining consistent with its high-quality aesthetic and urban-style architecture. Approximately 36% of the site will be community open space.

Elizabeth Baker represented JAG on the plan amendment and rezoning action.

Source: Public Domain

On May 15, 2018, the Prince William County Board of County Supervisors approved a zoning text amendment (#DPA2017-00006) affecting land use public hearings. The amendment increases the distance for required adjacent property owner notices from a 200-foot radius to a 500-foot radius. This is applicable to rezonings, special use permits, and public facility determinations.

For rezonings, special use permits or public facility determinations that include a proposal to exceed the maximum height permitted, written notice is required within 1,320 feet in all directions of the subject property.

For more information regarding this zoning text amendment, the Board of County Supervisors brief can be found here.

On June 6, 2018, Walsh, Colucci, Lubeley & Walsh hosted NAIOP Northern Virginia’s Prince William Government Relations Subcommittee meeting featuring a presentation from Rebecca Horner, Prince William County’s Planning Director. Ms. Horner explained that in the upcoming year, the Planning Office seeks to distinguish Prince William County’s regional identity as one separate from the rest of the D.C. metro area. The Planning Office hopes to collaborate with the community, the development industry, and its customers to realize Prince William County’s distinct identity through innovative land use and planning. The Director provided updates on the Planning Office’s current work program including zoning text amendments, updates to the Comprehensive Plan, the status of ongoing Small Area Plans, and how the community can provide input with respect to the Planning Office’s objectives.

Ms. Horner briefly reviewed the zoning text amendments that were priorities for the Commercial Development Committee. Some of these zoning text amendments included reviewing mixed-use provisions, the big-box ordinance (retail uses larger than 80,000 square feet), parking on unimproved surfaces, distribution centers, and signage regulations. The Director also mentioned that an Overcrowding Task Force has been established with the goal of determining whether Prince William County’s current approach, not just enforcement, is adequate in addressing the growing burden of overcrowding in residential dwellings. She mentioned that we can expect to see an update sometime in August.

As part of the Comprehensive Plan update, the Planning Office will eliminate the Economic Development Chapter of the Comprehensive Plan and integrate economic goals and strategies within other chapters. In addition, the County will update the level of service components within the Comprehensive Plan beginning in early 2019 and continuing throughout the year.

Throughout her presentation, Ms. Horner made it clear that achievement of the Planning Office’s goals requires input from County businesses and citizens. If you want more information regarding the NAIOP meeting, please contact our Prince William County office and the land use team will be able to assist.

On June 16 at the Washington Nationals Youth Baseball Academy complex, 24 law firms battled it out for the long sought-after Mushball Classic Trophy.

This all-time fan favorite event supports the Academy’s mission “to use baseball and softball to support the academic success, health, and character development of children growing up in some of D.C.’s most underserved communities.” This year’s tournament raised more than $165,000.

The LandLawyers started with a perfect record in regular season games, defeating Hogan Lovells, Kelley Drye, and Akin Gump in pool play. In the three years the Firm has participated in the tournament, they have gone 9-0 in pool play. Additionally, as a third seed in the playoffs, they defeated the sixth seed, Katten, in the quarterfinals. Then, in the semifinals, they defeated Price Waterhouse Coopers. In the finals, however, the team was thrown for a loop as they faced a team from Zuckerman Spaeder that included about four former college baseball players and most likely two former college softball players. While the LandLawyers put up a tough fight, the team from Zuckerman Spaeder managed to beat them after a long, grueling game. Considering the type of players and talent Zuckerman Spaeder had, it was still a great day for the LandLawyers.

All in all, it was quite an exciting Saturday, with the LandLawyers winning a total of five games in a row, only losing one game to the arguably semi-pro team from Zuckerman Spaeder. Considering almost all the teams were from bigger firms (with larger pools of potential players), the LandLawyers really dominated the field. It was a true team effort, with a blend of veterans and rookies, and rock-solid Coach Mark Goetzman pulling all the right levers and figuring out all the right strategies.

A special thanks to all of the players (Ed Encarnacion, Matt Westover, Antonia Miller & Ben Wengerd, Mark Smith, Mike Coughlin, Dave Bomgardner, Bob Brant, Caroline Herre, Reed Stadler, Jack Goetzman, Mike & Paula Romeo, Bill Fogarty, and Coach Goetzman) who dedicated their Saturday to mushball and for wowing the crowds with their impeccable talent. Even greater thanks to Madison and Avery Smith who demonstrated some never-before-seen talent through their speed. While the LandLawyers conquered most of the field, they more importantly played like a team. Every year, they are showered with compliments from the Youth Academy Staff on how well they play together and the great sportsmanship they always bring to the field.

Shenandoah University has named Shareholder Randy Minchew to its board of trustees. His membership became effective April 19. Shenandoah University President Tracy Fitzsimmons, Ph.D., noted that Randy “has been involved with and supportive of the university for many years, and I look forward to working with [him] as [he shares his] professional expertise and leadership on behalf of the university and our students.” “Randy’s legal and governmental experience [brings a] vitally important viewpoint to the board of trustees, and we look forward to benefiting from [his] contributions,” said John D. Stokely Jr., board chair.

In announcing his appointment, Shenandoah University noted the six years Randy served in the Virginia House of Delegates representing the 10th District. During his tenure, he was an advocate for Shenandoah University to maintain and enhance the Virginia Tuition Assistance Grant and was supportive of the university’s growth in Loudoun County, where the university’s Scholar Plaza-Loudoun site and Inova Loudoun Hospital are located.

For a full listing of Shenandoah University’s board of trustees, visit https://www.su.edu/departments-offices/office-of-the-president/board-of-trustees/

Source: iStock

Developers and builders of common interest communities will want to take note of recent legislative changes to the disclosure requirements for condominium unit owners associations and homeowners associations. On March 2, 2018, Governor Northam approved House Bill 923, which will become effective July 1, 2018. The bill does two things. First, it requires the Common Interest Community Board to make substantial revisions to the notice form that accompanies HOA disclosure packets. Second, it creates a new requirement that a similar form be included with condominium resale certificates. Sellers of HOA lots and condominium units will need to update their HOA disclosure packets and condominium resale certificates to include these new forms, which will be available on the Department of Professional and Occupational Regulation website starting July 1. Failure to do so could provide contract purchasers with a right to terminate their contract up to the date of closing.

The bill amends three statutes. First, it amends Virginia Code § 54.1-2350, which directs the Common Interest Community Board to develop and disseminate the disclosure notice form. Second, it amends Virginia Code § 55-79.97 by adding the disclosure notice to the list of items that must be included in a resale certificate. Third, it makes a clarifying amendment to the language of Virginia Code § 55-509.5, which sets forth the required contents of a homeowners association disclosure packet.

If you have any questions about these new requirements, or if you need legal review of your disclosure packets and resale certificates for compliance with these new requirements, please contact Michael R. Kieffer or Timothy J. Clewell.

Source: Bowman Consulting Group, Ltd.

Addressing regional issues of housing affordability in Loudoun has proven challenging in recent years. On March 6, 2018, the Loudoun County Board of Supervisors took a major step towards diversifying the county’s housing choices by approving a rezoning and special exception to create a vibrant mixed-use, mixed-income community in the Ashburn area.

Known as “Regency At Belmont Chase,” the approval permits construction of 34,000 square feet of commercial uses, 105 active adult age-restricted four-story townhomes, and between 75 and 100 affordable workforce dwelling units (AWDUs) on 26 acres at the intersection of Route 7 and Claiborne Parkway.

Regency At Belmont Chase was proposed by Toll Brothers in conjunction with a Middleburg-based non-profit affordable housing provider, Good Works LP. The project’s new urbanist design offers an urban, pedestrian-friendly, and mixed-use focal point at the intersection of three major roads. Substantial landscaping is proposed throughout the site, while a series of plazas and civic spaces are strategically located at entrances, focal points, and between proposed buildings.

Toll’s 105 active adult townhomes will help address Loudoun’s increasing need for a sustainable supply of long-term age-restricted housing and will feature elevators, rooftop terraces, and universal design elements. The proposed commercial uses will offer additional quality dining and retail experiences similar to those in the highly-successful Belmont Chase shopping center across Claiborne Parkway.

Source: Bowman Consulting Group, Ltd.

Good Works anticipates constructing the AWDUs pursuant to Virginia Housing Development Authority financing programs, and including them in one or two buildings which will be LEED (or equivalent rating system) certified. While the AWDUs units will be reserved for households meeting certain income eligibility requirements, they will be marketed to all age ranges. With approximately 48 percent of the total number of approved units dedicated towards affordable housing, the project represents perhaps the largest single commitment to affordable housing in Loudoun’s history.

Regency at Belmont Chase also provides substantial recreational amenities, tree conservation areas, open space preservation, stormwater management, green infrastructure, and transportation improvements and contributions that will help complete the nearby transportation network. The project will make the county’s housing options more affordable and diverse, as well as encourage compatibility among adjacent uses.

Walsh Colucci shareholder Andrew Painter served as zoning counsel on the case, and worked closely with Packie Crown of Bowman Consulting, Ltd. on the project.