Firm News

Virginia Adopts Permanent Standard in Response to COVID-19

Posted on by Brigitte Flores

The Virginia Safety and Health Codes Board recently voted to approve a permanent safety and health standard (“Permanent Standard”) requiring employers to take steps to prevent workers from contracting the Coronavirus (COVID-19).  The Permanent Standard provides updates to the Temporary Emergency Standards that were adopted on July 15, 2020. The Permanent Standard became effective on January 27, 2021 and will remain in place at least until any state of emergency related to COVID-19 is lifted.

The Permanent Standard maintains many controls put in place to protect employees from workplace exposure, such as wearing face coverings, social distancing, hand hygiene procedures, frequent cleaning of high contact surfaces. The Permanent Standard also also maintains the various classifications of job related exposure risks: “very high”, “high”, “medium” or “lower”.  However, some revisions have gone into the various definitions within the standards, and the requirements of the controls.  For example, the Permanent Standard now requires employers with hazards or job-task risks classified as “very high,” “high,” or “medium” to implement certain ventilation controls to air-handling systems under the employer’s control. The requirements include increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters, and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

The Permanent Standard contains several significant changes of which all employers should be aware including, among other things:

  • While “exposure” is still not a strictly defined term- the Permanent Standard makes it clear that “duration and frequency of exposure” considers how long and how often an employee is potentially exposed to COVID-19 disease under both acute and chronic situations.
  • Explaining face shields are not considered a face covering and can be worn only if a face covering cannot be worn due to a medical condition.
  • Scaling back the requirement to report all positive COVID-19 cases to the Virginia Department of Health. Instead, employers will be required only to report to the Virginia Department of Health “outbreaks” of two or more cases of their own employees at the workplace within a 14-day period.
  • Eliminating the test-based return-to-work requirement and changing the time-based return-to-work requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day (consistent with CDC guidance).
  • Eliminating the requirement for employers to comply with respiratory standards when employees travel together in work vehicles due to shortages of N-95 and other respirators.

The Permanent Standard does not address COVID-19 vaccines, or whether employers can require their employees receive a COVID-19 vaccine.

Although the Permanent Standard is similar to the Temporary Standard, employers in Virginia should take the opportunity to review and revise their existing policies and procedures as necessary regarding COVID-19 to ensure compliance with the Permanent Standard.

Virginia employers that fail to comply with the Permanent Standard are subject to fines up to $12,726 for serious violations and $127,254 for willful violations.

Covered employers  have until March 26, 2021 to re-train employees on the Infectious Disease Preparedness and Response Plan required under §16 VAC 25‐220‐70 (for “very high”, “high” and “medium” exposure risk level employees). Covered employers will  still need to train employees on the standard itself under §16 VAC 25‐220‐80.E.

Any employer wanting assistance with reviewing the Permanent Standard and/or revising their Office Policies/Protocols and/or Infectious Disease Preparedness and Response Plans should contact shareholder Wendy Alexander at 703-680-4664 for assistance.

Senator Jeremy McPike Celebrates the Life of Peter Michael Dolan, Jr.

Posted on by Brigitte Flores

On February 11, 2021, the Virginia State Senate, at the behest of Sen. Jeremy McPike (Senate District 29), passed the following Resolution honoring our departed friend and brother, Peter M. Dolan. The Walsh Colucci family is grateful to the Senator, and indeed the entire Senate.

WHEREAS, Peter Michael Dolan, Jr., an accomplished attorney and beloved member of the Prince William County community, died on January 5, 2021; and

WHEREAS, Peter “Pete” Dolan graduated from Williston Northampton School in 1986 and Hamilton College in 1990 and worked briefly as a zoning administrator and land use planner early in his career; and

WHEREAS, Pete Dolan later earned his Juris Doctor degree from the University of Illinois at Chicago John Marshall Law School in 1996, serving as lead articles editor for the school’s law review and graduating cum laude; and

WHEREAS, Pete Dolan began his distinguished law career in Colorado and for the last 19 years had worked with Walsh, Colucci, Lubeley and Walsh, P.C., in Prince William County, where he was most recently a managing shareholder and leader of his firm’s land use and zoning practice group; Pete Dolan contributed greatly to the growth and development of Prince William County in recent years; and

WHEREAS, Pete Dolan’s extensive service in the community included roles as chairman of the Board of Directors for the Prince William County Chamber of Commerce and as member of the Board of Directors for the Sentara Northern Virginia Medical Center, the Board of Directors of the Boys& Girls Club Prince William County, and the Prince William Design and Construction Standards Manual (DCSM)/Zoning Ordinance Advisory Committee; and

WHEREAS, Pete Dolan also gave generously of his time and talents as a guest lecturer at George Mason University, as a moderator at several industry events, and as a volunteer with myriad service and charitable organizations; and

WHEREAS, Pete Dolan will be fondly remembered and dearly missed by his loving wife of 26 years, Karen; his children, Katherine and Erin; his parents, Peter, Sr., and Carole; and numerous other family members and friends; now, therefore, be it

RESOLVED, That the Senate of Virginia hereby note with great sadness the loss of Peter Michael Dolan, Jr., an esteemed attorney from Manassas whose unwavering loyalty, integrity, and compassion for others was an inspiration to all who knew him; and, be it

RESOLVED FURTHER, That the Clerk of the Senate prepare a copy of this resolution for presentation to the family of Peter Michael Dolan, Jr., as an expression of the Senate of Virginia’s respect for his memory.

Stonebrook Rezoning Approved in Westfields

Posted on by Brigitte Flores

Image Source: Stanly Martin Companies

 

Originally set amidst a stream-laden landscape of rolling fields, and woodlands, creating an idyllic suburban environment, the 1,100-acre Westfields office park has largely built out in accordance with its original vision. Today, the heavily-landscaped corporate center is a job hub and a major economic driver for Fairfax County. Recent years, however, have witnessed the emergence of several challenges, including newer mixed-use office locations, and a lack of mix of uses, pedestrian connections, and community identity.

Sensing the need to diversify Westfields’ land uses and attract new investment to western Fairfax County, the Board of Supervisors in May 2019 adopted amendments to the comprehensive plan policies for Land Unit J of the Dulles Suburban Center. The amendments, which built upon an earlier 2016 Urban Land Institute study, permit retail and residential uses within Westfields to help keep it competitive as a jobs center relative to newer mixed-use centers and submarkets.

A major step in the furtherance of the new Land Unit J policies came on November 17, 2020, when the Fairfax County Board of Supervisors approved Stanley Martin Companies’ Stonebrook residential rezoning. The 12-acre Stonebrook site, located at the intersection of Westfields Boulevard and Newbrook Drive, is adjacent to the recently-completed retail offerings at Commonwealth Centre.

The rezoning approved 134 residential units, including 14 townhomes and 120 two-over-two (stacked townhomes). Though largely surrounded by single-use conventional suburban office and industrial buildings, Stonebrook will introduce an urban, pedestrian-friendly, walkability framework in proximity to retail and employment uses.

Housing affordability figured prominently into Stanley Martin’s overall approach. The project’s introduction of stacked townhomes to Westfields will provide a critical “missing middle” unit type that provides entry level homeownership choices. Stonebrook will also feature five affordable dwelling units and 11 workforce dwelling units (“WDUs”) that will be dispersed throughout the neighborhood and will be for-sale units—something Fairfax County has rarely seen since the 2007 inception of the WDU policy. Stanley Martin also agreed to lower its WDU income tiers, such that half of the WDUs will be provided at the 70 percent AMI tier, and half at the 80 percent AMI tier.

Given the site’s highly-visible and prominent location, Stanley Martin placed great emphasis on the project’s overall design. In an attempt to ensure greater opportunities for visual connections to open space, for example, the layout seeks to celebrate the site’s natural and visual elements by enhancing the RPA, preserving mature canopy trees, and preserving bottomland forest species.

To foster a pedestrian-friendly environment, the project will feature new urbanist-inspired high-quality urban architecture with the rear-loaded garages that will not be visible from public streets. A series of sidewalks will be constructed to connect residents and visitors across the site and to all open space areas. Given Westfield’s historic emphasis on parks and open spaces, the new community will feature a series of multiuse amenities and open spaces for both residents and visitors. This includes a publicly-accessible terraced park adjacent to Westfields Boulevard, pocket parks, interior courtyards, a bicycle service station, a watering station for pedestrians and pets, upgrades to existing trails, and more.

Substantial vegetation and landscaping will be provided along the adjacent pond, and a series of landscaped visual corridors will be created to draw residents and visitors into the site. As a result, Stonebrook will provide more than double the amount of required urban recreational space, nearly double the amount of required open space, 48 percent more tree cover, and will exceed the County’s tree canopy and tree preservation requirements. The project will include more than 75,000 square feet of new plantings, including 50,000 square feet of RPA reforestation.

A key concern with the application was how Stanley Martin would address issues of noise associated with aircraft overflights approaching Dulles International Airport. The property is located within the Board-adopted mapped DNL 60 to 65 dBA noise contours, and Stanley Martin proffered several enforceable noise mitigation and construction commitments that exceed building code requirements, zoning regulations, and similar obligations made in other Westfields applications. This includes designing homes to address peak episodic noise associated with aircraft overflights, post-development interior noise testing, disclosure requirements to initial and subsequent purchasers, marketing materials depicting the noise contour lines, and avigation easements for all homes.

The result of these efforts is a unique project and layout that fulfills the established comprehensive plan vision for Westfields in terms of land use and density, economic development, and hosing attainability. Stonebrook will respond to the increased need for for-sale, urban style housing in the Westfields area and complement the ongoing retail and residential uses at Commonwealth Centre. It will also respond to the increasing preference for residential opportunities in the vicinity of nearby employment uses, and contribute to Westfields’ overall economic vitality.

Image Source: Land Design Consultants

Image Source: Land Design Consultants

 

Image Source: Stanly Martin Companies

Image Source: Stanly Martin Companies

Stafford County Board of Supervisors Approves Burns Corner

Posted on by Brigitte Flores

On December 15, 2020, the Stafford County Board of Supervisors unanimously approved a commercial development known as Burns Corner which is located on the east side of the new Courthouse Road interchange at the I-95 Exit 140. The approval included a rezoning to B-2, Urban Commercial to permit approximately 780,600 square feet of commercial uses which permits general retail, grocery store, medical office, a pharmacy, and a hotel. In addition, the Board approved two conditional use permits. The first conditional use permit allows for 5 drive-through restaurants and the second conditional use permit allows for the construction of a Sheetz with a drive-through. The land use team included Jonelle Cameron with Bryan Guidash assisting with deed approval associated with site plan approvals.

Image Source: The Engineering Groupe, Inc.

Image Source: SKA Studio

Image Source: SKA Studio

In Memoriam: Pete Dolan

Posted on by The Land Lawyers

On January 5, Walsh, Colucci, Lubeley & Walsh, P.C. lost a beloved member of its family, Peter M. Dolan, managing shareholder of the Prince William office, and leader of the Prince William Land Use & Zoning practice group.

Pete was first and foremost a loving husband to his wife Karen and a loving father to his two daughters Katherine and Erin. He was a kind, upbeat, and tremendously giving person who cared for his colleagues, many of whom are proud to call him a mentor.

Pete’s contributions to the firm since joining on December 31, 2001, and his contributions to the Prince William community, are immeasurable. Pete formerly served as a member of the Board of Directors for the Sentara Northern Virginia Medical Center, as Chairman of the Board of Directors for the Prince William Chamber of Commerce, as a member of the Board of Directors for the Prince William County Boys & Girls Club, and as a member of the Prince William DCSM/Zoning Ordinance Advisory Committee. Pete also dedicated his time to various charitable and religious organizations and as a guest lecturer for George Mason University graduate programs and a moderator for commercial real estate industry events led by NAIOP Northern Virginia and Bisnow.

Pete was formerly a land use planner, zoning administrator and municipal attorney before he called Prince William County his home. As a brilliant land use attorney with the firm, he led the entitlement effort for some of the most significant developments in Prince William County, including Virginia Gateway, Shops at Stonewall, and Potomac Shores, literally leaving his mark on the landscape of his community.

Pete leaves behind a legacy as a trusted colleague, a genuine leader, a loyal friend, and an example of unyielding integrity.

Pete will be deeply missed as both a colleague and a friend, and his passing is an immense loss to all who knew him. Our thoughts and prayers extend especially to Pete’s family during this difficult time.

The family welcomes all to a memorial celebration of Pete’s life which will be scheduled at a later date. In lieu of flowers, the family suggests memorial contributions to the LUNGevity Foundation and the Crohn’s & Colitis Foundation.

 

To read the obituary please visit the Mountcastle Turch Funeral Home website here.

 

Herndon Town Council Approves Quadrangle’s Four-Building Mixed-Use Project

Posted on by Brigitte Flores

Image Source: LandDesign

On November 17, 2020, the Quadrangle Development Corporation, with the expert assistance from Senior Land Use Planner Elizabeth Baker and Land Use Planer Bernard Suchicital, received unanimous approval from the Herndon Town Council to build a mixed-use development of up to 1.5 million square feet (1.25 FAR) at Fairbrook Park in the southeast part of the Town.

The developer acquired the 28-acre site at the intersection of Herndon Parkway and Fairbrook Drive in 1984. It built one office building on the site, a two-story structure totaling 80K SF. The site has long been approved for three additional office buildings and a hotel, but the developer sought to change the plans to increase the gross floor area and add residential and retail to the mix. Given its size, and its location adjacent to the Dulles Toll Road and within a half-mile walk from the future Herndon Metro Station, the site is well suited to creating a mixed-use community. The introduction of residential and retail uses are viewed as important elements that will enhance the opportunities for office development. The Herndon Town Council approved the new plans under the Landmark Business Alternate Overlay regulations. The Council approved four buildings with a land use mix of 60% residential/daycare/retail, and 40% office:

  • 19-story office building totaling 360,000 square feet
  • 10-story office building totaling 240,000 square feet
  • Eight-story residential building totaling 410,000 square feet
  • Eight-story residential building totaling 470,000 square feet, and up to 10,000 square feet of ground floor retail use and 10,000 square feet of daycare use

The office buildings were approved with a height of up to 275 feet, creating a prominent architectural feature along the Toll Road. Residential buildings can range in height from 65 to 105 feet, and feature large exterior courtyards to complement the interior residential amenity areas.

This application allows for the future extension of Fairbrook Drive, connecting it from Herndon Parkway to Spring Street at the Fairfax County Parkway ramp intersection. Quadrangle will be dedicating the land and constructing Fairbrook Drive across its property and making a monetary contribution to the Town for the off-site extension of the road. The staff report noted that while the Fairbrook Drive extension is necessary to mitigate the increased traffic from this development at full build-out, only approximately 37% of peak hour traffic on the extension would be associated with the Fairbrook development The remaining traffic is generated from sources elsewhere in Town and nearby expected growth.

Elizabeth worked closely with the Quadrangle development team and Town staff to gain approval of two additional concurrent applications for the site. The first request allows for an encroachment into the Resource Protection Area, and the other allows for development in the floodplain.

Quadrangle’s development team included DCS Design architects, VIKA civil engineers, LandDesign landscape architects, Wells + Associates transportation consultants, and Wetland Studies and Solutions, Inc. environmental specialists.

 

Image Source: LandDesign

Image Source: DCS Design

Arlington County Approves Update to Green Building Incentive Policy

Posted on by Brigitte Flores

At its December 12, 2020 hearing, the Arlington County Board approved a substantial update to its Green Building Incentive Policy, a voluntary program that developers may participate in to earn bonus density to support development projects subject to Administrative Regulation 4.1 Special Exception Site Plan approval. The incentive policy was first adopted by Arlington County in 1999 with the goal of incentivizing sustainable buildings and reducing the environmental impacts of buildings. Since then, the incentive policy has been widely used by developers across Arlington County.

With this latest update, the County took its most aggressive approach to date in furthering its sustainability goals. Last year, the County Board adopted a “Community Energy Plan” with the goal of becoming Carbon Neutral by 2050. Whereas the previous version of the incentive policy allowed developers to earn bonus density for LEED Silver certified construction, the update eliminates any bonus density for LEED Silver and makes LEED Gold a minimum standard for participating in the program. The revised incentive structure introduces new tiers where developers can earn increasing levels of bonus density for LEED Gold (the new minimum requirement), energy efficiency optimization, Energy Star certification, on-site energy generation or off-site renewable energy purchase contracts, electric vehicle charging stations, and more. The updated incentive policy also forgoes the Arlington Priority Credit system in lieu of a menu of items on the “Extra List” that developers may choose from and implement.

Throughout the community engagement process, County staff received feedback from several stakeholder groups, including NAIOP, who expressed their concern that the new incentive policy will make it more difficult for developers to do business in Arlington County. Particularly, the new Energy Star certification levels will be costly and add to the general difficulty of securing financing for projects with the new requirements.

Ultimately, the revised incentive policy will substantially increase developers’ costs in constructing Administrative Regulation 4.1 Special Exception Site Plan projects with bonus density through the green building incentive program. Administrative Regulation 4.1 Special Exception Site Plan projects formally accepted before March 12th will be grandfathered under the previous incentive policy. The County Board was clear during its deliberations, however, that applications accepted between now and March 12th will be encouraged to participate in the new incentive policy.

New COVID-19 Restrictions in Virginia

Posted on by Brigitte Flores

As most Virginians are aware, Governor Northam announced additional COVID-19 related restrictions statewide that went into effect at 12:01 a.m. on Monday, December 14. The restrictions include a modified stay at home order and a limit of 10 individuals for social gatherings. This mandate will be in effect through January 31, 2021 unless rescinded or amended.

Following are some of the new measures that took effect at 12:01 a.m. on Monday, December 14:

Universal mask requirements: All Virginians aged five and over are required to wear face coverings in indoor settings shared with others and when outdoors within six feet of another person. This order expanded the previous statewide mask mandate.

Reduction of social gathering limit to 10 people: All public and private in-person gatherings must now be limited to 10 individuals, down from the previous cap of 25 people. This includes outdoor and indoor settings. Social gatherings include, but are not limited to, parties, celebrations, or other social events, regardless of whether they occur indoors or outdoors. This does not apply to religious services, employment settings, or educational settings.

Modified stay-at-home order with curfew between 12:00-5:00 a.m.: All individuals in Virginia must remain at their place of residence between the hours of 12:00 a.m. and 5:00 a.m. Exceptions include obtaining food and goods, traveling to and from work, and seeking medical attention.

Continued limits on dining, retail, recreational establishments: Virginia businesses, including but not limited to, restaurants, retail, and gyms are currently governed by strict social distancing and sanitization requirements. For the latest requirements included in the Governor’s newest Executive Order Seventy-Two, click here.

Virginia’s Emergency Temporary Standards continue to apply to all businesses, even those that may not be specifically listed in the Executive Orders’ workplace requirements.

Our Covid-19 Response Team continues to be available to any individual or business that needs help interpreting the requirements of the Executive Orders or the Emergency Temporary Standards.

Team Spotlight: Prince William Litigation Team

Posted on by The Land Lawyers

In this month’s Employee Spotlight we would like to highlight and congratulate the Prince William Litigation Team.

Congratulations to Garth Wainman and Matt Westover on their recent win in the Virginia Supreme Court and many thanks to John Foote for his guidance on this matter.

Last month Matt and Garth argued a case in the Virginia Supreme Court for Dumfries Triangle Volunteer Rescue Squad (DTRS), a volunteer EMS agency in Prince William County. When the Prince William County Board of Supervisors decided to terminate its contract with DTRS, the Board also attempted to dissolve their corporate status and directed DTRS to give its property, including real estate the Board valued at more than $1.6 million, to the County for free. When the Prince William Circuit Court concluded that the Board had the power to do so, Garth and Matt appealed the circuit court’s decision and the Virginia Supreme Court reversed and entered a final order in favor of DTRS.

Congratulations Garth, Matt, and John!

Garth M. Wainman

Garth represents local and regional businesses and focuses on a wide range of commercial transactions and litigation with an emphasis on guiding developers and contractors through complex real estate and financial matters as well as managing construction law contracts and business tort litigation in Virginia state and federal courts. Other areas of expertise include structuring mergers and acquisitions, commercial lease drafting and negotiations, and counseling business clients through employment, corporate, and partnership disputes. Garth has served as lead counsel in several complex construction and commercial cases throughout the region.

Matthew A. Westover

A native of Northern Virginia, Matt assists property owners and developers in zoning, subdivision, eminent domain, and other land use disputes in state and federal courts in Virginia, as well as domestic arbitrations. He also represents lenders, developers, and property owners in real property disputes involving title issues, easement and alley questions, condominium and property owners’ associations, landlord/tenant matters, and issues involving complex real estate transactions. In addition, Matt assists clients in obtaining administrative approvals such as Alcoholic Beverage Control permits, appealing administrative decisions, trusts and estates litigation, and drafting documents for the acquisition, finance, and sale of real property.

John H. Foote

John’s practice focuses on obtaining land use approvals and governmental permits through legislative, administrative, and judicial processes. He is experienced in all relevant areas affecting land including federal regulations of wetlands and waters of the United States, the state regulation of Chesapeake Bay Preservation areas and storm-water management, and historic preservation. John has also represented property owners in boundary adjustments and other municipal matters, and has extensive background in local and state government administration. As an experienced litigator in both state and federal courts, John has appeared as counsel of record in a broad range of complex matters, and has argued numerous appeals to the Virginia Supreme Court and the U.S. Court of Appeals, Fourth Circuit. John served as Deputy County Attorney for Prince William County, Virginia, from 1977 until 1982 when he became the County Attorney. In both positions, he advised the Board of County Supervisors with respect to all matters, including land use, and was its chief litigator. Since 1989, he has represented many clients in land use matters before the governing bodies and subsidiary boards of more than two dozen Virginia jurisdictions and numerous state agencies. John has written extensively in the area of land use and local government and is the author of the principal Virginia text on Planning and Zoning in the Commonwealth.