Firm News

Fairfax City Council Approves Northfax West Development

Posted on by Brigitte Flores

On July 14, 2020, the Fairfax City Council unanimously approved a rezoning application submitted by Northfax JV LLC, an affiliate of The Lann Companies, to allow the development of fifty-six (56) townhouses and a 200-unit senior living building.  The plan also includes a future development phase where the uses are not yet determined.  Comprised of approximately 11.46 acres on an assemblage of 17 parcels, the property is located within an area known as Northfax West.  The proposal represents a collaborative effort with the Brown’s Mazda dealership to the south and the City of Fairfax to make significant, coordinated improvements to Northfax West.  Specifically, the approval permits an extension of Farr Avenue that will connect Fairfax Boulevard and Chain Bridge Road to establish an important link of the Northfax street grid.  The proposal is consistent with the “Activity Center” designation of the City’s 2035 Comprehensive Plan, as well as the recently adopted Northfax Small Area Plan.  The approved development plan represents a significant step to advance the City’s vision to make Northfax into a regional mixed-use destination that will strengthen economic vitality, provide diverse residential, commercial, and retail opportunities, and reinforce the City’s regional appeal.

Land Use Attorneys Lynne J. Strobel and Kathryn R. Taylor worked diligently with the development team, City staff, City Planning Commissioners, City Council members, and the community to obtain approval of a Rezoning, Special Use Permit, Special Exception and Certificate of Appropriateness.  The approvals allow a phased development.  The first phase includes the construction of infrastructure, including road and trail improvements. Madison Homes, Inc. will construct 56 garage townhomes as a second phase of development. The townhouse community will include a pocket park, a tot lot, and other residential amenities. Consistent with the recently adopted Northfax Small Area Plan, the development incorporates a linear park to promote connectivity. An eight-foot trail begins on the western property line at the intersection of Perry Street and Howerton Avenue, and extends through the community and the future development parcel to Chain Bridge Road.

Concurrent with the townhouse construction, Brightview Senior Living plans to commence development of the City’s first senior living community. A seven-story building with structured parking will be a residence to seniors, and include assisted living and memory care units. In addition to typical indoor amenities, such as fitness rooms, a hair salon, and a movie theater, the community will include two outdoor courtyards. These landscaped courtyards will be open to the adjacent townhouse community and provide an opportunity for intergenerational engagement. A series of seating areas, a fire pit, gardens, and other features will create a welcoming and useable environment.

Finally, the fourth phase envisions the development of approximately 3.5 acres characterized as a Future Development Parcel. This acreage will be the subject of an application separately evaluated and presented to City Council at a later date. This parcel, with its frontage on Chain Bridge Road, will likely be developed with more intensive uses that may include a hotel, multifamily residential, and retail.

One of the more significant challenges during the rezoning process was community opposition to the removal of existing trees on the property and the placement of a portion of an existing stream in a pipe.  The commitments associated with the development include a thoughtfully balanced series of actions that will mitigate any environmental impacts.  A robust landscape plan, including the removal of invasive species, will enhance the community and ensure a forested condition on a portion of the property.  The implementation of the desired street grid and development consistent with Comprehensive Plan recommendations necessitated a relocation of the stream, which was in poor condition.  The property owner and developers completed a multi-layered process for the stream relocation with the Department of Environmental Quality, FEMA, and the Army Corps of Engineers.  In addition to a required monetary contribution for stream credits, the developer agreed to restore 2,190 linear feet of a publicly accessible stream within Van Dyck Park at no cost to the City.  The stream restoration project was coordinated with the City of Fairfax and will improve the health of Accotink Creek to the benefit of City residents.

Walsh Colucci was pleased to work on such a significant project that allows for development of a regional mixed-use destination that aligns with and advances the goals of the City’s vision in the Northfax Activity Center.

Best Lawyers in America 2020 Recognizes Walsh, Colucci, Lubeley & Walsh

Posted on by The Land Lawyers

Walsh, Colucci, Lubeley & Walsh is proud to announce that 11 of the Firm’s attorneys have been selected by their peers for inclusion in The Best Lawyers in America® 2020. The attorneys who were recognized by Best Lawyers® and their areas of recognition are:

Best Lawyers in America 2020 is based on a peer-review survey in which more than 50,000 leading attorneys provided more than 6.7 million detailed evaluations on the legal abilities of other lawyers in their practice areas. Inclusion in Best Lawyers® is considered a singular honor.

Virginia Supreme Court Affirms Walker Drive Zoning

Posted on by Brigitte Flores

In the Fall of 2015, land use attorney John Foote and land use planner Jessica Pfeiffer commenced work on a project in the Town of Warrenton called Walker Drive. It was a mixed use project for Eastside Investment Group, LLC, Walker Drive Investment Group, LLC, Remland, LLC, and Springfield Real Properties LLC, on approximately 31.9 acres. It was located east of Walker Drive and North of East Lee Street.

The land was already zoned Industrial, but the landowners wanted to pursue a planned development not possible under that classification. While the Town had an Industrial Planned Unit Development District in its Ordinance, and the landowners originally filed a rezoning application to use that District. But as it was written, it would still not accommodate the mix of uses that the landowners contemplated, so it appeared necessary to obtain a text amendment to the I-PUD. This exercise took more than six months to complete, but the Town permitted a rezoning application to proceed at the same time. The proposal involved a mix of industrial, commercial, and mixed use residential uses, in a “land use mix” ratio 45.2%, 33.5%, and 21.3% respectively.

After a series of contentious hearings, including two work sessions with the Town Planning Commission that ultimately recommended against the proposal, the Town Council approved the rezoning on July 17, 2017, two years after its pursuit had begun.

This, however, was only the beginning, for on August 10, 2017, within the thirty day appeal period, a group of seven neighbors brought suit challenging the rezoning on a wide variety of grounds, including claims that the Planning Commission had never made a recommendation as to the final land use mix, that the land use mix deviated from that required by the Ordinance, that the Staff Report to the Council relied on incorrect information, and, most significantly, that proffers must be “in addition” to the requirements of the underlying zoning, and cannot be “in modification of” those requirements.

The principal Defendant, of course, was the Town, but the landowners were permitted to intervene as necessary parties, and John Foote served as their lead counsel and co-authored all of the briefs in the trial court and beyond. Significantly, the trial court also granted an agreed Motion for Oyer, which meant that the entire legislative record made in the case became a part of the Plaintiffs’ Complaint. This has been increasingly frequent in land use cases, and has resulted in fewer and fewer trials since that record has usually proved dispositive.

The Court held hearings on a first demurrer filed by the Town and the landowners, and on November 7, 2017, ruled that the Plaintiffs had failed to allege sufficient claims of “particularized harm different from the public generally” sufficient to establish their standing. It granted leave to replead, and on a second round of demurrers on July 18th ruled that the lead Plaintiff had no standing and dismissed him from the case. It also sustained those second demurrers on all counts, but again gave the Plaintiffs leave to file an amended complaint.

They did so, and a third demurrer hearing was held on the “Twice Amended Complaint. On January 14, 2019, the Court finally dismissed all of the case with prejudice and entered a final order. Though no trial had been held, only hearings on demurrers, it took seven months to resolve the case in the trial court.

Even that was not the end, for the neighbors appealed and the Virginia Supreme Court accepted their appeal. On May 28, 2020, almost five years after the Walker Drive case had commenced, the Court affirmed the trial court’s dismissal of the case. The Court had limited the assignments of error granted essentially to the question whether a local government may accept a conditional proffer from a property owner as part of a rezoning application that alters a minimum mixed-use requirement of a zoning district below that specified in the local zoning ordinance.

In short, it may. The Court said that “the General Assembly intended for local governments to have authority to accept proffers that depart from the requirements of the zoning ordinance for a specific property as part of a conditional rezoning process. Rowland v. Town Council of Warrenton, 842 S.E.2d 398, 405 (Va. 2020).

Because the acceptance of proffers by a locality has the force of law, the acceptance of a proffer which alters the rezoning requirements of a particular property is the functional equivalent of an amendment to the zoning ordinance. This intent by the General Assembly is clearly stated in Code § 15.2-2296 which provides that the proffers “are not generally applicable to land similarly zoned.” Moreover, express language in Code §§ 15.2-2297 and 15.2-2298 makes clear that such proffers are “accepted as part of an amendment to the zoning ordinance” or “as a part of a rezoning or amendment to a zoning map.” Accordingly, we conclude that the General Assembly intended for these statutes to grant localities the authority to permit deviations from the requirements of a zoning ordinance by accepting voluntary proffers as part of a rezoning application.

Reading Code §§ 15.2-2297 and 15.2-2298 in pari materia with Code § 15.2-2296, it becomes clear that the residents’ construction of “in addition to” is far too narrow and constrained. The construction that “in addition to” means that the proffers must not alter the requirements of the particular zone simply does not follow from the clearly stated purpose of proffers for rezoning as set out in Code § 15.2-2296 to “provide a more flexible and adaptable zoning method . . . for the protection of the community.” Rather, we are of opinion that “in addition to” means that the zoning applicant may make, or the locality may suggest, any proffer which can be viewed as beneficial to the community, even if that proffer creates a condition “not generally applicable to land similarly zoned.”

It is axiomatic that merely because an applicant makes a proffer, the locality is not bound to accept it. Rather, it is the function of the zoning authority of the locality to review the application as a whole and determine whether, on balance, any given proffer is reasonable and for the benefit of the community. We have long recognized that because the decision of a zoning authority is legislative in nature, a reviewing court should not be concerned with whether the decision was right or wrong. Board of County Supervisors v. Davis, 200 Va. 316, 322, 106 S.E.2d 152 (1958). Rather, legislative decisions in zoning matters are “presumed valid and will not be altered by a court absent clear proof that the action is unreasonable, arbitrary, [or] bears no reasonable relation to the public health, safety, morals, or general welfare.” EMAC, LLC v. County of Hanover, 291 Va. 13, 21, 781 S.E.2d 181 (2016) (internal quotation marks omitted).

Rowland v. Town Council of Warrenton, 842 S.E.2d 398, 406 (Va. 2020) (emphasis supplied).

The flexibility and utility of conditional zoning has thus been emphatically reinforced by the Supreme Court, which has plainly held that a proffer can modify an underlying zoning ordinance in any manner that a locality finds acceptable, and that can survive the “fairly debatable” test applicable to legislative decision making.

The Walker Drive landowners are now safely zoned, having been unwilling participants in a process that has, at least, produced a decision of significant importance to Virginia rezoning applicants everywhere.

Fairfax County Board of Supervisors Approves Residential Tower at Scotts Run

Posted on by The Land Lawyers

InsideNOVA reported on the recently approved proposal by Cityline Partners LLC to build a residential tower on part of the Scotts Run Station South site in western McLean. Land use attorney and shareholder Lynne Strobel represented the applicant through the approval process.

[EXCERPT]

A single residential tower, instead of the previously planned two, will be built on a section of the Scotts Run Station South redevelopment project in western McLean, following the Board of Supervisors’ unanimous approval July 28. Read more

Loudoun Approves New Retail and Restaurant Development at Pleasant Valley Road and Route 50

Posted on by Brigitte Flores

The recently approved MC Dean special exception application will enable the development of retail and restaurant establishments in an area of Loudoun County that currently lacks these amenities. Located at the intersection of Route 50 and Pleasant Valley Road, the MC Dean property has long served as a gateway to Loudoun County. For decades, the MC Dean property has served as a light-industrial employment use. The area around the MC Dean property has developed over the years with predominantly residential uses. Through the development of these residential uses, the demand has grown for more convenient, walkable, restaurant and retail services.

The MC Dean application included the approval of four special exception uses: restaurant, restaurant with drive-through, retail sales establishment, and automobile service station. As the rezoning process progressed, the project evolved from an auto-centric layout into a pedestrian-friendly design that encourages pedestrian access from the nearby residences. The layout of the project accommodates well-designed transitions to the residential neighborhood to the south as well as Route 50 to the north. A meandering sidewalk and ample landscaping connects the property to the residential neighborhood and a 100-foot wide Gateway Buffer with significant landscaping and design features separates the property from Route 50.

With buildings fronting on an internal east-west corridor, the internal layout fosters a Main Street feel. This layout integrates all six of the project’s land bays into one cohesive design. Outdoor seating from the restaurants fronts on a 5,000 square foot public plaza at the center of the property. A promenade leads pedestrians and vehicles from East Gate View Drive into the public plaza at the heart of the project. The intersection of these features around the public plaza has the potential to create a true sense of place.

Walsh Colucci worked collaboratively with the applicant, its consultant team, and the Board of Supervisors on the design of the property as well as the navigation of policy challenges to gain approval of the project. The residents of this area will now greatly benefit from retail and restaurant amenities within walking distance of their homes.

 

Image Source: URBAN, LTD.

Loudoun County Board of Supervisors Approves ​Twin Creeks Rezoning

Posted on by Brigitte Flores

A balance of environmental preservation and development potential are elevated to a new level with the recently approved Twin Creeks application. Fronting on over 2,200 feet of undisturbed Goose Creek frontage at the confluence of Sycolin Creek in Loudoun County, the 60-acre Twin Creeks rezoning, special exception, and zoning modification application exemplifies best practices for the accommodation of development while preserving significant environmental features for future public use.

The Twin Creeks approval permits over 1.5 million square feet of industrial development, which is ideally suited for data center development, under the Planned Development – General Industry zoning district. This approval includes the increase of FAR from .40 to .60 as well as the reduction of setbacks along the possible future extension of Gloucester Parkway through the property. Through the rezoning process, the Countywide Transportation Plan (“CTP”) alignment of Gloucester Parkway was shifted to accommodate site constraints. An option to develop the property without Gloucester Parkway, if it’s removed from the CTP, will enable additional development flexibility and the preservation of more environmentally sensitive features.

Over 13 acres of open space and passive park land will be preserved along Goose Creek and Sycolin Creek, which includes some of the widest open space preservation buffers along Goose Creek in Loudoun County. This open space will accommodate future trail access and serve to preserve steep slopes, forest stands, and floodplain areas for future public use. This open space was preserved in consultation with the Emerald Ribbons Committee and the Goose Creek Scenic River Advisory Committee.

The approval of the Twin Creeks application represents an ideal model for the preservation of open space and public usage of natural areas while accommodating the needs of development. Twin Creeks is currently available for sale. Any interested parties should contact John Ryan at CBRE.

 

Image Source: Greenway Engineering

Virginia Issues Mandatory COVID-19 Workplace Related Requirements for Employers

Posted on by Brigitte Flores

The Virginia Safety and Health Codes Board recently adopted §16VAC25-220 Emergency Temporary Standard (ETS), Infectious Disease Prevention for SARS-CoV-2 Virus That Causes COVID-19. The standard requires employers to implement safeguards in the workplace and became effective on July 27, 2020.

The standard requires all employers to implement many workplace controls to protect employees from workplace exposure, such as wearing face coverings,  social distancing, hand hygiene procedures, frequent cleaning of high contact surfaces,  and provides for even more in-depth requirements when there are higher levels of exposure risk to the employees, classified as “very high”, “high”, “medium” or “lower” by the standard.

The Virginia Occupational Safety and Health’s Cooperative Programs Division has developed several training and outreach materials for the public. These materials include:

  • COVID‐19 Training PowerPoint for Employers and Employees with an included training certification form
  • ETS Training PowerPoint that explains the elements of the standard with an included training certification form (including different versions for different industries)
  • FAQs about the standard
  • Infectious Disease Preparedness and Response Plan Template (including different versions for different industries)
  • Training PowerPoint on how to develop an Infectious Disease Preparedness and Response Plan Template with an included training certification form
  • Flowchart for determining how to classify job tasks by hazards employees are potentially exposed to for “very high”, “high”, “medium”, and “lower” exposure risk levels

Employers will have approximately 60 days to develop and train employees on any 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 be given 30 days to train employees on the standard itself under §16 VAC 25‐220‐80.A. (for all employees if there is anyone at the place of employment classified as “very high”, “high”, or “medium” exposure risk)

Penalties for failure to comply will be civil fines ranging from $13,494 to $134,937.

Any employer wanting assistance with reviewing the new Emergency Temporary Standard and/or drafting their Infectious Disease Preparedness and Response Plan should contact Wendy Alexander at 703-680-4664 for assistance.

Reston Comprehensive Plan Study Update

Posted on by Brigitte Flores

On January 14, 2020, the Fairfax County Board of Supervisors authorized a new study of the Reston Comprehensive Plan. Since the Board’s adoption of the Reston Transit Station Areas (“TSA”) amendment in 2014, and the subsequent adoption of the Reston Village Centers & Residential Areas amendment in 2015, there have been approximately 30 rezonings for new developments approved in the Reston TSAs. A task force was assembled in order to alleviate some concern that resonated in the surrounding community regarding the direction of Reston’s future development. The task force, made up of Reston area residents and business members, meets every two weeks to discuss nine areas of focus. These topics are:

  • Projected population thresholds for Reston, and how to ensure that population, infrastructure and the environment are all in balance
  • Land use in the Hunters Woods, South Lakes, and North Point Village Centers – including clarification of what type of future redevelopment proposals might require an amendment to the Comprehensive Plan
  • The adequacy of existing plan language to generate additional affordable housing, and improvements to plan language to encourage preservation and enhancement of existing communities that now provide affordable housing
  • The adequacy of existing and planned pedestrian and bicycle infrastructure for accessing Silver Line stations
  • The adequacy of existing Comprehensive Plan guidance to facilitate urban-scale mobility and development design in the TSAs while protecting the stability of nearby neighborhoods
  • Existing Comprehensive Plan transportation improvements to ensure that they are aligned with planned development
  • How the Comprehensive Plan could better facilitate enhancement of Reston’s natural environment, encourage energy efficiency, and support sustainable green neighborhoods
  • How the Comprehensive Plan could address concerns about monopolization of ownership in Reston, and ways to encourage diverse ownership and/or management over the long term
  • Whether the historic practice of promoting privately owned and managed open space sufficiently addresses public needs during the next 50 years of Reston.

The task force is set to meet over the course of the next 12 to 18 months to conduct a plan review as well as engage with the community on these wide-ranging topics. They will produce a report of their recommendations to be provided to the Planning Commission and the Board of Supervisors by the end of 2021. Bernard Suchicital, a land use planner with the firm, will continue to monitor the task force proceedings and analyze their potential impacts to the development potential of the involved properties in the subject area.

Virginia Businesses May Soon Be Required to Implement Workplace Safety Mandates

Posted on by Brigitte Flores

The Virginia Department of Labor and Industry has proposed Emergency Temporary Regulations that are still in the process of being finalized, which will be required in the upcoming weeks for the protection of workers employed by Virginia businesses. On June 24, 2020, the Virginia Department of Labor and Industry presented the proposed regulations to the state’s Safety and Health Code’s Board which voted 9-3 to create workplace safety rules that they will continue to work on and be finalizing in the coming days. The Temporary standards can be found here with changes updated through June 23, 2020.

The rules will be requiring all employers to develop policies for social distancing, disinfection, sanitation, and will require that employees be given notice of positive cases in the workplace. Any employer who has already developed a policy for reopening their business should revisit their policies once the rules are finalized or risk fines or closure in the case of severe noncompliance.

Any employer wanting assistance with reviewing and/or drafting their policies once the specific standards are implemented should contact Wendy Alexander at 703-680-4664 for assistance.