Chambers USA is an annual publication that ranks the leading law firms and lawyers in the United States based on extensive research and feedback from clients and peers within the legal industry. The Chambers USA Real Estate: Zoning/Land Use list specifically recognizes the top law firms and lawyers in the area of zoning and land use law.

The recognition in Virginia indicates that the law firm or lawyer has demonstrated exceptional skill and expertise in advising clients on a wide range of zoning and land use matters in the state of Virginia. The recognition is based on factors such as the quality of the advice given, the depth of the team, the level of client service provided, and the firm’s overall reputation in the legal industry. Receiving recognition in the Chambers USA Real Estate: Zoning/Land Use guide is considered a significant achievement for law firms and lawyers in this practice area.

Congratulations to shareholders John Foote, Lynne Strobel, and Andrew Painter for their well-deserved recognition in the Chambers USA Real Estate: Zoning/Land Use list for their exceptional work in the region. In addition, Walsh, Colucci, Lubeley & Walsh was ranked Band 1 for Real Estate: Zoning/Land Use. This recognition is a testament to the firm’s outstanding legal expertise, dedication, and client service in the practice of zoning and land use law. We are proud to have such skilled and experienced lawyers on our team, and we congratulate them on this impressive achievement!

Cala Coffman joins the firm as a summer associate for the Prince William office. Prior to joining the firm, she was a legal intern for The Ciric Firm and The Holocaust Art Restitution Project in New York. She also worked as a research assistant for The Center for Intellectual Property and Innovation Policy. Cala also speaks French. She used her French skills to translate legal documents when she volunteered at the National Immigrant Women’s Project.

Cala is a rising third year law student at George Mason University Antonin Scalia Law School where she is a full academic scholarship recipient. She is a member of the Student Bar Association, American Constitution Society, Moot Court Board, and The Journal of Law, Economics, and Policy. She earned her Bachelor’s degree in Anthropology from American University where she was a Fulbright Summer Scholar and a Hymen Goldman Merit Scholar. Outside of school and work, she enjoys sailing, running, knitting, Dungeons and Dragons, and painting. Welcome, Cala!

Edward “Ned” Laporte Wilkinson joins the firm as a summer associate for the Arlington office. Prior to joining the firm, he worked as a law honors clerk for the Litigation and Information Law Department at the Federal Aviation Administration. Prior to law school, Ned served in the U.S. Army as a Lieutenant-Captain in Military Intelligence. He was stationed in Fort Bliss, Texas and prior to that in Camp Humphreys, Korea. While in Texas, he also worked as an Operations Manager for Amazon where he coached, managed, and developed a team of over 150 associates.

Ned is a rising third year law student at The Catholic University of America, Columbus School of Law where he is a full academic scholarship recipient. He participates in the Catholic University Law Review and the Moot Court. He earned his Bachelor of Arts in History from Virginia Military Institute where he was a member of the French Honor Society, Legal Honor Society, and Leadership Honor Society. Outside of work and school, he enjoys exploring new cities and unique restaurants, following Dallas Mavericks basketball, and traveling internationally. Welcome, Ned!

On Thursday, March 23^rd, the Virginia Supreme Court decided Berry v. Fairfax County Board of Supervisors, which struck down the amended Fairfax Zoning Ordinance that had been in effect since March 23, 2021, known as “zMOD,” in large part because it was adopted during a virtual meeting in violation of the Virginia Freedom of Information Act (“FOIA”). A summary of this case and its potential implications was included in the firm’s March update, found here.

On May 9, 2023, the Fairfax County Board of Supervisors readopted zMOD following a duly-advertised public hearing. zMOD is now the applicable zoning ordinance for Fairfax County.

Additionally, on April 19, 2023, Fairfax County filed a Petition for Rehearing in the Berry case, which may be found here.

Walsh Colucci lawyers have been active in supporting Fairfax County’s Petition. The firm was retained to draft two amicus briefs: one on behalf of the Home Builders of Virginia (HBAV) and the Virginia Association for Commercial Real Estate (VACRE), found here; and one on behalf of the Virginia Land Title Association (VTLA), found here.

The Court has received our amicus filings, as well as an amicus brief from the Virginia Association of Counties, the Virginia Municipal League, the Local Government Attorneys of Virginia, and the International Municipal Lawyers Association.

Pursuant to Va. Code § 8.01-675.2 and Rule 5:37 of the Rules of the Supreme Court, the Court will rehear and review the case if one of the justices who decided the case against the petitioner (in this case, any of them since the decision was unanimous) certifies that there is good cause for such rehearing.

We will advise our clients once more is known. In the interim, if you have any questions, please feel free to call your principal point of contact with the firm.

On Thursday, March 23^rd, the Virginia Supreme Court decided Berry v. Fairfax County Board of Supervisors.  This case struck down the amended Fairfax Zoning Ordinance that has been in effect since March 23, 2021, known as “zMOD,” because it was adopted during a virtual meeting in violation of the Virginia Freedom of Information Act (“FOIA”). The Court concluded that the adoption of zMOD at a virtual meeting was not necessary to assure the continuation of the County’s essential functions and services, and therefore was not authorized by any of the exceptions to FOIA’s open meeting requirements.

This decision potentially impacts all actions of the Fairfax County Board of Supervisors on land use applications that were processed in accordance with zMOD. As of this notification, Fairfax County has acknowledged on its website that the effect of the decision is the reinstitution of the 1978 Zoning Ordinance (2021 Reprint).

The immediate consequences of the Court’s decision are being analyzed by our land use and litigation lawyers.  We are reviewing the potential impact of the Court’s decision on past and future rezonings, special permits, variances, appeals, building and occupancy permits, transactional questions, title issues, and more in order to advise our clients how to respond to this extraordinary development.

At a minimum, until zMOD is reenacted, it is likely that pending and new Fairfax County applications will need to conform to the prior (and, for the moment, current) Zoning Ordinance, or be placed on hold.  This means that all submission materials and zoning citations may need to be amended/reformatted in accordance with the prior Zoning Ordinance.

We are also reviewing potentially broader consequences of the Court’s decision because the FOIA provision upon which the case was decided has possible statewide implications. This includes whether actions taken by any public body in the Commonwealth during a virtual meeting between March 20, 2020, and July 1, 2021, that did not satisfy the technical requirements of FOIA could be challengeable.

We will advise our clients once more is known. In the interim, if you have any questions, please feel free to call your principal point of contact with the firm.

Update as of March 29, 2023

We understand the Fairfax Board of Supervisors is pursuing various parallel courses to change the Court’s decision or, at a minimum, mitigate its effects.

We anticipate that on April 11, 2023, the Board will vote to authorize public hearings on a proposed readoption of zMOD. The Planning Commission hearing would likely be on May 3rd, with the Board’s hearing scheduled for May 9th. In the meantime, County staff is reviewing pending applications under the prior 1978 Zoning Ordinance (2021 Reprint).

The County does not expect the Court’s decision to directly affect most previous approvals, including administratively approved site plans and permits that are not subject to change or revocation.

Anyone with questions about a pending application or a previous approval may contact Suzanne Wright, in the Department of Planning and Development (suzanne.wright@fairfaxcounty.gov) to be referred to the appropriate staff.

Starting January 1, 2023, Virginia law mandates specific payment terms in agreements between owners and contractors, and agreements between contractors and subcontractors of any tier. New code provisions effective this year also eliminate the enforceability of “Pay-when-paid” or “Pay-if-paid” clauses frequently found in subcontract agreements. These changes in Virginia law, coupled with the general contractor wage guarantee provisions effective since 2020, require that all general contractors and home builders review their form agreements to confirm compliance. Non-compliance could result in interest assessments and penalties for what was, until this year, perfectly legal and standard contract administration.

The 2020 changes to Virginia Code Section 11-4.6 make general contractors jointly liable for the wages of their subcontractor’s employees and could result in the imposition of penalties and fines against general contractors if the subcontractor’s employees are not paid their contract or minimum wages. While the statute requires subcontractors to indemnify general contractors for their failure to pay these wages to their employees, that will serve little comfort to general contractors facing these claims from their subcontractors’ employees. General contractors should strongly consider requiring subcontractors to include in their applications for payment affidavits that the subcontractor has paid their employees their due wages through the date of submission.

As indicated above, the 2023 changes to Section 11-4.6 dictate that project owners include in their construction agreements with their general contractors “a provision that requires the owner to pay the general contractor within 60 days of receipt of an invoice following satisfactory completion of the portion of work for which the general contractor has invoiced.” In turn, general contractors must pay their subs (and subcontractors must pay sub-subs, etc.) within 60 days of the receipt of an invoice for completed portions of work, or within seven days after the general contractor has been paid by the owner, whichever is sooner. Though the code includes some exceptions, contract provisions requiring payment by the higher tier as a condition of payment to the lower tier are no longer enforceable. Failure to make payment in the time period required could result in interest penalties applied to the payor.

Again, the 2023 amendments to Section 11-4.6 mandate that contracts made after January 1, 2023, contain the 60-day payment provisions. If your organization utilizes a form construction agreement, either as a property or project owner, general contractor, or higher-tier subcontractor, it is critical that it be reviewed for compliance on all new contracts. Well-advised general contractors and higher-tier subcontractors very likely are utilizing form agreements with pay-when-paid provisions that are no longer enforceable and should have those forms reviewed for compliance with these changes. Contractors of all tiers should also modify agreements to include new “wage payment confirmations” when receiving applications for payment from lower tiers to avoid wage claims from non-employees.

Finally, the effect of these statutory changes could result in an increased likelihood of a general contractor having to pay a subcontractor for work performed, despite non-payment by the owner. General contractors must be wary of this possibility and ensure that their agreements enable them to terminate for cause in these situations.

If a typical subdivision does not fit your development goals or creates more problems than it solves, then a land condominium may be the right fit.

Many clients have reached out to us with a desire to create a separate parcel of property so it can be sold or financed separately. However, sometimes the locality’s subdivision ordinance does not allow the subdivision because of setbacks or other restrictions, or timing requirements make processing a subdivision by ordinance problematic. Other clients have sought advice on creating conveyable space within a building that can be sold as a separate unit, such as for a grocery store anchor in a mixed-use building, but the applicable jurisdiction does not have a subdivision ordinance for this type of airspace subdivision. In these and other situations, creating a Land Condominium may be the right fit for the desired goal.

Land Condominiums can be used as a vehicle to effectively subdivide property into separate legal parcels or land units. This achieves essentially the same result as if you were to conventionally subdivide the property under a locality’s subdivision ordinance, only without having to comply with the subdivision ordinance requirements and restrictions. The land units created are assigned their own tax map parcel number and are freely conveyable and financeable. The shape and size of each land unit are not subject to any restrictions. For instance, the land unit boundaries can trace building footprints or you can create larger land units which you can then further subdivide as the development of the property progresses.

The Land Condominium established does not need to be registered with the Virginia Common Interest Community Board, like typical residential condominiums, and the Land Condominium instruments do not need to be submitted to any jurisdiction for approval. This means that the division of your parcel into separate land units can be accomplished very quickly. The Land Condominium is set up as a vehicle for dividing property, rather than for governing the use of the divided property and common elements between various land unit owners. Although there are certain statutory requirements that need to be met under the Virginia Condominium Act, the Land Condominium instruments can be kept bare-boned, containing only what is needed to comply with the Condominium Act to establish the Land Condominium.

Frequently we still need to address shared spaces, utilities, shared expenses, maintenance responsibilities, or necessary easements between different land unit owners. For example, in a building where one land unit contains a grocery store anchor while the remainder of the building is a separate land unit containing a residential building condominium, the foregoing issues may need to be addressed. To handle these scenarios, a reciprocal easement agreement is often used. Because the reciprocal easement agreement is a private agreement between the parties, it can be tailored to address the specific operational concerns and agreements between the parties. Alternatively, we can set up a property owners association to address the various matters on which the land unit owners will need to cooperate, or we can establish a traditional residential or commercial condominium regime over one or more land units (as in the example below).

A Land Condominium, together with a reciprocal easement agreement or separate property owners association, allows for flexibility in subdividing property and creating governance structures between the land units that may not otherwise be available under a traditional building condominium regime or under the subdivision ordinance. A good situation where the use of a Land Condominium benefitted the development of a project is when one of our clients reached out to us and sought our counsel as to the best way to structure their planned development of an approximately 650,000 square foot building to be constructed on a 3 acre site, which building would include, among various amenities and a below grade parking garage, approximately 400 residential dwelling units and 3 separate commercial spaces ranging in size from approximately 55,000 square feet to 6,000 square feet. We recommended subjecting the site to a Land Condominium regime whereby the residential dwelling units and garage would be one land unit and each of the commercial spaces would be separate land units, allowing for each land unit to be separately conveyed, financed, and taxed. It also allowed the residential land unit to be subjected to a conventional building condominium so that the client could sell individual residential condominium units. We then subjected the Land Condominium to a reciprocal easement agreement which addressed easements, maintenance, and cost sharing between the land units.

If you think that a Land Condominium may be a good solution for your development needs, or if you would like to learn more about how land condominiums can be used in your development projects, please do not hesitate to reach out to one of our transactional attorneys for more information.