Congratulations to land use Shareholder Andrew Painter, who was awarded the 2018 Bill Berry President’s Award by the Northern Virginia Building Industry Association (NVBIA). Andrew was recognized on January 26, 2019 at NVBIA’s annual President’s Ball for his outstanding contribution of time, talent, and resources for the betterment of the region’s homebuilding industry. Andrew serves on NVBIA’s Board of Directors and is also the Chairman for the Legislative Committee.

Committed to serving the housing industry in the Northern Virginia area, NVBIA was formed to create an economic and political climate within which the building industry is able to effectively meet the demand for affordable, attractive, safe, well-planned, and environmentally sensitive residential and business communities. NVBIA also promotes professional development and recognition through seminars, workshops, and award programs and conducts a full range of educational programs designed to help members achieve desired certifications, gain knowledge about hot new topics, and improve their business practices. The organization is also committed to promoting housing affordability across the region.

To learn more about Andrew’s practice areas and expertise, please visit his profile. For information about NVBIA, visit NVBIA.com.

On November 27, 2018, the Arlington County Board approved a rezoning, site plan amendment, and use permit amendment for a significant expansion and renovation of Virginia Hospital Center (VHC). VHC is located on North George Mason Drive, north of its intersection with Washington Boulevard. Surrounding development consists of single-family homes and townhomes. The Hospital is a not-for-profit and the only hospital in Arlington County.

The last major changes to the Hospital campus were approved by the County Board in 2000. Without additional room to grow on the existing campus, and faced with the urgent need to expand its capacity to treat patients, VHC reached an agreement with Arlington County in 2015 for a land exchange where the Hospital would receive the “Edison Site” which is a 5.6-acre parcel immediately adjacent to the existing Hospital campus. VHC proposed to seek zoning approvals for the Edison Site, in order to accommodate a new 245,428 square foot Outpatient Pavilion. The proposal also included approximately 1,694 additional parking spaces, increasing the overall parking supply on the Hospital campus to 3,726 parking spaces. The applications also included the expansion and renovation of hospital and medical office uses within the existing site, which would ultimately accommodate 101 new hospital beds.

VHC’s goal is to consolidate existing outpatient services on the Edison Site, freeing up space in existing buildings for expansion of the inpatient hospital facilities. Long term, VHC intends to focus inpatient care on the south side of the campus and outpatient care on the north side of the campus. The approved expansion and renovation is a significant step forward toward achieving these goals.

The County Board’s approval followed a three year design and review process, including over thirty-seven community meetings, eight open community forums, six Site Plan Review Committee meetings, and three County sponsored open houses. The project was originally considered by the County Board in September, and deferred for additional design changes focusing on pedestrian circulation through the site. Throughout the process, VHC made a number of design changes in response to feedback from neighbors, Arlington County staff, Planning Commissioners and County Board members. The resulting design is a careful balance of community feedback and the need to provide low-cost, efficient, and effective healthcare to Arlington residents.

Managing Shareholder Nan Walsh, with the assistance of Nicholas Cumings, represented Virginia Hospital Center on this matter.

Land Use Attorney Pete Dolan and Land Use Planner Marian Harders worked with Florida based Sage Development Group and Bourne Financial Group to obtain a Special Use Permit for the development of Harper’s Station, a 260,000 sf Continuing Care Retirement Community (CCRC), which will consist of a 3-story main building and seven villa units. Harper’s Station will offer a variety of amenities, including meals, specialized trained staff on duty 24 hours a day, seven days a week, housekeeping, swimming pool, fitness/therapy room and many social outlets for the residents. The community will offer three levels of care: independent living, assisted living, and memory care. The Harper’s Station campus will be situated on approximately 8.6 acres and will be located on the east side of Route 15, just north of the Route 15/Route 29 intersection.

At full build-out, Harpers Station will offer 18 memory care units, 50 assisted living units, 115 independent units and 7 independent villa units, for a total of 190 units (263 beds). Architecturally, all buildings will provide 360º architectural treatments that will include high quality building materials such as brick and stone veneer, hardie board and decorative metal treatments. Recreation opportunities will be provided within the main building and outdoors in internal courtyards and passive recreation open areas. The Special Use Permit was approved by the Prince William County Board of County Supervisors on November 20, 2018 and is projected to open in the first quarter of 2020.

Commonly a developer will divest his or her responsibility to maintain a private street within a community by using a deed of conveyance to transfer the developer’s interests in the streets to a homeowners association. However, a developer that wants to ensure the homeowners association retains ownership of the streets should be aware that there are certain steps that must be taken to properly transfer title of the streets to a homeowners association. Developers should be aware of a recent Supreme Court of Virginia ruling that reaffirms long standing Virginia law related to the ownership of private streets within a subdivision.

The Supreme Court in Ettinger v. Oyster Bay II Community Property Owners’ Association, Rec. No. 171542 (October 18, 2018) reaffirmed a legal rule in Virginia, which provides that a conveyance of property bound by a road includes a conveyance of title in the property to the centerline of the road, unless a contrary intent is clearly shown. The controversy in the case centered on the homeowners association’s desire to stop Ettinger from commencing construction on his parcel within the subdivision, so it attempted to blockade the street along the parcel to prevent access by Ettinger’s general contractor. The Supreme Court held that the homeowners association could not block the contractor from using the street along Ettinger’s parcel because Ettinger owned the property to the centerline of the street.

The outcome of the case hinged on the legal rule in Virginia that “a conveyance of land bounded by or along a way carries title to the center of the way, unless a contrary intent is shown.” Ettinger (quoting Martin v. Garner, 286 Va. 76, 80-81 (2013).  Since the subdivision developer owned title to the street as well as Ettinger’s parcel at the time it conveyed the parcel to its original owner, the developer was required to clearly indicate in the original conveyance deed an intent to convey only title to the parcel, and not also title to the centerline of the street, in order to avoid having title to the street attach to Ettinger’s parcel.

The legal rule in Ettinger carries with it a shadow over the validity of legal instruments such as deeds of conveyance for private streets from a developer to a homeowners association. Developers need to be aware that they may not transfer legal title or any accompanying ownership rights, other than maintenance responsibilities, to the homeowners association by standard deeds of conveyance and declarations of covenants, unless a contrary specific intent is shown.

A subdivision developer may show a specific intent to make the parcel’s boundaries terminate along the edge of the streets by conveying the streets to the homeowners association first, and then conveying ownership of the parcels (or lots) adjacent to the streets in a manner that expressly excludes title to the streets. Developers must carefully traverse this exception to ensure a specific intention is shown when they begin conveying the parcels within a newly established subdivision, since using a metes and bounds description and including the exact acreage may not be sufficient to exclude the interests in adjacent streets that the developer wishes to retain.

You can contact a member of our Real Estate Transactions Practice Group for help ensuring a homeowners association receives legal title streets within the subdivision, or for assistance exploring whether existing homeowners associations own title to the streets within their communities.