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.

PRINCE WILLIAM, VA — Walsh, Colucci, Lubeley & Walsh is pleased to announce that Matthew A. Westover has been named a Shareholder of the firm.

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. Matt frequently gives presentations on land use and real estate matters to other lawyers for continuing legal education credit and to trade groups, including the Northern Virginia Building Industry Association.

“Since Matt has been with the firm, he has made a huge impact on behalf of his clients. We are excited to have him contributing on a larger scale. Matt will definitely be an asset to the firm’s leadership team,” said Managing Shareholder Dave Bomgardner.

Bernard Suchicital joins the firm as a land use planner in the Arlington office. Prior to joining Walsh Colucci, he worked as a Senior Land Use Planner with the Planning Division in the Fairfax County Department of Planning & Zoning. With over 14 years of planning experience in the public sector, Bernie served as a community liaison for the county and stakeholder groups, conducted land use planning research, managed the county’s community outreach process to analyze and review comprehensive land use changes, and prepared land use recommendations, staff reports, and public hearing items. Bernie holds a Bachelor’s degree in Public & Urban Affairs from Virginia Tech. Outside of work, he enjoys hiking, camping, plane-spotting, seeking out new wineries and breweries, and urban exploration. Welcome Bernie!

WINCHESTER, VA — Dennis J. McLoughlin and Chuck E. McWilliams, Jr., shareholder at Walsh, Colucci, Lubeley & Walsh, are excited to announce the merger of their tax and estate planning practices. Dennis and his support team will relocate to Walsh Colucci’s Winchester office at the Red Lion Tavern Building (204 South Loudoun Street, Winchester, VA 22601) effective January 1, 2019.

“I have worked with lawyers from Walsh Colucci over the years and feel this will be a perfect fit for my clients” said Dennis. Dennis brings to the firm over 43 years of experience in the practice of wills, trusts, estate planning and administration, and business, corporate, and tax law.

“Dennis will be a fantastic asset to our tax and estate planning practice” said Chuck McWilliams. Walsh, Colucci, Lubeley & Walsh welcomes Dennis J. McLoughlin and his team.