On April 8, 2024, Walsh, Colucci, Lubeley & Walsh, P.C. lost a beloved member of its family, Jerry K. Emrich, a founding member of the firm. Jerry was Arlington’s first County Attorney and represented the County during an eight-year period, 1973 to 1981, when the County experienced its most active development and implemented unique land use regulations. From 1983 to 2013, Jerry was in private practice at Walsh Colucci representing numerous clients in litigation, land use and condemnation cases. He has handled development cases in most Northern Virginia jurisdictions as well as in other parts of Virginia. Among Jerry’s most complex cases were private development of county owned land in both Arlington and Fairfax counties.  

Jerry was a devoted husband to his wife Lilienne, prior to her death, and a loving father to his daughters Leith and Amanda. Jerry grew up in the Midwest and attended Iowa State, which led to his lifelong love of dog sledding and Iditarod racing. He will always be remembered for his love of long walks, cigars, dog sledding, his dry sense of humor, his upbeat personality, his generous nature, and for caring deeply for his friends and colleagues, many of whom are proud to call him a mentor.  

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

On April 17th, BISNOW will be hosting the Future of Arlington County: Exploring National Landing, Rosslyn, Ballston, and Clarendon speaker panel. Firm Shareholder, Andrew Painter, will moderate a discussion entitled “Beyond the Bridge: Rosslyn and Ballston’s Asset Class Diversity and Forward-Thinking Strategies” amongst colleagues from Insight Property Group, Skanska USA Commercial Development, Monday Properties, and the Arlington County Board of Supervisors.  Andrew works in the firm’s Land Use and Zoning practice group, where he focuses on securing zoning entitlements across Northern Virginia, including Arlington County, Fairfax County, Loudoun County, the City of Falls Church, the City of Fairfax, and the Town of Leesburg. A native of Northern Virginia, Andrew has spent much time traveling and writing about the region’s land development history and received an award from the Virginia Chapter of the American Planning Association for his review of enduring rural landscapes in Fairfax County.

At the panel, you can expect to learn:

• What does Arlington County have in store for its 2024 development pipeline? How are developers and investors taking lessons learned in 2023 and applying them to their future project investments?
• Why are new residents, tenants and businesses being drawn to neighborhoods like Clarendon, Rosslyn, and National Landing? How are developers and investors selecting neighborhoods for their projects? What factors are being considered?
• What is in store for Arlington’s mixed-use development pipeline in terms of bringing in multifamily, retail and other projects? What are current resident and tenant demands and how are developers meeting them while staying within budget?
• How are the challenges of the economic downturn impacting construction and development in Northern Virginia? What solutions have developers and investors come up with to overcome these obstacles?
• How is the area working together to build a competitive live-work-play community compared to other NoVa counties?
• As the county continues to grow, how is the area strategizing to improve infrastructure, transportation, labor force and much more?

You can register to attend the event hosted at the Hyatt Regency Crystal City HERE.

 

 

 

 

 

 

 

 

 

 

 

On February 27, 2024, the Virginia Court of Appeals ruled in favor of a landowner and held that the BZA erred in refusing to issue the landowner a variance. In Board of Supervisors for the County of Louisa v. Vallerie Holdings of Virginia, LLC, the landowner purchased a two-story home bordering Lake Anna (the “Property”). The prior owner commenced, but never finished, remodeling work on the Property. After purchasing the Property and without applying for a building permit, the landowner attempted to repair and complete renovations. It then applied to the BZA for a variance to rebuild the staircase and deck, which extend into the Property’s five-foot setback. The BZA denied the variance because it determined that the landowner created its own hardship by spending on remodeling work before getting a building permit. The landowner appealed the BZA’s decision. On appeal, the Court of Appeals agreed with the trial court that the BZA erred when it denied the variance because the strict application of the zoning ordinance unreasonably restricted the landowner’s use of the Property and the landowner did not create its own hardship.  

Here are some key takeaways from the decision: 

• Expanding the Availability of Variances: The Court of Appeals held that the General Assembly intended to expand the availability of variances in its 2015 amendments to Virginia Code § 15.2-2309. For example, the Code now requires the BZA to issue a variance when the required elements are met. 

• Self-Inflicted Hardship Considerations: The Court held that under the facts of this case, the issues created by the prior owner could not be considered a self-inflicted hardship on the landowner who applied for the variance.  

 

This article was written jointly by the litigation practice group of our Prince William office.

The Arlington County Board has approved Orr Partners’ proposal to redevelop a 2.2 acre parcel alongside Arlington Boulevard in the Radnor-Fort Myer neighborhood. The proposal includes the demolition of two small apartment complexes, both constructed in the 1950s, and the Red Lion Hotel that currently occupy the land.  In their place, Orr Partners proposes to construct an eight-story multi-family residential building with approximately 445,732 square feet of gross floor area and up to 446 residential units.  The applications were shepherded through the zoning review and approval process by firm Shareholder Nicholas Cumings and Land Use Planner Bernard Suchicital.

The proposed development will renovate and use the existing below-grade parking garage and add additional levels of parking at or above the grade of Arlington Boulevard, but below the grade of nearby sites and the neighboring retaining wall.  Access to the building, including the loading dock, will be located along Arlington Boulevard, which will minimize any impact to neighboring residential buildings (e.g., The Belvedere and Parc Rosslyn).  Community benefits include LEED Gold certified construction, among other green building design features, and the commitment of 22 committed affordable units, including two three bedrooms and 16 two bedroom units, providing much needed family sized committed affordable housing in the Rosslyn neighborhood.

The project continually improved during review by both staff and the site plan review committee as the Orr team was able to develop a positive working relationship with surrounding property owners and civic associations while also addressing important staff comments.  In particular, the team worked prior to and just after initial submission of the project to accommodate a newly planned bike path on Fairfax Drive – which required Orr Partners to shrink the floorplate of the building, but allows the County to construct important infrastructure here that will benefit the entire neighborhood, including future residents.  The team also worked hard to improve the design after receiving some very helpful and constructive feedback during the site plan review committee process, reinforced by comments from County staff.  The team changed façade materials, design, and patterns, and enhanced its commitment to biophilic design with some creative and thoughtful elements including a planted overhang at the building entrance which will serve as an unique, biophilic element that will call attention to the entrance of the project.

This article was jointly written by Shareholder Nicholas Cumings and Land Use Planner Bernard Suchicital.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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https://www.arlnow.com/2024/01/17/apartment-building-proposed-for-old-red-lion-hotel-site-nears-finish-line/

 

Firm Shareholder, Andrew Painter, will instruct a course on the history of development in Northern Virginia for the Center for Real Estate and Entrepreneurship at George Mason University’s Costello College of Business.  Andrew works in the firm’s Land Use and Zoning practice group, where he focuses on securing zoning entitlements across Northern Virginia, including Arlington County, Fairfax County, Loudoun County, the City of Falls Church, the City of Fairfax, and the Town of Leesburg. A native of Northern Virginia, Andrew has spent much time traveling and writing about the region’s land development history and received an award from the Virginia Chapter of the American Planning Association for his review of enduring rural landscapes in Fairfax County.

At the lecture, Andrew will cover questions such as: How did the built environment of Northern Virginia develop into the places we live, work, and entertain in today? How did residential communities develop, from the early settlement of Arlington through the emergence of postwar communities in Fairfax during the 1940s and 1950s to the establishment of large-scale communities in western Fairfax and the expansive planned unit developments in Loudoun and Prince William? What lessons from the past can we learn as we work to develop the region’s future?

If you are a real estate professional who moved to this area, just started your career, or want to learn more about the economic and development history of Northern Virginia, join us to deepen your understanding of this dynamic market, register for the lecture HERE.

Many Northern Virginians have visited Goodwill of Greater Washington’s retail store and donation center at 10. S. Glebe Road in Arlington County. The approximately 1.4-acre site, which features an aging two-story building constructed in 1954 and associated surface parking, experiences the highest volume of donations in Goodwill of Greater Washington’s portfolio, and is one of the most successful Goodwill donation centers nationwide. 

On February 24, 2024, the Arlington County Board approved a rezoning and 4.1 site plan to permit the redevelopment of the site into a new 178,425-square foot mixed-use building.  

The building will include a new Goodwill retail store and enlarged donation processing center, a 3,000-square foot child care facility with capacity for up to 40 children, as well as five floors of all-affordable housing, containing 128 committed affordable housing units (CAFs). With an eye towards serving families and larger households, approximately 73 percent of the CAFs will be two- and three-bedroom units. The building will be served by two levels of below-grade parking. 

The project represents a unique partnership between two non-profit organizations that have long served Arlington County: Goodwill of Greater Washington and Affordable Homes & Communities (AHC).  

Founded in 1935, Goodwill of Greater Washington is a nonprofit organization that provides free job training, education, and supportive services to people faced with disabilities and/or barriers to employment. AHC, established in 1975, is a regional developer of affordable and workforce housing.  

The project represents the first time that Goodwill, anywhere in the country, has partnered with an affordable housing provider to redevelop one of its facilities into a vertically-integrated mixed-use building.  

Planning for the project began more than three years ago when Goodwill of Greater Washington began exploring ideas for upgrading the existing retail store and donation center. After several discussions and design consultations with project architect Michael Foster of MTFA Architecture, PLLC, Goodwill decided to explore the concept of partnering with an affordable housing provider to create a larger mission-driven family-focused mixed-use project. It selected AHC as its joint venture partner.  

Atypical of most Arlington 4.1 site plan applications, a predominant focus of the proposed design is Goodwill’s critical need to accommodate and efficiently process onsite a large volume of community-based donations. Additional considerations include the need to improve the donation and employee experience, bicycle access, and pedestrian safety. 

MTFA’s design, as approved, separates donation, residential, and retail traffic, creates a donation drive aisle, reduces queuing along S. Glebe Road, accommodates loading truck maneuvering, and moves all donation drop-offs and processing within the new building.  

The project will enhance pedestrian safety through the closure of one of the two-existing driveways along S. Glebe Road. It will also deliver an enhanced 10-foot wide clear width sidewalk with plantings, as well as a portion of the planned Arlington Boulevard multi-use trail. An onsite 10-foot wide high visibility raised crosswalk with stop bar and signage will also be provided.  

Environmental sustainability and landscaping figures prominently into the overall design. The mixed-use building will achieve EarthCraft Multifamily Gold certification, and the project nearly doubles the amount of landscaped open space on site, provides an approximately 5,550-square foot outdoor play area, plants additional trees, and features bioretention planters.  

When taken together, the project will provide critical upgrades to an important non-profit facility that is heavily used by Arlington County residents. It also advances goals found in the County’s Affordable Housing Master Plan, Child Care Initiative, Master Transportation Plan, and Community Energy Plan. 

Walsh Colucci shareholder Andrew Painter and associate attorney Lauren Riley represented Goodwill and AHC throughout the process. 

Interest in large outdoor video screens in mixed-use developments, outdoor shopping malls, and lifestyle centers has increased in recent years as a way to augment retail vitality as well as imbue a sense of place and visual interest in mixed-use common areas.

With rapid technological advancements in technological color and high-definition over the past decade, such screens have been used to display motion pictures, media broadcasts, live events, concerts, art displays, animation, media advertising, and more. Two well-known local examples of large outdoor entertainment displays may be found at Mosaic District and Comstock’s Reston Station development.

On February 24, 2024, the Arlington County Board authorized a request to advertise public hearings (an “RTA”) to begin the process to amend the Arlington County Zoning Ordinance to permit such visual display screens in certain large mixed-use developments. The amendment would replace the current Zoning Ordinance definition of “Large Media Screens,” and add definitions and performance standards regarding brightness, hours of operation.

While the performance standard parameters have yet to be drafted, it can be reasonably assumed the amendments will include requirements related to outdoor speakers/sound amplification, hours of usage, and locational criteria (e.g., limitation on distance from residential uses and lines of sight to public roadways).

Similarly, a determination of qualifying retail developments is not yet known; however, it is anticipated that these screens would be allowed in projects such as Westpost (formerly Pentagon Row), the Village at Shirlington, The Crossing Clarendon (formerly Market Common), Courthouse Plaza, Ballston Quarter, Pentagon Centre, and the Fashion Centre at Pentagon City.

The RTA represents a major step forward in the implementation of the second round of Commercial Market Resiliency Initiatives (“CMRI”), which seek to enable the County to better respond to changing economic conditions and consumer trends in the face of increased office vacancy and decreased commercial property tax revenue.

The request to advertise authorizes Planning Commission and County Board public hearings as early as April 2024.

Walsh Colucci will continue monitoring this initiative. More information may be found here: https://meetings.arlingtonva.us/CountyBoard/Documents/ViewDocument/_1%20-%20Board%20Report%20(Final)%20-%2026504305%20REQUEST%20TO%20ADVERTISE%20A%20PUBLIC%20HEARING.pdf?meetingId=2458&documentType=Agenda&itemId=51932&publishId=31579&isSection=false

This article was written by firm Shareholder Andrew Painter.

I don’t know whether to be proud or to be depressed by the fact that I am now at the point in my career when I can use phrases like: “When I started practicing law…”  or “When I learned how to do it, we always….” Causing every younger attorney within earshot to roll their eyes.   In any event, I was recently involved in a matter in which I was sorely tempted to start using those phrases.  Here’s the story, the facts have been greatly simplified and the names have been changed to protect the innocent: 

The story starts with a real estate agent, Betty Sellitnow.  Betty received an email, generated through a marketing website, from the owner of an undeveloped lot, Joe Lotowner.  Joe expressed an interest in selling his lot and, of course, Betty wanted to sell it, now. 

Even though the county tax and other records showed that Joe lived less than 5 miles from Betty’s office, Betty nonetheless elected to email the listing agreement to Joe to sign via DocuSign, rather than meet with him in person.  Betty also had Joe send her a copy of his driver’s license, just to be sure he was not a scammer. Joe e-signed the listing agreement and promptly returned it, along with the copy of the driver’s license, to Betty, all via email.  Betty jumped right on selling the property, now. 

Betty found a buyer, John and Alice Happycouple, who offered to buy the property for $400,000.00.  Betty promptly emailed the contract to both sides for execution.  Both sides signed the contract, once again via DocuSign.  All was right with the world. 

Betty referred the closing to Impregnable Title to handle closing, with the title insurance policy to be issued by Awesome Title, an agency in which Betty co-owned an interest along with the owners of Impregnable.   

Shortly before the scheduled closing date, Joe contacted Impregnable, by email,  to let them know that he would be on vacation in the Outer Banks on the day of closing.  He asked them to email the closing documents to him so that he could print them up, sign them, get the relevant documents notarized locally, and return them to Impregnable.  Joe remotely signed and returned the closing documents, including an original notarized deed.  Closing went down without incident.  Impregnable wired Joe’s proceeds to an account Joe had provided. 

Shortly after closing, Impregnable got a call from the local police.  The police had been monitoring the account in question because of past fraudulent activity.  They asked why Impregnable had wired such a large amount of money to the account.  Further investigation revealed that: 

• The person claiming to be Joe (who had communicated with both Betty and Impregnable only via email and whom nobody had even met face-to-face) was not really Joe. 

• The signature and notary’s acknowledgement on the deed were both forgeries.   

• Even though Joe said that he was on vacation in the Outer Banks, the deed was allegedly notarized in Hanover County, Virginia and was overnighted to Impregnable from Norfolk, Virginia. 

• The emailed driver’s license was a fake.  

Impregnable immediately contacted their bank to try to recall the wire.  Alas, it was too late, the money was gone. 

Impregnable, to their credit, immediately tracked down the real owner, Joe Lotowner, to notify him of the fraudulent transaction and advised John and Alice Happycouple to make a claim of their title insurance policy.  They also immediately notified their Errors and Omissions carrier of the potential claims. 

Impregnable’s Errors and Omissions carrier immediately denied coverage and filed suit in the U.S. District Court for declaratory judgment over the coverage issue.  Impregnable was on their own. 

The real Joe immediately filed suit against John and Alice Happycouple under a number of theories to rescind the deed or otherwise quiet title.  John and Alice responded with a third-party complaint against Betty and Impregnable for their failure to confirm that the Joe with which they were dealing was the real Joe.   

The title insurance underwriter, after a thorough investigation, confirmed that the deed and notarization were both forgeries.  Because of this, the title insurance underwriter paid policy limits of $400,000 to John and Alice, but that’s not the end of the story.  The title insurance underwriter then immediately filed suit against both Impregnable and Awesome Title under multiple theories, including breach of their agency agreements. 

John and Alice’s claim for damages was far in excess of the $400,000 purchase price for the property, because they claimed to have had expended quite a large amount of money designing and pursuing construction of the “home of their dreams”.  So, John and Alice were not done with Impregnable and Betty.   

The last I checked, and I do not plan on checking again, ever, Impregnable and Awesome had settled with the title insurance underwriter and had also settled with John and Alice.  Both settlements were funded directly by Impregnable.  John and Alice’s suit against Betty is still on-going, as far as I know. 

All of the title insurance underwriters now have standard operating procedures for remote closings.  However, even when a closing agent follows all of those procedures, a fraudulent seller can slip through the cracks.  When I started practicing law, we always made sure that both sides were physically at the closing table and that one of our own notaries took the steps necessary to confirm the identity of the parties.  While the world has changed, the basics have not.  The entire mess could have been avoided in its entirety if someone, anyone, involved in the transaction would have insisted on meeting the seller in person.  If that was not possible, many other steps could have been taken at any point in the process to confirm that Joe was really Joe or at least that the notary was really the notary.  Don’t let it happen to you. 

This article was written by firm Shareholder John Rinaldi.

 

Congratulations goes to Joanna Thomas and Brooke West, who participated in the 42^nd Annual National Trial Advocacy College at University of Virginia School of Law. During this intensive week-long course, they were instructed by some of the country’s finest trial lawyers and judges on how to effectively present opening statements, conduct direct examinations, cross-examine adverse witnesses, and craft compelling closing arguments. The week culminated with a mock jury trial with state and federal judges presiding. Both Joanna and Brooke successfully advocated for their client, resulting in a jury verdict in their favor.

Credit goes to Andy Burcher encouraging Joanna and Brooke to participate.

This experience will allow Joanna and Brooke to help our clients in the complex trials we have scheduled for 2024 and beyond.