Arlington County’s Department of Community Planning, Housing, and Development recently released the long-awaited Draft Area Plan Langston Boulevard Area Plan, which may be found here.

The Draft Area Plan sets forth a comprehensive policy framework to guide future public and private investment in Arlington’s Langston Boulevard/U.S. Route 29 corridor. The document represents the first major corridor-wide planning effort for Arlington County’s portion of Route 29 since the adoption of the General Land Use Plan in 1961. 

With the hope of transforming the typology of Langston Boulevard into a “green main street,” the Draft Area Plan sets forth a vision, goals, policies, and implementation strategies to guide long-term public and private investment in the Langston Boulevard corridor.

The Draft Area Plan groups its recommendations around nine key planning areas and sets forth a series of design principles for new development, with an emphasis on biophilia, safety, social connections, placemaking, and neighborhood identity.

The Draft Area Plan builds on the 2022 Preliminary Concept Plan by including additional recommendations for pedestrian safety, housing affordability, and building sustainability/carbon neutrality. It also makes recommendations for additional parks, plazas, and pedestrian connections in each neighborhood. Taller building heights are also recommended at key intersections and transit-proximate activity hubs.

The County will collect feedback on the Draft Area Plan this summer. Planning Commission and County Board hearings are tentatively expected in the September/October timeframe.

To elicit public feedback, the County will be hosting three open houses for the public on July 12^th, 20^th, and 26^th from 12:30 p.m. to 2:00 p.m. at the Langston Boulevard Alliance Design Studio, located at 4500 Langston Boulevard. Additionally, the public may provide feedback online by July 30^th here.

Please contact the firm for further information and ways to participate in the process.

 

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Since August 2021, Fairfax County staff have been reviewing updates to the County’s off-street parking and loading regulations—the first such comprehensive evaluation of these regulations since 1988. Known as “Parking Reimagined,” staff is proposing to modernize these requirements, which includes tiered parking reductions and minimum bicycle rates.

Parking Reimagined is scheduled to be heard by the Planning Commission on Wednesday, July 25, at 7:30 p.m. and the Board of Supervisors on Tuesday, September 26^th at 4:00 p.m. A virtual public engagement meeting will be held on Thursday, June 29^th at 7:00 p.m.

More information on Parking Reimagined may be found here.

Restaurants are a critical component of sustainable and active mixed-use areas in Arlington County. The County’s pandemic-era Local Emergency Declaration, which expired on August 15, 2022, created an expedited process for temporary outdoor seating areas (“TOSAs”) to allow restaurants, bars, and cafés with valid Certificates of Occupancy to provide outdoor seating through an expedited and application process.

The TOSA process, which will end on August 15, 2023, has proven extremely popular and afforded restaurants the ability offer a safer dining experience to make up for reduced indoor seating capacity.

With an eye towards helping restaurants expand dining options with fewer restrictions, and to learn from the lessons of TOSAs, the Arlington County Board last fall initiated its “Future of Outdoor Dining” (“FOOD”) study. The study’s purpose is to examine which aspects of the TOSA program should be incorporated into permanent outdoor café seating regulations, and improve the County’s overall outdoor café framework.

Over the past seven months, County staff have gathered information, evaluated experiences in peer jurisdictions and engaged with the community. The result of this extensive research effort has been the creation of a draft framework of proposed amendments to the Arlington County Zoning Ordinance and the County’s 2013 Guidelines for Outdoor Cafés.

At present, outdoor cafés may be approved on private property through an administrative process subject to certain use standards. They may also be approved on public property in conjunction with a 4.1 site plan or upon receipt of a use permit.

The draft framework seeks to streamline the approval process such that outdoor seating may be approved via an administrative review process in both public- and privately-owned spaces. The draft framework proposes amendments to Articles 7, 8, 12, and 14 of the Zoning Ordinance. Some of the changes include the following:

• For Outdoor Cafés On Private Property: The draft framework proposes that outdoor cafés must obtain a new (to be created) Arlington County Code Chapter 70 outdoor café license. Café furniture (e.g., tables, chairs, bars, server stations, and canopies) would be permitted to be affixed to the ground. Sound and AV equipment will no longer be permitted in areas adjacent to R or RA districts without use permit approval. Cafés may be located on parking spaces that do not necessarily meet the Zoning Ordinance’s parking requirements with approval of a use permit.
• For Outdoor Cafés on Public Property/Sidewalks: The draft framework proposes that outdoor cafés must obtain a new Chapter 70 outdoor café license. Outdoor cafés must be located in front of restaurants (rather than separated from the restaurant), and pedestrians must have a minimum six-foot wide straight and unobstructed clear zone. Sound and AV equipment will no longer be permitted in areas adjacent to R or RA districts without use permit approval.
• For Outdoor Cafés in Privately Owned Public Spaces (“POPS”): The draft framework includes proposes a new Zoning Ordinance definition to account for approximately 75 POPS throughout the County that are privately owned but are under public access easement or license. Upcoming guidance from the County will address specific needs for POPS café permits and licensing and the County may pursue a use permit process for such seating areas.

The draft framework will be heard by the Planning Commission at its July 3, 2023 meeting, and is tentatively scheduled to be heard by the County Board on July 15, 2023.

More specific information on the Zoning Committee’s proposed changes may be found here.

 

Hundreds of miles of underground infrastructure lie beneath Northern Virginia’s urban and suburban neighborhoods. Many of these facilities, including sanitary sewers and water mains, were constructed during the region’s postwar building boom between the 1940s and 1980s. In some instances, they are fast approaching the end of their useful life, may not meet new sewer design standards, and/or are undersized for the amount of future development contemplated under the region’s local planning documents.

This is certainly true in Fairfax County, which has experienced substantial infill development and redevelopment in its urban centers, transit station areas, community business centers, and suburban business centers in recent years.

The question of how to upgrade or enlarge older undersized sanitary sewer facilities to accommodate new growth has been a top priority for the County over the past two years. In some instances, new developments have proffered cash contributions towards upgrades. In other instances, developers have proffered to study downstream flow issues and upgrade systems where deficiencies exist. Fortunately, there have been relatively few capacity-related issues in the daily operation of Fairfax County’s sewer system.

However, in an attempt to accelerate the upgrading of sewer lines before demand exceeds capacity, the Board of Supervisors on December 6, 2022, adopted a new policy for reimbursing developers for upgrading sewer facilities that serve both a specific development project as well as general future growth in flow.

Under the new policy, where a project is proposed in a sewer service area that experiences, or is likely to experience, deficiencies in its sanitary sewer system capacity, the developer would be responsible for upgrading/enlarging the system.

Developers would be eligible for reimbursement for the cost of the upgrades in a proportional amount equal to the difference between: (1) existing background flow plus the anticipated buildout flow under the Comprehensive Plan; and (2) future flows exclusively from the proposed development.

While the Department of Public Works and Environmental Services would be chiefly responsible for implementing the new policy, the Department of Planning and Development would be responsible for calculating the buildout analysis under the Comprehensive Plan.

All hard and soft costs specifically related to the installation of the upgrades would be eligible for reimbursement including, but not necessarily limited to, construction management fees, legal fees associated with easements, and more.

Partial reimbursement can be requested during the project (e.g., at the 40 percent, 80 percent, and 100 percent project completion level), or it can be requested at the conclusion of the project when the upgraded facilities are turned over to the County.

Reimbursement is contingent upon the execution of an agreement with the County that would be negotiated prior to the issuance of the land disturbance permit for the project. The developer must obtain three separate bids from contractors, and the County will base its reimbursement upon the lowest bid (unless otherwise agreed to).

There exists no timing requirement for the installation of the upgraded infrastructure and, as long as the reimbursement agreement is executed and bonds are in place for the enlarged facilities, a developer may phase its construction and determine delivery of the agreed-upon upgrades.

However, a development would only be able to receive Residential Use Permits and Non-Residential Use Permits equal to the amount of available flow capacity remaining in the sanitary sewer system. RUPS/Non-RUPS which would result in flows exceeding such capacity would not be issued until the upgrades were completed.

Funding for reimbursement is anticipated to be generated through a $0.20 per month increase on residential sewer bills, a $182.00 increase in Availability Charges for single-family homes, and a $146.00 increase in Availability Charges for townhomes and multifamily projects. These increases will take effect beginning in 2024.

Any project for which a land disturbance permit has not yet been issued as of December 6, 2022, is eligible for reimbursement under the new policy.

If you have questions about the new policy or its implementation, please contact our firm.

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.