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.

When a locality changes its zoning ordinance, landowners can be left wondering what effect those updates have on their ability to pursue the future development of their property. Generally, under Virginia law, landowners do not have a property interest in anticipated uses of their land or their current zoning classification. As a result, if a locality updates its zoning ordinance, the amendments will generally control. However, in some limited circumstances, a landowner may have an enforceable right to the future development of its property for a particular use. These rights are called vested rights, and protect a landowner against future zoning ordinance updates. Virginia recognizes two main types of vested rights.

The first way a landowner may protect its future development rights is by obtaining a significant affirmative governmental act (a “SAGA”) of approval allowing for the desired uses. SAGAs can include, among other things, the approval of a proffered rezoning, special use permit, preliminary or final subdivision plats, or site plan for a particular use. The landowner must also show that it relied in good faith on the SAGA and incurred extensive obligations or substantial expenses as part of its diligent pursuit of the project. Examples of such acts could include hiring consultants or engineers to develop necessary plans for the approved project. If a landowner can meet this burden, the development rights granted by the SAGA are protected against future amendments or changes to the zoning ordinance for so long as the approval is valid. Generally speaking, subdivision plats and site plans are valid for five years, and development rights granted as a result would be protected for that period of time. However, the General Assembly, on several occasions, has extended the validity of certain approved subdivision plats and site plans beyond the typical five-year period.

Landowners may also be able to claim vested rights if they have relied in good faith on certain written decisions, orders, requirements, or determinations of a zoning administrator or other administrative officer. Such decisions or determinations must be in writing, final and effective for at least 60 days, and the landowner must have materially changed his position in good faith reliance on that decision or determination. If a landowner can make this showing, the use will be protected from future changes to the zoning ordinance, future changes to the interpretation of an ordinance provision, and from approvals that were erroneously made. It is important to note, however, that not all correspondence from the zoning administrator will qualify as a “decision” or “determination.”

Vested rights provide powerful protection for landowners, but successfully establishing such claims is often more difficult than they appear at first glance. If you would like more information about vested rights or would like to discuss your options to protect your development interests, please contact Erin Swisshelm.

Following the passage of the 2019 General Plan, which was the first overhaul of Loudoun County’s long-term planning document since the early 2000’s, Loudoun County has now turned its eye towards a comprehensive rewrite of its entire Zoning Ordinance. While this process has been ongoing for well over two years, the County recently concluded a 90-day referral period this summer, in which the public was encouraged to review the proposed draft text of the Zoning Ordinance and provide feedback to the County.

The Leesburg office took the opportunity to conduct an in-depth review of the proposed Zoning Ordinance. This review resulted in our drafting of a nine-page executive summary and the recordation of hundreds of comments. This combined letter was then submitted to County administration, County staff, and to all members of the Loudoun County Planning Commission and Board of Supervisors. The scale and scope of the feedback produced by our review speaks to the incomplete nature of the current draft text, as well as the major overarching concerns and issues that were brought to light by our review. Where possible, we offered solutions and options for resolving concerns, and have already had productive conversations with members of County staff, the Planning Commission, and the Board of Supervisors.

When the proposed Zoning Ordinance is adopted, it will be the controlling document for all development in the County. Our review of the Zoning Ordinance in its current state raises serious concerns about the future of land use regulation in Loudoun County. While large sections of the Zoning Ordinance have yet to be released, the sections that have been released to the public are overall too prescriptive and often incomplete. Loudoun’s 2019 General Plan provides an overall vision for development through 2040. The proposed Zoning Ordinance should be a document that provides a regulatory framework for citizens and the development community to facilitate the implementation of this vision.

We highly encourage stakeholders to review the draft text and continue to follow the Zoning Ordinance Rewrite process. Our Leesburg Office stands by ready to assist our clients and stakeholders in providing information and updates, in an effort to protect individual property rights, and safeguard against unnecessarily prescriptive and burdensome regulations which may limit Loudoun’s land use and economic potential.

At the Planning Commission’s August 30^th public hearing, we heard some encouraging comments from Commissioners in regard to taking the time necessary to produce a Zoning Ordinance that works.  The Planning Commission will hold another public hearing later this fall and will conduct many work sessions to review additional sections of the proposed Zoning Ordinance. While we are hopeful that a substantive and thorough review comes to fruition, the time and opportunities to make further changes are not limitless. For this reason, we would encourage anyone with specific questions or concerns to reach out to J. Randall Minchew so that we may begin to assess your case.

On May, 24, 2022, the Prince William Board of County Supervisors approved what is called the Utterback Rezoning, which rezoned approximately 81.6 acres from A-1, Agricultural, to PMR, Planned Mixed Residential for 222 single-family homes. The property, which is located near the intersection of Route 15 and Lightner Road in Haymarket, had been under consideration by the County since 2016. The Project is named for the County road that serves as its southern boundary, which was first laid off in the 1870s.

The Project, which includes approximately 26 acres of open space, will have a variety of active and passive amenities including two Community Parks and Corner Parks. Other highlights of the new community will include operational, safety, and pedestrian improvements to Lightner Road such as an additional turn lane (resulting in two designated left turn lanes and one designated right turn lane) onto Route 15 from Lightner Road.

Pete Dolan, John Foote, and Jessica Pfeiffer successfully guided this case for The Peterson Companies. Pete worked tirelessly on it prior to his passing in January of 2021.

 

 

[EXCERPT FROM THE ALEXANDRIA CHAMBER OF COMMERCE]

The Alexandria Chamber of Commerce selects Cathy Puskar as the 2022 Business Leader of the Year

The Chamber ALX is thrilled to announce Cathy Puskar as the 2022 Business Leader of the Year. She will be honored at the 2022 Best in Business Awards, presented by Burke & Herbert Bank, on October 27.

M. Catharine Puskar
Shareholder, Land Use & Zoning
Walsh, Colucci, Lubeley, & Walsh, P.C.

Cathy Puskar joined Walsh, Colucci, Lubeley, & Walsh in November 1998. Her practice focuses on land use and zoning matters in the City of Alexandria and Arlington County. With an in-depth knowledge of the law, process, politics, and people required to achieve her clients’ goals, Cathy has successfully represented a number of clients in obtaining the necessary entitlements for a variety of projects including major residential, commercial, and mixed-use developments. READ MORE

In a shift from its prior decisions and those of many circuit courts, the Virginia Supreme Court recently held that neighbors of two separate land use applications had standing to challenge the governing body’s approval of those projects. The Court’s decisions appear at conflict with its 2013 decision in Friends of the Rappahannock v. Caroline County Board of Supervisors, 286 Va. 38 (2013), and may open the door to more challenges to the legislative decisions of local governing bodies, which could cause delays in the approval of land use projects in Virginia not previously experienced.

In 2013, the Virginia Supreme Court decided Friends of the Rappahannock and established a two-part test to determine whether a party who is not an owner of the subject property has standing to challenge a legislative land use decision regarding the subject property. The complainant must (i) own or occupy real property within or in close proximity to the subject property and (ii) allege facts demonstrating a particularized harm to a personal or property right or an imposition of a burden different from that suffered by the general public. In Friends, the Court held that the neighbors of a proposed sand and gravel mining operation lacked standing to challenge the governing body’s approval of that project because they did not sufficiently allege facts to satisfy the second prong of the test despite the fact that they alleged that the approval of the project would interfere with their access to a right-of-way and would cause economic harm, noise pollution, and air pollution. One neighbor even alleged that the air pollution from the project would endanger the health of their asthmatic child. Nevertheless, the Supreme Court held that those allegations were insufficient to confer standing and dismissed the  case on demurrer.

In the nine years since Friends was decided, numerous circuit courts applied the Friends test and concluded that third party challengers lacked standing to challenge legislative land use decisions. Earlier this year, the Supreme Court reversed two of those decisions.

In Anders Larsen Trust v. Board of Supervisors (May 26, 2022), the Court held that neighbors of a proposed residential treatment center had standing to challenge a decision of the Fairfax County Board of Zoning Appeals, and reversed the circuit court’s dismissal of the case under the Friends standing test. The Court did not overrule Friends or change the test; however, it concluded that the neighbors satisfied both prongs of it. Among other things, the Court held that the alleged loss of value can constitute an interest distinct from that of the general public. The Court noted, however, that at this stage of the proceeding, the Court had to assume the plaintiff’s allegation that their property values would be diminished is true, and that if they do not sufficiently prove that allegation at trial, that the court must dismiss the case for lack of standing.

Two weeks later, the Court reached a similar result in Seymour v. Roanoke County Board of Supervisors (June 9, 2022). In that case, the Court held that owners of property accessed by a shared private easement had standing to challenge the issuance of a special use permit to another land owner who shared the same easement. The neighbors alleged that prior permits issued to the wildlife center already caused an increase in traffic and that the issuance of the SUP would increase these harms. In particular, the owners claimed the traffic (1) creates excessive dust, noise, and light pollution which wakes them up at night and caused one of the owners to have asthma attacks; (2) causes them to incur additional maintenance expenses for the road; (3) poses a danger to their children who walk along the road to get to the bus stop; and (4) decreases the value of their property. The Court held that these harms were not suffered by the public generally because the public did not have to deal with the pollution, maintenance costs, or added dangers.

The full impact of the Supreme Court’s decisions in Anders and Seymour remain to be seen; however, they could lead to more land use cases surviving standing challenges. That, combined with a new, automatic appeal as a matter of right to the Virginia Court of Appeals in these types of cases, could lead to previously unexperienced delays in the approval of land use projects in Virginia. If you have questions about whether your neighbor may have standing to challenge your land use approval, please contact Matthew Westover at (703) 680-4664 or at mwestover@thelandlawyers.com.