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.

“[P]roffers are voluntary commitments made by landowners in order to facilitate approval of conditional zoning and rezoning requests by ameliorating the impact of development on their property on the local infrastructure and the character and environment of adjoining land.” Hale v. Bd. of Zoning Appeals of Town of Blacksburg, 277 Va. 250, 273 (2009). They are so useful that the Supreme Court has held that a proffer amends the otherwise applicable provisions of the locality’s zoning ordinance. Rowland v. Town Council of Warrenton, 298 Va. 703(2020).

On June 2, 2022, however, the Virginia Supreme Court issued its opinion in Board of Supervisors of the County of Albemarle v. Route 29, LLC, Record No. 201523 (Goodwyn), holding that the unconstitutional conditions doctrine can apply to voluntary proffers, a ruling that can affect both the drafting and acceptance of proffers, and years later the attempted enforcement of a given proffer.

The case arises out of a September 2007 rezoning approved by the County Board of Supervisors for Hollymead Town Center, a large Charlottesville development north of downtown on Route 29, subjected to numerous proffers. The property has been owned by Route 29, LLC since 2009. The proffer at the center of dispute provided that public transportation service provided to the Town Center by the County would require the Owner to contribute cash to the County for operating expenses relating to such service totaling $500,000, to be paid over 10 years (the “Transit Proffer”).

In 2016, the County finally initiated a “Commuter Route” to run from northern Albemarle County to Downtown Charlottesville, with a stop at the Town Center, and, contending that the Owner owed money under the Transit Proffer demanded payment of a first $50,000 tranche. The Owner objected, however, that the Commuter Route had nothing to do with the Transit Proffer, that the Town Center did not create a need for it, and that while there was a stop at the Town Center the Commuter Route never stopped there when the Town Center was open and transit services might have been of use. It refused to pay the demanded sum, so the County issued a zoning violation for failure to comply with the Transit Proffer, and denied the Owner’s renewed objections on appeal.

The Owner then filed a complaint and petition for review in the Albemarle Circuit Court seeking injunctive relief and contending that the Commuter Route was not a valid trigger of the Transit Proffer’s obligations. The Circuit Court overruled the County’s Demurrer and Plea in Bar and denied the County’s Motion to strike at trial. The case was appealed.

The Virginia Supreme Court first acknowledged that the U. S. Supreme Court has long recognized what is called the unconstitutional conditions doctrine, citing Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 607 (2013). The purpose of the doctrine is to vindicate “the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” In the land use context, the unconstitutional conditions doctrine prevents a locality from conditioning the grant of a land use permit on an applicant’s surrender of its 5^th and 14^th Amendment rights to just compensation for property improperly expropriated for public use. Id. at 613. As noted in Nollan v. California Coastal Comm’n, 483 U.S. 825, 834, 837 (1987), while a state may regulate land use through the police power to further legitimate state interests, it may not use this power to unlawfully coerce concessions from land use applicants seeking to repurpose their property.

Because a rezoning can, and often does, impose costs on the public that payments or land dedications toward mitigation efforts can offset, the Supreme Court recognizes that a proper balance must be struck between preventing an applicant’s legitimate mitigation of its impact, against governmental demands that slip constitutional bounds. It has struck this balance through the evolution of a test to determine whether an exaction of real or personal property operates as an unconstitutional condition in the land use permitting context.

First, an “essential nexus” must exist between the condition placed on the land use, and the “original purpose of the building restriction.” Id. at 837. The condition must relate to the project upon which it is imposed. Second, the degree of connection must satisfy a “rough proportionality” test, which requires a “reasonable relationship” between the exaction imposed by the conditional proffer and the projected impacts of the project. Dolan v. City of Tigard, 512 U.S. 374, 391 (1994). The Court has emphasized that this is not a precise mathematical calculation, but rather an “individualized determination” that the required dedication is related both in nature and extent to the impact of a proposed development. Id. Significantly, a locality cannot evade the unconstitutional conditions doctrine by claiming that a proffer is simply a condition precedent to the grant of a land use approval, and thus deny that approval if the applicant refuses to give in to the government’s demand. Koontz, 570 U.S. at 606. An applicant need not agree with an unconstitutional condition sought to be imposed, and may challenge a refusal to approve its proposal when faced with such condition.

In Route 29, our Supreme Court held that the County had not even made an effort to identify an essential nexus, or a rough proportionality, between the Commuter Route Transit Proffer and any impact created by the Town Center to which that Proffer was directed. Moreover, even if a nexus did exist, the County had not conducted the “individualized determination” as to whether the imposition of the monetary requirements in that Proffer might be unconstitutional as applied, and as required by Dolan. The Court determined that the evidence sufficed to support the lower court’s conclusion that the County had failed to meet its burden of proving that the Transit Proffer, as it was being enforced, was simply an extraction of money from an available target.

While the Court accepted that the Proffer was not void on its face, its ruling recognizes that attempted enforcement of an unconstitutional condition may be challenged at any time, and is not constrained by the 30-day appeal period in Virginia Code §15.2-2285 (F). In Virginia, such claims may be raised either through the course taken by Route 29, or by proceedings under Virginia Code §15.2-2208.1, colloquially known as the Koontz Remedy Statute, enacted after the Koontz decision above.

If you have questions as to how the unconstitutional conditions doctrine may apply to cases in which you are involved, please contact John Foote or Joanna Thomas at 703-680-4664.

The Fairfax County Board of Supervisors (the “Board”) adopted changes to the Site Specific Plan Amendment (SSPA) process aimed at shortening and streamlining the overall process to amend the Comprehensive Plan.  The SSPA process provides an opportunity for landowners, community members, and developers to request a change to the Comprehensive Plan in response to a change in circumstances.  The new process includes a three-phase structure comprised of the nomination phase, screening phase, and evaluation phase. The pilot program will begin on October 1, 2022 and includes a one-month nomination period when a nomination can be submitted for any property within Fairfax County. The new SSPA process includes enhanced nomination criteria aimed at improving the nomination packages and showing the viability of the proposed nominations earlier in the process.  Preparation of a nomination may take some time, so potential nominators should start working on their nomination packages.  The new SSPA process is scheduled to occur every two years.

Nomination Phase

The first step in the new SSPA process is a Nomination Phase.  The Nomination Phase will last one month, as compared to the previous three months.  A nominator must address additional eligibility criteria including:

• Consent from the property owner;
• A potential development timeline and key factors for engaging the community;
• An illustrative plan of the proposal;
• Acknowledgment that supportive data and additional analysis may be requested in the Evaluation Phase; and
• A statement of justification.

Staff will look closely at the statement of justification, which should include a description of the change in circumstance, emerging community need and/or market changes that would be addressed by the nomination, and how the project advances planning objectives and Board policies.  Re-submittals from a prior SSPA cycle may be permitted if the nominator can justify why additional review is warranted.

Nominations will not be accepted if duplicative of another nomination, or if the nomination is for a property that is subject to a pending Comprehensive Plan amendment.

Screening Phase

After nominations are submitted, they proceed to the Screening Phase. The Screening Phase will begin with an initial staff review for eligibility and the Board’s acceptance or rejection of the nomination into the SSPA process as a County Executive Action Item.  The Board is expected to take action to accept individual nominations into the SSPA process at its December 6, 2022 meeting.

Next steps in the Screening Phase including community engagement, possibe targeted community meetings, and a Planning Commission workshop.  These steps are expected to take approximately four months.  At that time, the work program will be authorized.

Evaluation Phase

 Nominations then move to the Evaluation Phase, previously called the “Implementation Phase.”

The new process eliminates a uniform end date, which is anticipated to shorten the previous two year review timeline.  Rather than the “first-come, first-served” method of the previous process, the new SSPA process will feature a triage model. Under the triage model, projects will receive priority according to factors such as the urgency of the need they respond to, whether the project provides geographic equity, and the available resources of staff.

In addition to the triage model, the new Evaluation Phase will feature Adaptive Plan Amendment Engagement, which requires Staff to determine for each proposal whether there will be a need for land use committees, community meetings, and/or ad-hoc task forces.  Task forces will be reserved for proposals requiring more complex analyses. Singular amendments of limited scope and impact will proceed more quickly, and will require fewer meetings and less community outreach. All amendments will still require notification to neighboring properties and the advertisement of public hearings before the Planning Commission and Board for adoption of a Comprehenisve Plan amendment.

Ongoing Revisions to the Process

 The new SSPA process was prepared with the goal of increasing inclusion and community engagement, as well as to achieve a better balance of processing time, evaluation, and use of staff, community, Planning Commission and Board resources.

The upcoming process has been presented as a “pilot program,” indicating that there may be additional changes.  Walsh, Colucci, Lubeley & Walsh will continue to monitor the progress of the new SSPA process.

For questions about the SSPA process or to file a nomination, please contact land use attorney Lynne Strobel.

Emotional Support Animals, Image Source: Public Domain

 

You may have noticed a proliferation of emotional support animals of all types, including alpacas, roosters, and snakes in public and private places. The use of assistance animals is on the rise, and both federal and Virginia laws have been amended to protect a tenant’s right to insist on having these animals in your apartment building or HOA—despite existing housing bylaws or leases prohibiting or limiting certain types of animals.

The federal Fair Housing Act (FHA) and the Virginia Fair Housing Law (VFHL) cover access to and enjoyment of private dwellings, which includes anything from a trailer to a condo to a single family home. With a few exceptions, these laws and regulations apply to all housing providers, property managers, owners, landlords, and real estate agents. Failure to comply with such laws potentially subjects housing providers to private civil actions and actions brought by the Attorney General. Both the FHA and VFHL give disabled persons the right to seek reasonable accommodations to use and enjoy a dwelling. Included in such reasonable accommodation is maintaining an assistance animal in a dwelling. Unlike the Americans with Disabilities Act (ADA) and Virginians with Disabilities Act (VDA), the FHA and VFHL provide broad coverage requiring housing providers to accommodate assistance animals (both service animals and emotional support animals) and do not limit the type of animal to typical domestic animals.

In 2017, Virginia codified the rights and responsibilities with respect to the use of assistance animals in a dwelling. Like the FHA, the Virginia statute specifically established that an assistance animal is NOT a pet and there can be no restriction as to the breed, size, weight, or type of animal providing the assistance, as long as the assistance animal does not pose a clear and present threat of substantial harm to others or to the dwelling. Thus, an emotional support alpaca could qualify as a reasonable accommodation request. While HUD provides guidance as to questions housing providers may ask to evaluate a reasonable accommodation request for an assistance animal, Virginia goes a step further and allows a tenant to support their request through documentation from any person with whom the tenant has had a “therapeutic relationship”, which includes anyone from a doctor to a peer support group member.

A reasonable request may be denied under particular circumstances and with case-by-case consideration. However, the code’s generous protections err on the side of allowing disabled persons to maintain their assistance animal. If you are confronted with these new and puzzling issues in your apartment complex, mobile home park, or condominium association, we can help guide you through the competing interests of the disabled person and the reasonable expectations of your association and your other residents.

If you have any questions about both service animals/emotional support animals or related topics, please contact Joanna E. Thomas. 

Transfer on Death Deed, Image Source: Rob Daly/Getty Images

Virginia introduced the Transfer on Death Deed in 2013 by adding the language of the Uniform Real Property Transfer on Death Act to Title 64.2 of the Code of Virginia. Since then, it has become a popular part of an Estate Planning package—but what does it actually do? Does it save a client time or money?

These deeds, which are fully revocable by the grantor, can save significant time and expense by being recorded in the jurisdiction in which a grantor owns property. Prior to the existence of the Transfer on Death deed, a transfer of real estate could only be made after the death of the grantor by recording the Will and paying probate tax at 1/10th of 1 percent on average. This may sound minimal, but taking the average home price in Virginia ($335,000.00) this amounts to $335 in probate tax, not including recording fees based on the number of pages of the Will. In addition, the entirety of the Will is entered into public record. Transfer on Death deeds can generally be prepared for less than the probate tax and avoid the necessity of recording the Will of a decedent. Further, a Transfer on Death deed only shows the names of the beneficiaries, no additional information regarding the estate of the grantor is revealed. Finally, after the death of the grantor, the named beneficiaries simply have to present the death certificate to the clerk’s office and the transfer is finalized.

In addition to avoiding probate tax, a Transfer on Death deed preserves the stepped up basis of an heir. If property is transferred during the grantor’s lifetime, the heir receives the grantor’s cost basis, also known as “carryover basis.” This has significant consequences if the heir sells the property. For example, if in 2020 a grantor gave property to his child that he and his wife purchased in 1990 for $100,000, and the child went to sell the property for $400,000 in 2022, the child may owe tax on the $300,000 gain. In contrast, if the grantor was predeceased by his wife and had recorded a Transfer on Death deed any time prior to his death, then passed away in 2022 and his child sold the property shortly thereafter, minimal to no capital gains tax would be due.

The last advantage of a Transfer on Death deed is the flexibility it offers the grantor. The deed is fully revocable by the grantor. This is dissimilar from a Will which must have a codicil executed in order to change its contents. In addition, tracking codicils to a Will can be challenging and increases the chances of a creating a scenario where the intent of the grantor is unclear. In contrast, recorded Transfer on Death deeds have the added security of being a part of public record—but with the advantage of providing limited insight into the grantor’s estate.

In short, these instruments are highly advantageous for the majority of clients and a tool which helps a client avoid probate taxes while still giving his heirs the desirous step up in basis. Please contact our office if you have an interest in having this useful estate planning tool added to your documents.

For questions Estate Planning questions, please contact William Gibson.

Congratulations to land use associate, Lauren Riley who was named to the Alexandria Chamber of Commerce 40 Under 40, Class of 2022. The 40 under 40 program was established in 2016 by the Chamber to recognize top men and women, age 40 and under, who are shaping Alexandria’s future. The recognized individuals are engaged in a variety of fields including business, law, technology, nonprofit management, civic life, public service, education, and the arts.

As a land use attorney, Lauren has enjoyed the opportunity to work on development projects that directly benefit Alexandria. While working with City staff and communities, she is able to assist in delivering development that produce a variety of community benefits, including affordable housing, jobs, sustainability, open space, and economic development. Lauren hopes to contribute to making Alexandria a great place to live, work, and visit with her work as a land use attorney and with greater involvement in Alexandria community, including non-profit organizations and volunteer work.