“[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.

 

 

In direct response to the tragic collapse of the Champlain South Tower Condominium in Surfside, Florida, Fannie Mae issued Lender Letter 2021-14. As of January 1, 2022, Fannie Mae’s new rules regarding the structural integrity of condominiums provide that Fannie Mae will not purchase loans for units in condominiums that have significant deferred maintenance or unsafe conditions. While the requirements set forth in the Lender Letter are styled as “temporary,” they are effective as of January 1, 2022 and “until further notice.”

Specifically, loans secured by units in condominium projects with significant deferred maintenance or in projects that have received a directive from a regulatory authority or inspection agency to make repairs due to unsafe conditions are not eligible for purchase.

“Significant deferred maintenance” is defined in Lender Letter 2021-14 as: (a) full or partial evacuation of the building to complete repairs is required for more than seven days or an unknown period of time; or (b) the project has deficiencies, defects, substantial damage, or deferred maintenance that: (i) is severe enough to affect the safety, soundness, structural integrity, or habitability of the improvements; (ii) the improvements need substantial repairs and rehabilitation, including many major components; or (iii) impedes the safe and sound functioning of one or more of the building’s major structural or mechanical elements, including but not limited to the foundation, roof, load bearing structures, electrical system, HVAC, or plumbing.

Additionally, projects that have failed to obtain an acceptable certificate of occupancy or pass local regulatory inspections or re-certifications would also be ineligible for purchase under Fannie Mae’s guidelines.

The above definition of significant deferred maintenance does not include routine maintenance to a building, or damage or deferred maintenance that is isolated to one or a few units. Loans secured by condominium units in need of routine maintenance or isolated deferred maintenance may still be eligible for purchase, subject to all of Fannie Mae’s other conditions and restrictions.

In response to the Lender Letter, condominium developers, unit owners associations, and management companies will need to ensure that reserves are properly budgeted and allocated to prevent deferred maintenance from accumulating.

Fannie Mae’s Lender Letter 2021-14 can be found here.

Freddie Mac, in bulletin 2021-38, issued similar guidance that went into effect on February 28, 2022, which can be found here.

If you need assistance understanding the impact of the new guidelines on a Virginia condominium, please contact Michael Kieffer at 703-528-4700.

With land values and the demand for residential development at record-highs, localities across Northern Virginia have increasingly looked to the redevelopment of older commercial shopping centers as a way to accommodate new investment and housing.

On January 11, 2022, the Leesburg Town Council took a major step forward in this regard when it approved Keane Enterprises’ proposal to redevelop the aging approximately 18-acre Virginia Village Shopping Center into a new mixed-use neighborhood.

Once a bustling suburban shopping center, Virginia Village was initially developed in the mid-1950s under the direction of the late John Ours. The center gradually expanded until it reached its current state in the 1980s. Keane Enterprises purchased the center in 2017 and began contemplating ways to give the center a renewed sense of vibrancy. It performed a market assessment, which determined the center to be outmoded in its layout, architecture, and environmental sustainability. For example, parking lots currently comprise approximately 85 percent of the property, and more than 70 percent of the property is impervious.

After exploring the concept of simply updating and repositioning the center, Keane explored what might be possible under the Town’s comprehensive planning documents. Keane learned that, since the 2006 adoption of the Town’s Crescent District Master Plan, the Town has targeted Virginia Village (and the entire Crescent District) as being ripe for substantial mixed-use redevelopment.

The Crescent District Master Plan, generally, encourages reinvestment in the Town’s older “first ring” commercial centers in a way that would expand and complement the historic downtown. The plan also envisions a new grid of streets and a break from the single use, suburban automobile-oriented development pattern that has pervaded Leesburg over the past 60 years. It also seeks to diversify the Town’s housing supply by attracting a mix of housing types that will drive the demand for retail and employment uses as a part of the Town’s long-term economic development strategy. To implement the Crescent District Master Plan’s goals, the Town adopted the Crescent Design District in 2013 with design regulations.

As approved, the Virginia Village project will include 65,000 square feet of ground floor retail uses and 100,800 square feet of office uses. The project will offer the first Class A office space to be built proximate to downtown Leesburg in recent decades, which will keep the Town competitive as a jobs center relative to newer mixed-use centers and submarkets.

The project will also provide a full continuum of housing opportunities by delivering 53 townhomes, 28 two-over-twos (stacked townhomes), 72 condominiums, and 490 multifamily rental units. Importantly, the project’s apartments will be the first to be built inside the Leesburg bypass since 1988, and a majority of them will be studios and one-bedroom units. This represents a substantial departure from the Town’s existing apartment stock, approximately 70 percent of which is comprised of two- and three-bedroom units.

Of critical importance, the project commits to 33 new Affordable Dwelling Units – the largest number of rent-controlled units yet delivered in the Town. Keane’s approach to housing diversity will add to the attraction of the Town as Loudoun County’s only HUBZone, which is a Small Business Administration program that requires 35 percent of employees to physically reside within a HUBZone.

Complementing the eclectic architecture found in the historic downtown, the project will include traditional vernacular brick materials, stone, and dark industrial metal accents. Shops and restaurants will seamlessly blend with the office and residential buildings. Structured parking will be provided and will be architecturally treated and shielded, ensuring an uninterrupted streetscape.

Recognizing that the Crescent District today lacks parks and opportunities for passive and active recreation, Keane spent substantial efforts on transforming much of Virginia Village into a series of highly-amenitized outdoor gathering spaces and parks. Keane intentionally focused on the quality of each open space and the types of activities that are likely to take place within these spaces.

A central green, for example, will serve as a focal point for the project’s townhomes and stacked townhomes, and will feature a multipurpose lawn and playground. A continuously-activated linear park along High Street will offer a lively-activated space adjacent to ground floor retail and outdoor dining. The proposed Ours Overlook—named in honor of the Ours Family, will serve as a publicly-accessible civic plaza and include an outdoor amphitheater for events.

Adjacent to Ours Overlook, Keane will dedicate land for an extension of Raflo Park, which will result in create the largest concentration of passive recreational space proximate to the historic downtown. As part of this open space, Keane has proposed a pedestrian bridge over the Town Branch stream that will connect the Ours Overlook to S. Harrison Street. This bridge will enhance pedestrian connectivity and provide an innovative signature visual element for the entire Crescent District.

Keane is particularly proud of the project’s environmental benefits, which will expand the mitigation of stormwater runoff,  enhance the site’s habitat and aesthetic opportunities, and ultimately aid in the reduction of the existing urban “heat island” effect. More than 400 new trees will be planted, and some 2.55 acres of existing floodplain along Town Branch Stream will be preserved, ensuring the protection of the natural habitat for wildlife and enjoyment of the public.

Over the course of more than two years, Keane and its design team – which included MV+A Architects, LandDesign, Urban, Ltd., and Gorove/Slade Associates – worked collaboratively with staff and decision-makers on myriad issues such as architecture, layout, and parking. Common ground was found regarding regulations that had never before been interpreted or applied. Keane solicited substantial community input through seven community meetings and through CoUrbanize, an online community engagement platform that generated more than 7,500 unique visits and nearly 1,200 comments. The Town Council public hearing included more than 20 speakers voicing support for the project.

The result of these efforts will be a regionally-significant marquis project that will provide a blueprint for how to transform an aging and environmentally unsustainable commercial strip mall into an exciting mixed-use neighborhood. By introducing job-friendly housing and increasing the amount of commercial square footage on the site, the project will also serve as a catalyst for encouraging redevelopment and new investment in the Crescent District.

 

 

On March 8, 2022, Fairfax City Council approved a rezoning and certificate of appropriateness application submitted by Pulte Homes to allow the long-anticipated redevelopment of the Breezeway Motel located on Fairfax Boulevard.

Walsh Colucci land use attorney Bob Brant guided Pulte through the application process, which included numerous work sessions with the City’s Planning Commission, Board of Architectural Review, and City Council, and outreach to the surrounding residential communities.  The approval allows Pulte to build upon the success of its nearby Mt. Vineyard community in the City, through the delivery of a vibrant neighborhood that will include 40 townhouses, 20 two-over-two condominium units, and a significant amount of publicly accessible open space.  Council’s approval also paves the way for a new 10,000 square foot commercial building that will take the place of the Breezeway Motel on Fairfax Boulevard.

In addition to the long overdue revitalization of the site, the development will result in a number of significant benefits to the City including road improvements and enhancements to the existing transportation infrastructure, streetscape improvements, the removal of above-grade utilities, and a substantial contribution to the City’s affordable housing fund.  The approved development is consistent with the City’s vision for the area as set forth in its Comprehensive Plan, and will serve as a catalyst for future redevelopment along the Fairfax Boulevard corridor.

The approval represents the Walsh Colucci land use team’s latest in a series of recent successful applications in the City of Fairfax, with several others in progress and on the horizon.  Please contact us regarding any of your land use needs in the City, or throughout the region.

 

Image Credits:  LPDA – Land Planning & Design Associates

In a recently-approved rezoning victory in the greater Winchester area of Frederick County, Virginia, Walsh Colucci secured approval of the One Logistics Park rezoning allowing for a development of 277 acres of land for industrial, logistics park, or data center uses together with a smaller, 12-acre commercial area along Millwood Pike (Route 50) for supportive retail and commercial uses.  Randy Minchew, Managing Shareholder of our Loudoun Office, took the lead on this application and secured its approval. A map and concept plan showing the One Logistics Park approval is attached.  One Logistics Park will also provide a critically-needed regional transportation improvement through the completion of Coverstone Drive from the Frederick County Public Safety Center through the One Logistics Park property to a new full-movement, signalized intersection with Millwood Pike.  It is envisioned that One Logistics Park will provide jobs, tax base, and other related benefits as new business and economic activity continues to come to the Winchester Regional Airport area of Frederick County.

Regrettably, the approval of One Logistics Park was not without citizen opposition and, following approval of the rezoning, an adjacent neighbor filed a lawsuit against the applicant of the One Logistics Park rezoning, the Frederick County Board of Supervisors, and the owners of the land that were a part of the application, challenging the rezoning approval. Walsh Colucci’s land use litigation team, led by John Foote and Matt Westover, employed a strategy involving the filing of a “Motion Craving Oyer,” which was granted by the Frederick County Circuit Court and resulted in the entire rezoning application record coming into the body of evidence before the court.  Based on this body of evidence, which included the staff report, proffers, and related explanations of the sizeable project benefits, the court granted the defendants’ respective Demurrers and dismissed the Complaint without granting the Plaintiff opportunity to amend its pleadings.  Through their quick and decisive work, John and Matt were able to secure dismissal of this challenge within three months following the filing of the initial complaint.

One Logistics Park will now move forward to the site plan process and building of the proffered road improvements to serve the project and Frederick County.