Maggie K. Paterson joins the firm as a summer intern. She is currently a college student at the University of Vermont (UVM), College of Agriculture and Life Sciences, where she is majoring in Public Communications and minoring in Art and Statistics. She volunteers at UVM FeelGood, a student-run non-profit deli, where donations/proceeds go towards the goal of ending world hunger. She graduated from Bethesda-Chevy Chase High School in 2021 where she played varsity lacrosse for four years. Welcome, Maggie!

We are thrilled to announce the Virginia Super Lawyers and Rising Stars for 2023! These outstanding attorneys have been recognized for their exceptional skills, experience, and achievements in their respective practice areas. Their dedication and excellence sets the bar high for the legal profession. We applaud their hard work and congratulate them on this well-deserved honor.

Arlington County’s Department of Community Planning, Housing and Development (CPHD) is undertaking a major effort to modernize the County’s Administrative Regulation 4.1 Site Plan document—the first such revision in four years.

The initiative is intended to reformat the document for usability and readability, and reflect recent changes in County policy (e.g., the 2020 Green Building Incentive Policy) and new submission and review procedures (e.g., Permit Arlington, E-Plan Review, and the new Site Plan Review Committee process).

Graphics will be incorporated to better explain the review process, and many of the standalone submission documents, forms, and letters will be consolidated.

An emphasis will also be placed upon providing clearer lists of minimum submission requirements, including revisions to the TIA/MMTA scoping matrix. For those site plan projects seeking to utilize the Green Building Incentive Policy, new requirements for preliminary sustainability information will be inserted.

Given the growing emphasis on biophilic design, the revised document will require applications to prepare a narrative describing each project’s biophilic, open space, and landscape design elements. The narrative, while deemed preliminary, is intended to provide a baseline for SPRC and discussion and staff review.

Staff is currently working on the first draft and, following review by the County Attorney’s Office, it will be forwarded to the County Manager for review and approval (anticipated this summer).  Walsh Colucci will closely monitor this revision effort and will provide updates and draft documents as they become available.

 

On December 17, 2022, the Arlington County Board approved the redevelopment of the Ballston Macy’s department store in the Ballston neighborhood.

The Macy’s, formerly a Hecht’s department store, was originally constructed as the main anchor of the Parkington Shopping Center, which opened in 1951 as Northern Virginia’s first major suburban shopping center. At the time it opened, the five-story, 300,000-square-foot store was the largest suburban department store on the East Coast.

Following the opening of the Ballston Metrorail station in 1979, Ballston was transformed into a mixed-use community with multifamily residential uses, offices, and restaurants. Parkington was repositioned as Ballston Common Mall in the early 1980s, and reopened as Ballston Quarter in 2019.

As approved, the Macy’s will be replaced with a 16-story mixed-use LEED Gold building containing a 44,000-square foot grocery store and 1,900 square feet of retail space on the ground floor, along with 553 residential units. The request necessitated a series of applications, including an Administrative Regulation 4.1 Site Plan Amendment, a Neighborhoods Form Based Code Amendment and Use Permit, the Certification of Transferable Density, and an ordinance of encroachment.

The approved building is intended to fulfill the Ballston Sector Plan’s goals and create an inviting and interconnected experience between the Ballston Quarter mall and nearby development. The building’s modern architecture provides softened edges and corners, and offers an inviting, connected, and greening space for those traveling in and around the property. A series of landscaped amenity terraces will be provided that will feature native and adapted pollinator-friendly planting species and bioretention plantings that will promote year-round biodiversity.

A ground floor interior connection will be provided between the grocery store and Ballston Quarter mall, which will create a gathering space at the mall’s western end. Insight has also committed to commissioning an art piece in the mall above the grocery store connection to serve as a complementary visual element to the Ballston Chandelier at the east end of Ballston Quarter.

The alley which runs through the block will be substantially enhanced into a more attractive experience while still serving as the primary vehicle and loading access for the new building. Existing arcades at both ends of the alley will be removed, and the alley will be reconfigured into a curbless environment punctuated by bollards, planters, green wall plantings, and seating areas.

Insight was also challenged to enhance pedestrian safety and provide visual and spatial connections between the project site and neighborhoods on the south side of N. Glebe Road. Accordingly, the project will activate the corner of N. Glebe Road and 7^th Street N. by introducing new retail space and an articulated residential lobby entrance, as well as eliminating an existing layby lane.

From a transportation perspective, the project will provide generous sidewalks with shade opportunities, intersection safety improvements, and signal modifications. A new left-turn signal into the site on N. Glebe Road will provide access for grocery store patrons and will be accompanied by a series of pedestrian safety enhancements.

An emphasis was also placed upon utilizing existing infrastructure to help disperse traffic and mitigate some of the impacts of new construction on carbon emissions. This includes making use of nearby existing loading docks, service corridors, parking entrances, and ramp systems, as well as utilizing the County-owned Ballston garage for employee and overflow parking.

Housing affordability figured prominently into the project, which includes preservation of 118 market-rate affordable units at the Haven Apartments near Columbia Pike. The Haven Apartments were constructed as garden apartments in 1949 and are listed as “Notable” on the County’s Historic Resources Inventory. In exchange for transferring density from the Haven site to the Ballston Macy’s site through the County’s Transfer of Development Rights process, Insight agreed to commit the Haven’s units as Committed Affordable Units, record a historic easement to preserve the Haven’s architectural integrity, and make a series of sustainability and maintenance investments at the Haven site.

To address issues related to onsite affordability from an equity perspective in Ballston, Insight committed to a two-bedroom Committed Affordable Unit in the building, as well as 11 workforce housing units at 80 percent AMI.

The project will deliver a new retail anchor and housing adjacent to Ballston Quarter as well as fulfill the Ballston Sector Plan’s recommendations related to land uses, housing, streetscape, sidewalks, and providing commercial uses along major streets.

Walsh Colucci’s Andrew Painter and Lauren Riley represented Insight during this process.

 

The Fairfax County Board of Supervisors will consider several amendments to the Comprehensive Plan and Zoning Ordinance this year. Three updates in particular, currently under consideration, are likely to affect development proposals in Fairfax County.

Affordable Housing Preservation Amendment

Affordable Housing is a critical goal of Fairfax County, and the County now looks to formally add new guidance to the Comprehensive Plan that underscores the importance of this goal. Draft text for the amendment, available here, seeks one-for-one replacement of existing affordable units on qualifying sites, with an overarching goal of “no net loss” in affordable housing rental units.

The amendment defines two forms of affordable units: Committed Affordable Units and Market Affordable Units. Committed Affordable Units are bound by agreements or other means to remain accessible to households with an income at 60% of the Area Median Income (AMI) for a minimum of 30 years. Market Affordable Units are not bound to serve any particular income level, but are accessible to households with an income at 60% of the AMI due to market forces. The County’s goal of “no net loss” includes both Committed Affordable Units and Market Affordable Units.

As written, the amendment calls for sites with four or more affordable units to be evaluated for the feasibility of one-for-one replacement at the time of redevelopment. Additional density may be considered for proposals that commit to long-term affordability, and additional height may be considered if it is necessary to meet the one-for-one replacement goal. Proposed redevelopment should also include a Relocation Assistance Plan, prepared by the developer. Additional guidance will be provided in the forthcoming Affordable Housing Preservation Administrative Policy Guidelines.

During the public hearing with the Planning Commission, staff acknowledged that one-for-one replacement may not be appropriate or feasible for all sites. All redevelopment remains subject to Zoning Ordinance requirements, and must be compatible with the surrounding area.

The Affordable Housing Preservation Amendment is scheduled to go before the Board of Supervisors on March 21, 2023.

Parking Reimagined

Over the past year, Fairfax County staff reviewed the requirements found in Article 6 of the Zoning Ordinance, which regulates off-street parking and loading. This review, termed the Parking Reimagined study, has resulted in a proposed comprehensive rewrite of Article 6.

Parking Reimagined provides a series of amendments to update the Zoning Ordinance. The recommended amendments resulting from Parking Reimagined are far-reaching and will affect nearly every proposal with required parking. These amendments include a revised chart of parking requirements for many uses, increased discretion for the Director of Planning and Development to reduce parking requirements, and revised bicycle parking requirements.

The amendments include a provision that zoning applications accepted for staff review prior to the effective date of any adopted amendments will proceed under the current provisions of the Zoning Ordinance, although applicants may opt into the new regulations.

In November 2022, County staff presented a draft proposal of these amendments to the Board of Supervisors’ Land Use Policy Committee. Staff continues to refine the proposed recommendations, and an updated white paper, available here, was published in early February 2023.

Parking Reimagined is tentatively scheduled to proceed to public hearings in the spring and summer of 2023.

Landscaping & Screening Zoning Ordinance Amendment

Landscaping and screening are a point of discussion with any development or redevelopment project. Fairfax County is currently conducting public outreach regarding possible amendments to the landscaping and screening provisions of the Zoning Ordinance.

Some possible changes include an increase in the percentage of parking lot landscaping, revising the barrier requirement, and modifying the width and planting requirements of transitional screening. Draft text is not yet available for potential changes to the existing regulations.

The Landscaping and Screening Zoning Ordinance Amendment is tentatively scheduled to proceed to public hearings in the summer of 2023.

We will continue to monitor the progress of the coming changes to Fairfax County’s zoning regulations. If you have questions as to how Fairfax County’s zoning updates may impact your development project, please contact Lynne Strobel at lstrobel@thelandlawyers.com.

Greystar’s Innovation Multifamily project represents a paradigm shift in urban development in Loudoun County. The 415-unit multifamily building is located on less than five acres in a surprisingly untouched area of the county. For years, the area along Rock Hill Road and Innovation Avenue has been overlooked. The lack of infrastructure and access has hindered development options. With the recent arrival of Phase 2 of Metro’s Silver Line, this area is now coming to life.

In 2019, the county adopted a new comprehensive plan that for the first time in its history included an Urban Policy Area. This policy area calls for the highest building density in the county in close proximity to Metro stations. Despite the relatively untouched nature of the surrounding area, the Innovation Multifamily project is located entirely within a half-mile radius of the Innovation Center Metro Station. This proximity lends itself to a dense project that can help fulfill the goals and policies of the comprehensive plan.

The myriad features and commitments included with the Innovation Multifamily project set the standard for high-quality transit-oriented development in Loudoun County. Here are some of the features of the project:

• 10% ADUs (30%-50% AMI)
• 6 Live/Work Units
• Davis Drive Reservation and Dedication (126-foot right-of-way)
• 2-acre Neighborhood Park (Inclusive of a ½ acre Tree Conservation Area)
• Linear Park along Innovation Avenue
• NGBS Certification – Silver Level
• Bicycle Room (can accommodate 200 bicycles)
• Electric Vehicle Charging Stations (accommodates 16 spaces)
• Transportation Demand Management Program
• Innovation Avenue Crosswalks
• Bus Shelter
• Internal Amenities: Courtyards, Pool, Fitness Center, Co-working Space, Coffee and Snacks Refreshment Area, and Micro Market
• Capital Facility and Transportation Contributions

Despite all of the positive features and commitments included as part of the project, the rezoning application faced stiff resistance from county staff. Greystar, Walsh Colucci, and the development team that included Dewberry, Wells + Associates, HCM, and WSSI continually worked with county staff and the planning commission to improve the project throughout the review process. The Board of Supervisors understood and appreciated the application’s numerous benefits and voted to approve the application on November 15, 2022. This approval signals that well-thought-out urban development is appropriate in the right locations in Loudoun County. This project sets a new standard for which Loudoun County can be proud of and embrace as it embarks on a new chapter in its development.

 

 

While most urban and suburban properties have direct access to a public right of way, some properties, particularly those in more rural areas, get their access to the public streets by way of an easement across a property that someone else owns.  Unlike public streets, easements are privately maintained.  Sometimes, an issue arises as to who is responsible for that maintenance.

Under common law, the owner of a property that gets its access by way of the easement has a duty to maintain the easement, but need only maintain the easement to the degree that the owner deems necessary for access to their own property.  This works very well when there is a single property using the easement.  The difficulty comes when more than one property uses the easement.

When more than one property uses the easement, the property owners should apportion the cost of repairs and maintenance relative to their use of the easement.  Unfortunately, the Virginia courts have not squarely addressed the issue of how the costs of maintenance should be apportioned if the parties cannot come to an agreement as to who should pay for what.  For example, it is not clear whether the owner of the servient estate (the property that the easement crosses) in a shared easement may make improvements to the easement and demand repayment from the owner of the dominant estate (the property that accesses by way of the easement).

The general rule is not the same when the dominant estate owner is the sole user of the easement as when the easement is used in common with other dominant estates or with the servient estate.  In this situation, courts have held that the users of a common easement should apportion the cost of repairs and maintenance among themselves relative to their use of the road, but have not given much guidance beyond that.  Often there is an issue as to what constitutes maintenance or repair, as opposed to improvements. In addition, some owners may use the easement in a manner that causes more damage than other users.

Of course, the best solution to the problem is to have a well-written agreement among the parties that clearly delineates maintenance responsibilities, sets out a clear procedure as to when and how the easement will be maintained, and a procedure to resolve disputes.  There is no adequate “cookie-cutter” or form document that can accomplish this because every situation is different.  In addition, any maintenance agreement should have the appropriate language to be binding on successors in title and should be recorded among the county land records so that it is binding on future purchasers of the properties.

For more information about shared easement maintenance or related matters, please contact John Rinaldi.

 

Image Source: Public Domain

Each month we spotlight our talented colleagues and learn a little more about their professional journey and how they make our firm special. This month we are spotlighting Garth Wainman as well as celebrating his most recent and well-deserved award, being voted Lawyer of the Year in the Washington, DC metropolitan region for Real Estate Litigation. Each year practicing lawyers in the U.S. are selected by their peers for inclusion in the edition of The Best Lawyers in America®. The Best Lawyers in America® “Lawyer of the Year” designation is awarded to only one lawyer in the DC Metro area with the highest average of votes in their particular practice and region. Without a doubt, this is indicative of Garth’s stellar reputation and impeccable work ethic in the legal field.

Garth’s roots as a lawyer have always been in real estate and commercial litigation since joining the Hazel, Beckhorn, and Hanes firm in the 1980s. That firm merged and became Hazel and Thomas and became a leader in Northern Virginia’s commercial litigation in both Virginia and federal courts.

Garth joined Walsh Colucci and Lubeley with long-time friend and partner John Foote in 1999 and brought their respective litigation and land use experience to the firm. Upon joining the firm, Garth chaired the Litigation group and helped build it into a strong and collaborative team of litigators that support the firm’s long list of established developers, builders, and contractors. While being recognized by Best Lawyers for many years as a top lawyer in both real estate matters and commercial litigation—in 2023 Garth was recognized as the top lawyer in the Washington Metro area in Commercial Real Estate Litigation. He believes this honor is a testament to being surrounded by talented and hard-working lawyers that pride themselves on staying current on all things real estate and business law and once a case heads to trial– simply out-strategizing and outworking our opponents.

If asked what makes a great litigator, Garth would say it starts with asking your client the hard questions up front and then giving them the unvarnished truth about the strength of their claims and defenses. Lawyers get their clients in trouble when they do not give them an honest up-front assessment of the weaknesses in the client’s case and the costs associated with settlement versus trial. Our litigation group firm has a very successful track record of defending our builder/developer clients against overly inflated multi-million dollar damage claims. In recent multi-million dollar suits in both state and federal courts, our litigation team has gotten either complete defense verdicts or minimal damage awards that were below what our client’s offered in settlement prior to litigation.

Garth constantly reminds his litigation group that being in a courtroom is the “last” place our business clients want to be so he stresses exhausting all creative settlement efforts to find common ground but if the other side leaves you no choice—make them regret it.