On February 3, 2021, the Fairfax County Board of Zoning Appeals (BZA) approved its first variance request in accordance with the recently adopted American with Disabilities Act (ADA) legislation of the Virginia State Code. Relying upon Virginia State Code section 15.2-2309.2, which allows for variance applications on behalf of individuals with a disability, land use attorney, Kathryn R. Taylor, received a unanimous vote of approval from the BZA to allow a nonconforming recreational sports court to remain in its current condition and location.

In this case, the homeowners built a basketball court in the backyard of their home for the private use and enjoyment of their family. The basketball court is for their 8-year old son who suffers from a tri-diagnosis of Down syndrome, autism spectrum disorder, and apraxia. By providing this safe outdoor environment, their son is able to engage in requisite therapy and participate in appropriate recreational and developmental activities. However, unbeknownst to the family, when the basketball court along with its mesh netting enclosure were installed, they were too close to the rear lot line, thereby creating compliance issues with the County’s Zoning Ordinance. When it became clear that relocating the entire sport court area was not feasible, the homeowners, with the assistance of Ms. Taylor, sought a variance from the BZA as the most appropriate remedial action.

In 2018, the Virginia General Assembly adopted an amendment to Section 15.2-2309.2 of the Code of Virginia that expressly gives a board of zoning appeals the authority to grant a variance to “alleviate a hardship by granting a reasonable modification to a property or improvements thereon requested by, or on behalf of, a person with a disability.” Under this provision, Ms. Taylor argued that the son’s disabilities created a need for a reasonable modification to the rear yard setback requirements. A modification would permit the basketball court and its mesh netting enclosure to remain in its existing location, which would alleviate a hardship caused by a strict application of the Zoning Ordinance requirements. In the end, the BZA agreed and unanimously approved the variance request.

This was the first variance application reviewed by the Fairfax County Department of Planning and Development and subsequently heard and approved by the BZA in accordance with the newly adopted ADA statute.

The Board of Supervisors adopted modifications to its Workforce Dwelling Unit (WDU) Administrative Policy Guidelines at its hearing held on February 23, 2021. The decision marked the conclusion of over a year of evaluation. A Board-appointed Task Force began reviewing the adopted WDU Administrative Policy Guidelines in 2019 with the goal of addressing the need for affordable housing in Fairfax County. It was clear that the qualifying WDU income tiers of 100% and 120% of the Area Median Income, or AMI, were not addressing workforce housing goals and objectives. The Task Force faced the challenge of trying to address the issue of affordability without placing an unreasonable financial burden on the multi-family residential development community. The Task Force recommendation did not come to the Board with a unanimous vote as representatives of the development community continued to have concerns regarding the financial impact of the proposal.

With adoption of the Task Force recommendation, the Board revised text in the area plans, and most importantly modified the recommended WDU percentages and income tiers for proposed residential developments. The adopted WDU Administrative Policy Guidelines are applicable to rental projects only. Countywide modifications include a reduction in the rental WDU commitment level from 12% to 8% of the total number of proposed dwelling units, and a reduction in the maximum household income tier from 120% to 80% of the AMI. For rental developments in Tysons, the WDU commitment level is reduced from 20% to 13% with a maximum household income tier of 80% of the AMI. The prior WDU Guidelines are compared to the adopted WDU Guidelines in the chart below.

The multi-family residential community asked the Board to include a follow-on motion to direct staff to explore different measures associated with generating WDU production that could help balance and mitigate the cost of providing WDUs Countywide. While the Planning Commission recommended such a motion, the Board elected not to do so. The Board did recommend re-visiting the adopted WDU Administrative Policy Guidelines in five years. The multi-family development community continues to believe that there may be financial challenges as the new WDU recommendations are added to other typical proffers.

Fairfax County intends to review and evaluate the WDU Administrative Policy Guidelines for for-sale developments in the coming months.

Please contact Lynne Strobel with questions regarding the provision of WDUs in Fairfax County.

The Washington Business Journal recently published an article discussing the next phase of The Boro development in Tysons. Akridge, one of the region’s biggest developers, will be joining the project as one of its partners.

[EXCERPT]

More residential development, and a new partner, coming to The Boro in Tysons

“Plans for the next phase of the The Boro development in Tysons are coming together, complete with new condos, apartments and a senior living facility — and one of the region’s biggest developers is getting in on the action.” Read more

While many Virginia businesses have remained open since the pandemic was declared, others have been restricted from operating due to Virginia’s various Executive Orders. As of June 12, 2020, many restrictions are being eased as Northern Virginia and other regions finally enter into Phase 2 of Virginia’s reopening plan.

The Occupational Safety and Health Administration (OSHA) requires that employers provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In the context of COVID-19, OSHA is advising employers to follow guidelines from the Centers for Disease Control and Prevention (CDC) by taking temperatures, providing personal protective equipment, adding barriers, social distancing, sanitizing surfaces, etc.

In the face of reopening your business multiple issues including formulating return to work plans, which may include a number of best practices per current guidance, as well as concerns regarding potential employer liability for a worker contracting the coronavirus, the illness caused by COVID-19, may need to be addressed.

While operating risks can never be eliminated, businesses can minimize their risks by following CDC guidance, and they can help employees feel comfortable by clearly and consistently communicating about the safety measures they are implementing, how the measures help, and what workers should do if they have questions or concerns.

We have helped several of our commercial clients develop reopening protocols and strategies. If you need help with your business reopening plan or related issues in connection with a reopening, please contact attorney Wendy Alexander for assistance at (703) 680-4664.

On March 11, 2020, the Loudoun County Board of Supervisors approved Elm Street Communities’ plans for a 250-unit new urbanist community on a portion of the historic 192-acre Cattail Run Farm, which lies east of the Town of Leesburg.

The farm, which has served as a home for five generations of the Harris Family, has been increasingly surrounded by suburban development in recent decades. Despite this new growth, the farm remains a place of great environmental sensitivity and rich pastoral beauty. It also endures as a place of history, and includes the Cattail Ordinary (believed to be one of Loudoun County’s oldest structures) as well as remnants of a Civil War-era entrenchment.

Recognizing the inevitable march of change which has arrived at the farm’s doorsteps, the Harris Family spent more than six years developing a three-point plan to protect the family’s interests, as well as preserve the farm’s historic and environmental aspects.

The family’s plan includes the donation of 11.5 acres to provide a permanent home for St. Gabriel’s Episcopal Church, which is a diverse bilingual church that began as an outgrowth of the historic St. James Episcopal Church in downtown Leesburg. The family’s plan also includes the placement of 86 acres of the farm’s most historically and environmentally significant areas under conservation easement. This area will also be donated to the Northern Virginia Regional Park Authority for use as a passive public recreation park. The future park will be contiguous to other public parkland and, eventually, will provide a connection to the Potomac National Heritage Scenic Trail and Balls Bluff Battlefield Regional Park.

Finally, the family’s plan envisions that the balance of the farm – comprising approximately 96 acres – will be developed as a low-intensity, environmentally-sensitive residential community laid out according to “new urbanist” principles. A revival of the lost art of placemaking, new urbanism is a land planning approach premised upon the manner by which villages and cities have been designed for the last several centuries. These principles include walkable blocks and streets, human-scale design, grid street patterns, and accessible public spaces.

To implement its vision for the future neighborhood, the Harris Family worked with Elm Street Communities, new urbanist architect/planner Michael Watkins Architects, and the Dewberry, Ltd engineering firm. Together, the team crafted a plan for a 250-unit neighborhood that is conceived as one larger “village” with three smaller “neighborhoods,” which will feature both single family homes and townhomes.

The team drew inspiration from the vernacular architecture and layouts of some of Loudoun County’s most historic towns, including Waterford, Middleburg, and Leesburg. As a result, the design offers a series of inter-connected blocks with streetscapes that are green, tree-lined, and spacious, along with planning principles that seek to reduce the visible presence of automobiles wherever possible. An emphasis was placed on building design and architecture, and how the location of homes would help foster social interaction amongst residents.

A variety of inviting public green spaces will be provided, including 34,000 square feet of active recreation space, 25,000 square feet of pocket parks, and 25.5 acres of open space. These outdoor areas are intended to provide natural corridors for trails and walkways, and are in addition to the future public parkland to the north.

To respect the farm’s topography, cultural settings, and natural environment, the design preserves the farm’s environmentally-sensitive areas. Homes will be sited away from Edwards Ferry Road in an attempt to preserve the historic roadway’s rural ambience and existing farm structures.

To fully implement the project’s new urbanist design elements, as well as to provide a more compact walkable community, a series of zoning ordinance modifications were requested related to setbacks and yard requirements. Recognizing the need for affordable housing as well as its importance in a new urbanist setting, 15 percent of the units will be offered as affordable dwelling units or affordable market purchase units.

The result is an exciting project which will deliver a unique new community with substantial park amenities, and help fulfill Loudoun County’s vision for responsible and quality growth.

Walsh Colucci Shareholder Andrew Painter represented Elm Street Communities during the zoning process.

More information on the community may be found here: cattailrunleesburg.com