For years the issue of broadband internet access has been a concern for many in western Loudoun. The onset of the COVID-19 pandemic has only heightened the urgency to address these concerns as working and learning from home have become the new normal. The pandemic will eventually subside but the demand for high-speed internet shows no signs of abating.

Delivering broadband internet to a majority of Loudoun’s residents, particularly in the east, has been achieved through conventional methods of hardwire in-ground cables. This conventional method is dependent on infrastructure and a density of consumers that is unachievable, and for many, undesirable in rural communities such as western Loudoun. The need for both high-speed internet, as well as improved wireless coverage is not just a matter of being able to watch Netflix either, there are many areas of Loudoun where its public safety network has coverage issues.

Perhaps no other company is better positioned to address the need for improved wireless coverage and broadband internet while protecting western Loudoun’s valuable view sheds, historic byways and towns, than Invisible Towers. Invisible Towers is a subsidiary of InSite Wireless Group, one of the largest privately owned tower and wireless infrastructure companies in the nation. As its name suggests, Invisible Towers develops communications towers that blend into their surrounding environments such as the Lowes Island Clock Tower in Sterling, Virginia. Using unique product installations that adapt to the surrounding environments they are able to protect view sheds and visual aesthetics while providing safe and reliable service.

At the May 2020 Loudoun County Board of Supervisors Public Hearing the Board unanimously approved a commission permit and special exception to allow Invisible Towers to construct a 195-foot monopole on the Karmen Farm property along Lovettsville Road. The monopole tower will serve Proposed Communications Tower Development Area 1 (“PCTDA 1”), one of seventeen such areas designated for development by the Board back in 2012. As one of the conditions of approval for the special exception, the project will utilize the natural rust colored corten steel to blend into its natural environment.

The provision of reliable wireless telecommunication and broadband service is critical infrastructure for the development and support of rural economy uses, home-based businesses, and the daily activities of residents in western Loudoun. Once completed, the tower will accommodate a broadband service provider as well as space for up to four wireless carriers, providing service to portions of north-western Loudoun including the rural historic village of Taylorstown.

Loudoun office land use coordinator Matt Leslie played a key role in guiding Invisible Towers throughout the applications process, including participating in one of the County’s first public meetings held remotely.

For further questions or assistance on land use matters please contact land use coordinator Matt Leslie at mleslie@thelandlawyers.com or 703-737-3633.

In its 2019 Session, the General Assembly amended the Virginia Limited Liability Company Act to permit the registration of “Series Limited Liability Companies” beginning on July 1, 2020.  A Series Limited Liability Company can separate and keep distinct the assets and liabilities of one of its arms of operation from a separate arm by designating each a “Protected Series.” A common example used to explain the nature of a Series LLC is that of the Landlord who owns and leases multiple units. Beginning in July, that Landlord can register each rental unit (or however many assets it chooses) as a “Protected Series” within the umbrella of the primary Series Limited Liability Company. The Series LLC landlord can designate a shopping center in Alexandria as “Protected Series A”, an office building in Richmond as “Protected Series B”, a parking garage in Virginia Beach as “Protected Series C”, et cetera. Each will constitute a separate operational entity within the same master LLC.

The benefit of Protected Series designation is that the assets and liabilities of each Protected Series will be viewed as separate and distinct from the other, with each series having the same limited liability as though it were an entirely separate limited liability company. Each Protected Series can have its own different manager. Each Protected Series can even have separate membership interests (though all members of the series must be members of the governing Series LLC). Using our Landlord analogy, owners of a Series LLC who own multiple units in a shopping center can designate each a separate Protected Series, designate a separate manager for each Protected Series and have separate members with differing ownership interest in each unit, all governed by the same operating agreement. A lawsuit against one Protected Series would have no effect on the assets or liabilities of another within the same Series LLC. Each can sue and be sued in its own name and have the same powers and purpose of the overarching Series LLC. As an LLC, it is also treated as a distinct pass-through entity for Federal Tax purposes.

The drawback to Series Limited Liability Companies, and its Protected Series designations is that there is little reduction in paperwork. Each Protected Series must be separately registered with the State Corporation Commission. Each Protected Series must pay a separate registration fee. The protections provided to Protected Series are effective only if adequate records are maintained to distinguish how each Protected Series obtained its assets, which themselves must be sufficiently described. The Code also restricts the ability of a Protected Series from merging with a different entity or domesticating in a foreign jurisdiction, and from taking advantage of other functions available to other LLC’s. When considering that the asset protections provided by Protected Series designation can be (and have been) achieved by the use of single purpose LLC’s, it’s not always obvious the characteristics of those businesses that would be better served by utilizing Protected Series designation instead of setting up a new limited liability company that is wholly or partly owned by another LLC.

Protected Series LLC’s have been available (first in Delaware) in other jurisdictions for 20 years, but the number of jurisdictions that have enabling legislation for them remains the minority, and the enabling legislation that permits Protected Series designation in those jurisdictions is not uniform. There remain several questions regarding how other states and federal laws will treat the Virginia Series LLC. It is not even entirely clear how other aspects of Virginia law will apply. For example, does a professional license issued to a Series LLC apply to all Protected Series therein?

The attorneys at Walsh, Colucci, Lubeley & Walsh, P.C. will continue to review the rollout of Protected Series LLC documents and guidance from the State Corporation Commission and are available to assist you with questions that you have regarding this new form of business entity. For more information please contact Michael Kalish at mkalish@thelandlawyers.com or (703) 680-4664.

Each year at the close of the Virginia General Assembly session, our attorneys provide summaries of new legislation that might impact the local practice of law.

Real Estate Law Update

HB 99 Va. Fair Housing Law; status as a victim of family abuse, etc.

Landlord and tenant; victims of family abuse; evidence to mitigate low credit score; damages. Allows an applicant for a lease to recover actual damages, including all amounts paid to the landlord as an application fee, application deposit, or reimbursement for any of the landlord’s out-of-pocket expenses that were charged to the applicant, along with attorney fees, if the landlord does not consider evidence of the applicant’s status as a victim of family abuse to mitigate any adverse effect of the otherwise qualified applicant’s low credit score.

HB 174 Va. Residential Property Disclosure Act; required disclosures for buyer to beware, marine clays.

Virginia Residential Property Disclosure Act; required disclosures for buyer to beware; marine clays. Provides that the owner of residential property makes no representations with respect to whether the property is located on or near deposits of marine clays (marumsco soils). The bill also advises purchasers to exercise whatever due diligence is deemed necessary in accordance with terms and conditions as may be contained in the real estate purchase contract, including consulting public resources regarding local soil conditions and having the soil and structural conditions of the property analyzed by a qualified professional.

HB 175 Virginia Residential Property Disclosure Act; required disclosures, radon gas.

Virginia Residential Property Disclosure Act; disclosures for a buyer to beware; radon gas. Adds to the disclosure statement required to be furnished to the buyer by the owner of residential real property that the buyer beware and exercise necessary due diligence with respect to whether the property is located in a locality classified as Zone 1 or Zone 2 by the U.S. Environmental Protection Agency’s Map of Radon Zones.

HB 176 Property Owners’ Association Act and Virginia Condominium Act; contract disclosure statement.

Property Owners’ Association Act and Virginia Condominium Act; contract disclosure statement; extension of right of cancellation. Provides for a limited extension of the right of cancellation where such extension is provided for in a ratified real estate contract, defined in the bill. This bill is identical to SB 672.

HB 334 Manufactured home parks; sale of park to developer, relocation expenses.

Manufactured Home Lot Rental Act; relocation expenses. Provides that if the termination of a manufactured home park rental agreement is due to the sale of the manufactured home park to a buyer that is going to redevelop the park and change its use, the landlord shall provide certain relocation expenses to each manufactured home owner in the park within the 180-day notice period for the purpose of removing the manufactured home from the park.

HB 393 Landlord and tenant; statement of tenant rights and responsibilities.

Landlord and tenant; tenant rights and responsibilities. Requires the Director of the Department of Housing and Community Development to develop a statement of tenant rights and responsibilities explaining in plain language the rights and responsibilities of tenants under the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.) and maintain such statement on the Department’s website along with a form to be signed by the parties to a rental agreement. The bill requires that the statement be provided to any prospective tenant and that the form developed by the Department be signed by the parties to the rental agreement. The bill prohibits a landlord from filing or maintaining an action against a tenant in a court of law for any alleged lease violation until he has provided the tenant with the statement of tenant rights and responsibilities. This bill is identical to SB 707.

HB 518 Virginia Residential Property Disclosure Act; residential building energy analysis.

Virginia Residential Property Disclosure Act; disclosures for a buyer to beware; residential building energy analyst. Adds obtaining a residential building energy analysis to the disclosure statement furnished to the buyer by the owner of residential real property that the buyer beware and exercise necessary due diligence with respect to determining the condition of real property or any improvements thereon. This bill is a recommendation of the Virginia Housing Commission. The bill incorporates HB 574 and is identical to SB 628.

HB 519 Virginia Residential Landlord and Tenant Act; certain notices of termination.

Virginia Residential Landlord and Tenant Act; notice of termination to contain legal aid information. Provides that no notice of termination of tenancy served upon a tenant receiving tenant-based rental assistance through (i) the Housing Choice Voucher Program, 42 U.S.C. § 1437f(o), or (ii) any other federal, state, or local program by a private landlord is effective unless it contains on its first page, in type no smaller or less legible than that otherwise used in the body of the notice, the statewide legal aid telephone number and website address. This bill is identical to SB 115.

HB 594 Virginia Residential Landlord and Tenant Act; security deposits, timing of application.

Virginia Residential Landlord and Tenant Act; return of security deposit. Requires the landlord to return the tenant’s security deposit, minus any deductions or charges, within 45 days of the termination of the tenancy or the date the tenant vacates the dwelling unit, whichever occurs last. Under current law, the 45-day period to return the security deposit begins on the date of the termination of the tenancy. This bill is identical to SB 388.

HB 720 Property Owners’ Association Act; display of political signs.

Property Owners’ Association Act; notice on restrictions on display of political signs. Requires the association disclosure packet to contain a statement of any restrictions on the size, place, duration, and manner of placement or display of political signs by a lot owner on his lot.

HB 788 Restrictive covenants; deeds of reformation.

Restrictive covenants; certificate of release of certain prohibited covenants. Prohibits a deed containing a restrictive covenant from being recorded on or after July 1, 2020, and provides the form for a Certificate of Release of Certain Prohibited Covenants to be recorded to remove any such restrictive covenant.

HB 819 Real estate settlements; kickbacks and other payments, remedies, penalties.

Real estate settlements; kickbacks and other payments; remedies; civil penalties. Relocates from Chapter 9 (Real Estate Settlements) to Chapter 10 (Real Estate Settlement Agents) within Title 55.1 the existing provision that prohibits persons from paying or receiving a kickback, rebate, commission, thing of value, or other payment pursuant to an agreement to refer business incident to a settlement. This relocation authorizes the State Corporation Commission to impose penalties, issue injunctions, and require restitution in cases where a person who does not hold a license from the appropriate licensing authority has violated the provision. The measure also adds to Chapter 10 of Title 55.1 provisions that (i) authorize a court to assess civil penalties of not more than $5,000 per violation of the chapter and (ii) authorize the recovery of costs and reasonable expenses and attorney fees.

HB 831 Utility easements; location of broadband and other communications facilities.

Utility easements; location of broadband and other communications facilities. Declares that it is the policy of the Commonwealth that (i) easements for the location and use of electric and communications facilities may be used to provide or expand broadband or other communications services; (ii) the use of easements to provide or expand broadband or other communications services is in the public interest; (iii) the installation, replacement, or use of public utility conduit, including the costs of installation, replacement, or use of conduit of a sufficient size to accommodate the installation of infrastructure to provide or expand broadband or other communications services, is in the public interest; (iv) the use of easements to provide or expand broadband or other communications services (a) does not constitute a change in the physical use of the easement; (b) does not interfere with, impair, or take any vested or other rights of the owner or occupant of the servient estate; (c) does not place any additional burden on the servient estate other than a de minimis burden, if any; and (d) has value to the owner or occupant of the servient estate greater that any de minimum impact; and (v) the installation and operation of broadband or other communications services within easements, appurtenant or gross, are merely changes in the manner, purpose, or degree of the granted use as appropriate to accommodate a new technology. The measure further provides that (1) absent any express prohibition on the installation and operation of broadband or other communications services in an easement that is contained in a deed or other instrument by which the easement was granted, the installation and operation of broadband or other communications services within any easement shall be deemed, as a matter of law, to be a permitted use within the scope of every easement for the location and use of electric and communications facilities and (2) subject to compliance with any express prohibitions in a written easement, any incumbent utility or communications provider may use an easement to install, construct, provide, maintain, modify, lease, operate, repair, replace, or remove its communications equipment, system, or facilities, and provide communications services through the same, without such incumbent utility or communications provider paying additional compensation to the owner or occupant of the servient estate or to the incumbent utility, provided that no additional utility poles are installed. The measure provides that any incumbent utility or communications provider may use a prescriptive easement to install, construct, provide, maintain, modify, lease, operate, repair, replace, or remove its communications equipment, system, or facilities, and provide communications services through the same, without such incumbent utility or communications provider paying additional compensation to the owner or occupant of the servient estate or to the incumbent utility, provided that no additional utility poles are installed. This bill is identical to SB 794.

HB 838 Virginia Residential Property Disclosure Act; Real Estate Board’s disclosure statement.

Virginia Residential Property Disclosure Act; Real Estate Board; disclosure statement. Requires the residential property disclosure statement form developed by the Real Estate Board and maintained on its website to include a statement signed by the parties acknowledging that the purchaser has been advised of the disclosures listed on the residential property disclosure statement. Currently, such form only requires an acknowledgment that the purchaser has been advised to review the residential property disclosure statement.

HB 859 Stormwater management facilities; private residential lots, required disclosure.

Stormwater management facilities; private residential lots; disclosure. Directs the State Water Control Board to adopt regulations requiring the owner of residential property on which is located a privately owned stormwater management facility serving one or more residential properties to record the long-term maintenance and inspection requirements for such stormwater management facility with the deed for the owner’s property. The bill requires an owner of residential real property who has actual knowledge of a privately owned stormwater management facility located on the property to disclose to a purchaser of the property the long-term maintenance and inspection requirements of the facility.

HB 1161 Virginia Residential Property Disclosure Act; required disclosures, lead pipe.

Virginia Residential Property Disclosure Act; required disclosures for buyer to beware; lead pipes. Adds to the disclosure statement required to be furnished by the owner of residential real property to a buyer that the buyer beware and exercise necessary due diligence with respect to whether the property contains any pipe, pipe or plumbing fitting, fixture, solder, or flux that does not meet the federal Safe Drinking Water Act definition of “lead free.” The bill also requires any licensee who is engaged by a landlord and who has actual knowledge of the existence of any pipe, pipe or plumbing fitting, fixture, solder, or flux that does not meet the federal Safe Drinking Water Act definition of “lead free” to disclose such information to a prospective tenant.

HB 1249 Manufactured Home Lot Rental Act; manufactured home park, termination due to sale of park, notice.

Manufactured Home Lot Rental Act; manufactured home park; termination due to sale of park; notice. Provides that where the sale of a manufactured home park is due to a change in the use of all or any part of a manufactured home park by the landlord, including conversion to hotel, motel, or other commercial use, planned unit development, rehabilitation, or demolition, a 180-day written notice is required to terminate the rental agreement. The bill also requires a manufactured home park owner who offers or lists the park for sale to a third party to provide written notice to (i) the Department of Housing and Community Development, which shall make the information available on its website within five days of receipt, and (ii) each tenant of the manufactured home park at least 90 days prior to accepting an offer. The bill provides that tenants who have been evicted from a manufactured home park have 90 days after a judgment has been entered in which to rent the manufactured home to a subtenant, contingent on the subtenant’s making a rental application to the manufactured home park owner within such 90-day period and approval by the home park owner of such rental application from the subtenant. This bill incorporates HB 1163 and HB 1229.

HB 1333 Landlord and tenant; damage insurance shall conform to certain criteria.

Landlord and tenant; damage insurance in lieu of security deposit. Provides that a landlord may permit a tenant to provide damage insurance coverage meeting certain criteria in lieu of the payment of a security deposit. The bill also caps the total amount of any combination of security deposit and rental insurance coverage required by the landlord to twice the amount of the periodic rent payment and provides that a tenant who initially opts to provide damage insurance in lieu of a security deposit may, at any time without consent of the landlord, opt to pay the full security deposit to the landlord in lieu of maintaining a damage insurance policy.

HB 1340 Revision of Title 55; technical amendments relating to the revision and recodification.

Revision of Title 55. Makes technical amendments relating to the revision and recodification of Title 55 enacted in the 2019 Session. The bill also implements clarifying changes and other changes made in the revision and recodification. This bill is a recommendation of the Virginia Code Commission

HB 1342 Virginia Residential Property Disclosure Act; required disclosures, lead pipe.

Virginia Residential Property Disclosure Act; required disclosures for buyer to beware; lead pipe; defective drywall. Adds to the disclosure statement required to be furnished to the buyer by the owner of residential real property that the buyer beware and exercise necessary due diligence (i) with respect to whether the property contains any pipe, pipe or plumbing fitting, fixture, solder, or flux that does not meet the federal Safe Drinking Water Act definition of “lead free” and (ii) with respect to the existence of defective drywall on the property.

HB 1401 Landlord and tenant; remedy for unlawful ouster, ex parte issuance of order to recover possession.

Landlord and tenant; remedy for unlawful ouster; ex parte issuance of order to recover possession. Provides that, upon receipt of a petition for an order to recover possession or restore essential services alleging a tenant’s unlawful ouster from the rental premises and a finding that the petitioner has attempted to provide the landlord with actual notice of the hearing on the petition, the judge of the general district court may issue such order ex parte upon a finding of good cause to do so. The bill further provides that an ex parte order shall be a preliminary order that specifies a date for a full hearing on the merits of the petition, to be held within five days of the issuance of the ex parte order.

HB 1548 Common interest communities; termination of condominium, respective interests of unit owners

Common interest communities; Virginia Condominium Act; termination of condominium; respective interests of unit owners. Provides that the respective interests of condominium unit owners upon the termination of a condominium shall be as set forth in the termination agreement, unless the method of determining such respective interests is other than the relative fair market values, in which case the association shall provide each unit owner with a notice stating the result of that method for the unit owner’s unit and, no later than 30 days after transmission of that notice, any unit owner disputing the interest to be distributed to his unit may require that the association obtain an independent appraisal of the condominium units. The bill provides a method of adjusting the respective interests of the unit owners if the amount of such independent appraisal of an objecting unit owner’s unit is at least 10 percent more than the amount stated in the association’s notice.

HB 1569 Dams; disclosure statements.

Virginia Residential Property Disclosure Act; required disclosures for buyer to beware; impounding structures or dams. Directs the Real Estate Board to include in the residential property disclosure statement provided on its website a disclosure relating to the condition or regulatory status of any impounding structure or dam on the owner’s property or under the ownership of a common interest community that the owner of the property is required to join. This bill is identical to SB 343.

SB 233 Insurance agents; licensing and registration renewal

Insurance licensing and registration renewal. Makes changes related to renewal of insurance agents’ licensure and registration. In 2019, legislation was enacted that becomes effective January 1, 2021, to change the licensing and registration renewal cycles for agents, public adjusters, and others to a new cycle based on both month and year, with biennial renewal. The bill removes references in the current law to biennial renewal, removes a requirement in the law as it will become effective that limited lines agents renew their licenses before May 1, 2021, and adds a requirement in the law as it will become effective that certain settlement agents renew their registrations before May 1, 2021.

SB 630 Common interest communities; electric vehicle charging stations permitted.

Common interest communities; electric vehicle charging stations permitted. Prohibits certain common interest community associations from prohibiting the installation of an electric vehicle charging station within the boundaries of a member’s unit or limited common element parking space appurtenant to the unit owned by the unit owner or, in the case of a property owners’ association, a lot owner’s property, and sets forth provisions governing the installation and removal of such charging stations. The bill also requires the association member installing an electric vehicle charging station to indemnify and hold the association harmless from all liability resulting from a claim arising out of the installation, maintenance, operation, or use of such charging station.

SB 905 Landlord and tenant; tenant’s remedy by repair, clarifies definition of “actual costs.”

Landlord and tenant; tenant’s remedy by repair. Permits a tenant, under certain circumstances, to have a condition that constitutes a material noncompliance by the landlord with the rental agreement or with provisions of law, or that if not promptly corrected will constitute a fire hazard or serious threat to the life, health, or safety of occupants of the premises, remedied by a third-party licensed contractor or a licensed pesticide business. The bill provides that, unless the tenant has been reimbursed by the landlord, the tenant may deduct from rent the actual costs incurred, not to exceed the greater of one month’s rent or $1,500, after submitting to the landlord an itemized statement accompanied by receipts for purchased items and third-party contractor or pest control services.

SB 948 Real property by state agencies; conveyance and transfers.

Conveyance and transfers of real property by state agencies; Department of Military Affairs; lease of state military reservation property. Provides that, subject to general provisions governing the lease of property owned by the Commonwealth by state agencies, the Department of Military Affairs may convey a leasehold interest in any portion of State Military Reservation property to governmental or private entities when it is deemed to be in the Department’s best interest to (i) provide necessary services such as lodging, training capabilities, or logistical utility services that support the Department’s mission or (ii) maintain a peripheral buffer with compatible uses, including ground parking leases. The term of such lease may not exceed 50 years; however, any agreement may be extended upon the written recommendation of the Governor and the approval of the General Assembly. In the event that the Department enters into a written lease with a private individual, firm, corporation, or other entity, neither the real property that is the subject of the lease nor any improvements or personal property located on the real property that is the subject of the lease shall be subject to taxation by any local government authority, provided that the real property, improvements, or personal property is used for a purpose consistent with or supporting the Department’s mission.

SB 1094 Conservation and Recreation, Department of; authorized to divest itself of certain property.

Property conveyance; Department of Conservation and Recreation; New River Trail State Park. Authorizes the Department of Conservation and Recreation to convey certain property that was previously conveyed to it by Norfolk Southern Railroad for the New River Trail State Park.

HB 535 Real estate with delinquent taxes or liens; sales by nonprofit organizations.

Real estate with delinquent taxes or liens; sales by nonprofit organizations. Provides that a nonprofit organization that acquires real estate with delinquent taxes or liens pursuant to the appointment of a special commissioner may sell to eligible purchasers either (i) both the land and structural improvements on a property or (ii) only the structural improvements of a property, without the land. The bill provides that a sale of only the structural improvements is permissible only if (a) the improvements are subject to a long-term ground lease with a community land trust and (b) the community land trust retains a preemptive option to purchase such improvements at a price determined by a formula that ensures that the improvements remain affordable in perpetuity to low-income and moderate-income families.

HB 537 Real estate tax; exemption for property in redevelopment or conservation areas.

Real estate tax exemption for property in redevelopment or conservation areas or rehabilitation districts. Increases the maximum duration of a local real estate tax exemption for structures in redevelopment or conservation areas or rehabilitation districts from 15 to 30 years. This bill is identical to SB 727.

SB 649 Town taxes; collection by county.

Collection of town taxes by county. Authorizes the board of supervisors of any county that has adopted the urban county executive form of government to enter into agreements with towns located partially or wholly within such county for the collection and enforcement of real or personal property taxes by the county official responsible for assessment or collection of taxes. The authority granted to such counties is similar to authority granted to Loudoun County under existing law. This bill is identical to HB 1534.

SB 763 Local tax; amount of exemption for solar energy equipment.

Local tax exemption; solar energy equipment. Changes the local property tax exemption for solar energy projects from an 80 percent exemption for the life of the project to a step down scale of an 80 percent exemption in the first five years, 70 percent in the second five years, and 60 percent for all remaining years in service. The change applies to solar energy projects that are either (i) projects greater than 20 megawatts and less than 150 megawatts for which an initial interconnection request form has been filed with an electric utility or a regional transmission organization after January 1, 2015, and first in service on or after January 1, 2017, and (ii) projects equaling more than five megawatts and less than 150 megawatts for which an initial interconnection request form has been filed on or after January 1, 2019. The bill provides that if a locality assesses a revenue share on a project, the step down scale shall not apply. The bill extends the sunset date after which new projects may not qualify for the exemption from January 1, 2024, to July 1, 2030, and is identical to HB 1434.

On December 3, 2019, the Loudoun County Board of Supervisors approved The Peterson Companies’ Ashburn Station project, which consisted of a complex series of separate, but related, applications designed to deliver an exciting new 224-unit multifamily project near the future Ashburn Metrorail station.

Groundwork for the project steadily occurred over the past two years, with a major boost coming last June with Loudoun County’s adoption of its 2019 General Plan. The new comprehensive plan created a 2,600-acre “Urban Policy Area” focused around the county’s future Metrorail stations in which higher-density mixed-use transit-oriented development is now recommended. Delineation of this urban area signifies a paradigm shift for rapidly-developing Loudoun County and, understandably, this new policy area encompasses several underutilized properties, including open space parcels from decades-old by-right suburban subdivisions.

Such was the case with the 10-acre Ashburn Station site, which comprised the westernmost area of open space for The Regency, a 143-lot single family community created in 1996 under Loudoun’s “Countryside Residential” zoning district.

Pursuant to zoning requirements at the time of The Regency’s subdivision, approximately 62 acres of open space were provided throughout the community, all of which were placed under an open space easement to the benefit of the Loudoun County Board of Supervisors. The westernmost 10 acres of this open space—which would later comprise the Ashburn Station rezoning site—was visually and physically separated from the balance of The Regency by right-of-way for Ashburn Village Boulevard, which was dedicated concurrently with the initial subdivision.

Then, in 2003, the Board of Supervisors changed the manner by which Countryside Residential subdivision open space was to be calculated; namely, that land dedicated for public streets (including the right-of-way for Ashburn Village Boulevard) could henceforth be included in the gross subdivision acreage. Under this new methodology, The Regency was left with more than 12 acres of excess open space, the westernmost 10 acres of which is now included within the new Urban Policy Area and will soon sit in close proximity to Metrorail.

After several months of examining the potential for development in light of the new comprehensive plan, The Peterson Companies submitted requests with Loudoun County to transform the 10-acre open space site into a dense, urban, pedestrian-friendly residential community. Intended to serve as the northern gateway to the Ashburn Metrorail station area, Ashburn Station will address the need for for-sale, urban style housing in Loudoun County. By placing residents in proximity to Metrorail, the neighborhood will help drive Metrorail ridership and ensure the vitality of employment and retail uses closer to the station.

Though surrounded by conventional suburban residential communities, Ashburn Station will introduce a dense, pedestrian-friendly, walkable neighborhood near the station. Homes, for example, will adhere to design guidelines that call for contemporary and upscale design elements. A series of Zoning Ordinance modifications were also approved to help convert Ashburn Village Boulevard and Waxpool Road into a more urban typology, with homes set close to both roadways complemented by street trees and urban streetscape elements. A series of amenities and open spaces are also planned, with focal point landscaping provided to link the community to Ashburn Village Boulevard, while providing a sense of privacy for residents.

A key focus of the project was to complete several significant missing pedestrian links in the area. While the surrounding transportation network was largely constructed under prior suburban standards, the area lacks many of the pedestrian facilities and connections one might expect to find so close to a future Metrorail station. As a result, Peterson agreed to construct multiple pedestrian links, interparcel connections, crosswalks, and turn lanes. Bicycle infrastructure, a bus shelter, and a direct pedestrian connection to the future Metrorail station will also be provided.
From a housing affordability perspective, a range of housing types and sizes will be offered, including 11 Affordable Dwelling Units and three Affordable Market Purchase Program Units. In order to attract younger professionals and older “move-down” buyers, the project will introduce two “Missing Middle” housing types that do not yet exist in Loudoun’s Urban Policy Area—stacked townhomes and attached multifamily dwelling units.

Aside from the rezoning, four companion applications were required to help achieve the project’s vision. First, the Board of Supervisors passed an ordinance pursuant to Va. Code Ann. § 15.2-2272 to partially vacate the subdivision plats that created the Regency’s four open space parcels and remove the “open space” designation.

Second, to provide a more logical entry to the community, the Board authorized both the abandonment of a 0.77-acre portion of Ashburn Village Boulevard adjacent to the rezoning site, as well as its incorporation into the rezoning area. This right-of-way houses a stormwater management pond for the roadway which has not been maintained and was constructed under outdated environmental criteria. In exchange, Peterson agreed to install a new stormwater management pond to provide detention for both the roadbed and proposed community, as well as accept responsibility for its maintenance and design the pond to meet current stormwater regulations.

Third, to enhance the fiscal benefits of the project, the Board of Supervisors voted to include the 10-acre site within the County’s Metrorail Service District. Doing so is expected to help fund Loudoun County’s anticipated capital contribution for the Phase II Silver Line as the new neighborhood develops.

Finally, the Board approved the vacation and substitution of the existing open space easement on The Regency’s 12.35 acres of excess open space, which included the rezoning area. Despite the fact that this open space was no longer necessary to fulfill the Regency’s minimum subdivision open space requirements under the zoning ordinance, it nevertheless remained subject to the open space easement held by the Board. Any development on the Ashburn Station site would, therefore, require the Board’s abandonment and relocation of the open space easement.

Under Virginia’s Open Space Land Act at Va. Code Ann. § 10.1-1704, the vacation and substitution of an existing open space easement is a legislative action that requires approval by the easement holder—in this case, the Loudoun County Board of Supervisors. The Board may approve the action if certain minimum standards are met as set forth as set forth in the statute, which includes a requirement that any substituted eased land be provided on property that is of greater value as permanent open space land than the eased land being vacated.

Following intense negotiations with Loudoun County staff and members of the Board of Supervisors, the Board agreed to vacate the open space area in exchange for Peterson providing a 56.31-acre fee simple dedication of parkland to the County, alongside a separate 15-acre open space easement at Commonwealth Center, located along Loudoun County Parkway. This park site is more than five times the size of the Ashburn Station rezoning area and, when combined with the adjacent 163-acre park dedication area in Kincora, will ultimately form a part of a major stream valley park along Broad Run.

Unlike the 10-acre Ashburn Station site (which is privately owned and enjoys no public access), the new park site will be fully accessible to all Loudoun County residents, and will include a gravel parking lot, an athletic field, and a pedestrian bridge. As a part of the rezoning application, Peterson also agreed to dedicate funds towards a major pedestrian bridge across Broad Run. Such amenities will help satisfy many of Loudoun’s identified park and capital needs, and the park site will protect potential wetlands and areas draining directly into Broad Run.

Each aspect of the Ashburn Station project required separate hearings and actions by the Board, substantial negotiation, individual project planners and review cycles, and, in some cases, the drafting and execution of independent written agreements governing the commitments to be made by the County and Peterson. The timing and sequencing of events also proved critical, as Peterson worked with senior Loudoun County administrative staff and the County Attorney to generate a timeline that provided predictability for all parties.

The result is an exciting project that will deliver a new neighborhood and substantial park amenities, and help fulfil the County’s vision for high-quality mixed-use development around the future Ashburn Metrorail station. It serves as a good example of a public-private partnership that seeks to merge the interest of public needs with private sector innovation in a way works to benefit Loudoun County and its residents. Lastly, and of equal importance, it demonstrates that these actions, with strong leadership, can be processed in an efficient manner; in the case of Ashburn Station, all aspects of the project were submitted, processed, and acted upon by the Board within a one-year timeframe.

Walsh Colucci shareholder Andrew Painter served as zoning counsel in the case, and Kimley-Horn served as the civil engineers.