Tag: Real Estate Transactions

Arlington County Zoning Update

Posted on by Admin

Realize Rosslyn Underway

In December 2012, Arlington County kicked off the review and update of the Rosslyn Sector Plan with a community visioning workshop. A long range vision for Rosslyn was first created in 1977 with the adoption of the Rosslyn Transit Station Area Study. Subsequently, in 1992, the Rosslyn Station Area Plan Addendum put forth a vision of a Arlington’s downtown, urban center. With significant development since 1992 and anticipated development on the horizon, the current process will update the 1992 Addendum and provide solutions to some of the present challenges in Rosslyn. The update process, referred to as “Realize Rosslyn,” will be a highly public process that will engage and encourage participation from a wide group of stakeholders, but also draw on the professional services of several planning and traffic consultants. The community process will focus on four key planning areas:

  • Creating an enhanced urban design framework;
  • Refining, and improving transportation options;
  • Recommending a building heights strategy;
  • Developing a more cohesive, functional parks and open space network.

To continue the discussion, Arlington County has scheduled a two-part community workshop series for March 13, 2013 (7:00 pm at the Artisphere) and March 14, 2013 (6:30 p.m. at the Artisphere). Additional information on the planning efforts can be found by clicking here.

Fairlington and Shirlington

On Monday, March 4th, Arlington’s Planning Commission revised a draft update to the Fairlington-Shirlington Neighborhood Conservation Plan, which was last updated in 1987. The draft Plan addresses citizen concerns and visions for future redevelopment in the Fairlington and Shirlington communities. The draft can be viewed online by clicking here.

Zoning Ordinance Rewrite

Following the County Board’s adoption of the new Sign Ordinance in July 2012, Comprehensive Planning staff forged ahead with the second phase of the County’s effort to update the Zoning Ordinance. Initiated in December 2010, Arlington County is in the process of comprehensively revising and transforming the Zoning Ordinance (most recently comprehensive reviewed in 1950) into a more user-friendly document. The second phase will be completed in two parts: A and B. Part A is currently underway and will include a reorganization and removal of the pyramid structure of the Zoning Ordinance. According to staff, these changes will include:

  • Creating individual use lists for each zoning district, which will remove the references to uses permitted in a previous district.
  • Incorporating graphics and tables to illustrate and summarize important regulations, such as minimum lot size, height and density.
  • Embedding links to make the Zoning Ordinance more web-friendly.

Staff anticipates that the reorganized Zoning Ordinance will be presented to the County Board in May 2013. Upon completion of Part A, Part B will undertake minor policy changes to the Zoning Ordinance. Part B will revise definitions and inconsistencies, incorporate administrative practices and Zoning Administrator determinations and resolve any conflicts presented by the reorganization of Part A. As is typical for Zoning Ordinance changes, the Zoning Committee of the Planning Commission (ZOCO) will provide review and feedback of staff’s proposed changes.

Change of Outdoor Café Regulations

Arlington County is proposing a Zoning Ordinance Amendment regarding outdoor cafes on private property. Given the increased number of outdoor cafes in Arlington, the County is seeking to codify its policies and practices. As proposed by County Staff, the key characteristics of an outdoor cafe are: accessory to primary restaurant use, lacking permanent walls and fixtures, containing fewer seats than the primary restaurant, and being open the same or fewer hours than the primary restaurant. The Zoning Ordinance Committee of the Planning Commission discussed the amendment in February and public hearings on the amendment will likely occur in May.

North Quincy Street Plan Addendum Approved

On February 23, 2013, the Arlington County Board approved the North Quincy Street Plan Addendum after a lengthy staff and community planning process. Over the past three years, 12 Long Range Planning Committee and community meetings were held to review the framework and specific recommendations of the Plan. The Plan Addendum serves to supplement the 1995 North Quincy Street Plan which covers a larger land area.

The approved Addendum focuses on the east and west sides of Glebe Road, between North Carlin Springs Road and Henderson Road. The new Plan assumes larger scale redevelopment to occur on the east side of North Glebe Road and provides for a base density of 1.5 FAR on the east side of the study area with guidance suggesting that additional development may be achieved through application of the County’s bonus density provisions up to a maximum of 4.0 FAR. The Plan anticipates redevelopment on the west side of North Glebe Road at approximately the same level of intensity as currently planned, but allowing flexibility for a potential change to the General Land Use Plan along the Glebe Road frontage and recommends that the tallest building heights be located along North Glebe Road. The Addendum provides for future improvements to the transportation network, both vehicular and pedestrian, in order to break up the two large ‘super–blocks’. A significant open space area is depicted in the center of the west block.

During the motion to approve the Addendum, Board Member, Jay Fisette, stated that the new Plan was a “huge success of the process” and that while the hearing discussed some of the finer points, “the big picture was all very positive”. Board Members Garvey and Hynes concurred with his remarks. Approval of the Plan Addendum was unanimous. For more information, contact Liz Nicholson in WCLEW’s Arlington office at 703-528-4700.

Developers Taking Over Troubled Projects Must Take Caution

Posted on by Admin

A problem that has come to prominence recently is the developer that has run into financial problems and is no longer able to finish the project. Often in these cases the project is taken over by the bank or another developer. Generally speaking, the documents in these projects are in a very uncertain state. Significant problems may arise if some of the lots have been conveyed to the end-user by the original developer. In many cases, the new developer, for market reasons, needs to go in a different direction. In these cases, promises made by the original developer to owners, even oral ones, may be enforceable against the new developer under the law of Equitable Servitudes.

In Virginia, a court may use its equitable powers to enforce the promises made by a developer to an end-user who purchased property under the original scheme of development, even if that scheme of development has not been fully documented in the land records. If a new developer steps in to finish the project and had knowledge of, or even the opportunity to obtain knowledge of, the promises made by the original developer, then the theory of “equitable servitude” can be used to enforce the original developer’s intent, despite the fact that the lot has no recorded covenants.

Recently, we had the opportunity to put this concept to a test. A planned 21 lot single-family residential neighborhood of million dollar plus homes stalled during the middle of the 2008 financial crisis. The bank forced the developer to stop the project. A friendly foreclosure ensued. However, the developer had sold 3 finished lots prior to the foreclosure and had promised those owners that the entire subdivision would remain single-family dwelling units only. The original developer, seeking cash to appease the bank, sold some of the parcels to Loudoun County who intended to put a massive fire station complex on the two lots it purchased. The County knew of the original developer’s original intent for the project but believed it could proceed with the fire station because the restrictive covenants, which were intended to be recorded by the original developer limiting the property to a typical residential subdivision, had not been recorded.

Using the concept of equitable servitude, our attorneys Andy Burcher and Mike Kalish filed suit on behalf of the homeowners who had purchased from the original developer. The goal was to impose an equitable servitude enjoining the County from building anything that was inconsistent with the original developer’s scheme of development: detached single family residences. After a two-day trial, the Loudoun County Circuit Court concluded that the County had actual and constructive knowledge of the original developer’s scheme of development of detached single-family residences. Based on this knowledge, the Court enjoined the County from using the property for anything other than a single-family residence. The case is Oliver, et al v. Board of Supervisors (Loudoun County 2011), Letter Opinion dated December 2, 2011 by Judge Burke F. McCahill. The County appealed the decision and the Virginia Supreme Court denied the appeal, finding no error by the trial court.

For developers, it is important to understand the nature of the property that you are purchasing. Due diligence obviously includes a proper title search. However, due diligence must include a complete understanding of the history of the property and potential obligations of the original owner beyond the land records. The possibility that adjoining parcels that were part of an original scheme of development may be able to thwart your plans through an equitable servitude should not be ignored.

2013 General Assembly Update and Its Possible Consequences

Posted on by Andrew Painter

Virginia Capitol Building

The Virginia General Assembly convened January 9, 2013 and is scheduled to adjourn on February 23, 2013. Much of the 45-day “short session” has already been devoted to the discussion of federal budget impacts, uranium mining, implementation of the Affordable Care Act, and Governor McDonnell’s 2013 transportation package. “Crossover,” the last day for each house to consider its own legislation (excepting budget matters) and to forward all approved bills to the other chamber, is scheduled for February 5, 2013.

Walsh Colucci’s Legislative Committee has been monitoring several bills related to the real estate industry and a comprehensive legislative list may be downloaded here. Walsh Colucci will provide periodic updates on the status of these bills and will compile a final list of pertinent legislation following adjournment.

A comprehensive list of descriptions and resolutions of all bills filed during the 2013 General Assembly session may be found on the General Assembly’s Legislative Information Service homepage.

Some legislative initiatives of note include the following:

Attorney Fees In Zoning Actions (HB1429 (Morris)): This bill provides that a court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in a zoning action brought against it or that successfully challenges the validity of a zoning ordinance.

Dulles Toll Road Rates (HB 1696 (Minchew)): This bill authorizes VDOT to enter into an agreement with the Metropolitan Washington Airports Authority whereby MWAA would reduce tolls on the Dulles Toll Road in exchange for the Commonwealth’s moral obligation backing of bonds, not exceeding an aggregate principal amount of $500 million.

Stormwater Management Ordinances (HB2190 (Cosgrove)): This bill would require localities that adopt more stringent stormwater management requirements than those necessary to ensure compliance with the minimum regulations of the Soil and Water Conservation Board to submit such requirements to the Board to confirm that statutory requirements have been met and that the locality’s determinations pursuant to the statute are reasonable.

Recorded Plats and Final Site Plans (HB2238 (Marshall)): This bill provides that a site plan shall be deemed final once it has been reviewed and approved by the locality if the only requirement remaining to be satisfied in order to obtain a building permit is the submission of any other administrative documents, agreements, deposits, or fees required by the locality in order to obtain the permit.

Cash Proffers (HB2239: (Marshall)): This bill would provide that cash proffers shall not be used for any capital improvement to an existing facility that does not expand facility capacity or for any operating expense of an existing facility such as ordinary maintenance or repair.

Cash Proffers (HB2265 (Knight)): This bill would allow localities to waive certain written notice requirements in order to reduce, suspend, or eliminate outstanding cash proffer payments for residential construction calculated on a per dwelling-unit or per-home basis that have been agreed to, but unpaid, by any landowner.

Condominium Declarant Control Periods (HB2275 (Peace)): This bill would expand declarant control periods where a declarant has reserved the power to add more units to the condominium and provides that, at the request of the declarant and a two-thirds affirmative vote, the initial declarant control period for an expandable condominium may be extended at any time prior to its expiration, provided that it does not exceed 15 years from the settlement of the first unit to be sold in any portion of the condominium.

Governor’s Transportation Bill (HB2313 (Howell)): This bill would raise registration fees for vehicles and trailers, raises the license fees for electric vehicles, raises the state sales and use tax from 4 percent to 4.8 percent and designates the increased revenues for the Commonwealth Transportation Fund. The bill also proposes the elimination of the statewide gas tax and makes several technical changes related to the administration of these provisions.

For more information on the foregoing bills, please contact Andrew A. Painter.

Loudoun County Trends

Posted on by thelandlawyers

Bisnow, the nation’s largest commercial real estate events producer, hosted the second-annual “Loudoun County State of the Market” symposium on November 28, 2012 at the National Conference Center in Leesburg. The event, which included a “mixed use” panel moderated by Walsh Colucci associate attorney Andrew A. Painter, focused on the future of the commercial real estate industry in Loudoun County. The event featured a keynote address by Loudoun Hounds CEO Bob Farren, who discussed details for his plans to construct a minor league ballpark in the “One Loudoun” project.

The mixed use panel discussed the next stages of development in Loudoun County and the county’s housing, office, retail, and data center markets. The panel included Bill May of Miller and Smith, Buchanan Partners’ Bob Buchanan, John Beatty of Beatty Development, and Buddy Rizer of the Loudoun County Department of Economic Development.

What is important to know in Loudoun County? What is coming? Developers need to be aware of Loudoun County’s “Transition Policy Area,” and the potential for development around the county’s future Metrorail stations. Other important issues include the funding of surface transportation infrastructure, and the existing political climate of Loudoun County. If you want to discuss such matters in more detail, please contact Andrew Painter in our Leesburg office at apainter@ldn.thelandlawyers.com.

Reston Redevelopment

Posted on by thelandlawyers

night viewOn Tuesday, September 11, 2012, Walsh Colucci representatives obtained PRC Plan approval from the Fairfax County Board of Supervisors for Reston-based RTC Partnership, LLC’s proposal to allow the redevelopment of its 2.36-acre “RTC Office Building” site in the Town Center North area of Reston. As approved, the existing structure would be replaced by a 23-story “Class A” signature mixed-use building consisting of approximately 413,700 square feet of office uses and approximately 5,200 square feet of retail and restaurant uses at a density of 4.08 FAR.

The owner’s plans envision the property as a Transit–Oriented Development (“TOD”). This complex approval required the owner and Walsh Colucci to navigate through, and evaluate the import of, a series of prior zoning approvals affecting the site. For example, the property’s unique zoning history called for commercial uses on the property without height or density restrictions. Additionally, it is one of only a handful of properties located in Reston’s “Town Center” district that were not subject to the 1987 Reston Town Center rezonings.

The project also necessitated the need to respond to concerns raised by members of Reston Association’s Design Review Board, the Reston Planning & Zoning Committee, the Fairfax County Planning Commission, and the Fairfax County Board of Supervisors. In response, significant changes were made to the project’s architecture, layout, and amenities.

As approved, the building includes high-end architectural design features, a 36,000 square foot rooftop terrace, a screened parking structure, a commitment to pursue LEED Silver certification, a contribution towards public art in Reston, an aggressive Transportation Demand Management (“TDM”) program to reduce peak hour trips, as well as pedestrian connections to Reston Town Center and nearby trails, and the planned Reston Parkway Metrorail station. Nearly half of the footprint of the property is set aside for public open space, and the project also includes facilities for cyclists, joggers, and pedestrians.

Key personnel from Walsh Colucci involved in the project approval included Art Walsh, Lynne Strobel, John Foote, Bill Keefe, and Andrew Painter, who gave the presentation before the Board.

Condominium and Homeowner Association Development Update

Posted on by Admin

The Virginia General Assembly has enacted new laws which require all associations (Homeowner Associations and Condominium Associations) to adopt complaint resolution procedures, and cost recovery policies. These laws are currently in effect, and though the main impact is on existing communities, developers need to make certain that their management companies have the necessary policies and procedures in place for all new developments.

Section 55-530 of the Code of Virginia requires all associations to establish procedures for the resolution of written complaints from the association members and other citizens. The Virginia Department of Professional Occupational Regulation, and the Common Interest Community Ombudsman Regulations, require all associations to publish their complaint procedures.

A second requirement states that each association must adopt a “Cost Schedule” in order to charge its members the actual cost for reviewing and copying the records of the association.

Under the new statutory provisions, in order to recover costs, associations must have a policy in place that sets forth the Cost Schedule for the labor and material charges for the requested documents. This Cost Schedule should reflect charges that are reasonable, and costs may not exceed the actual cost incurred by an association.

Our firm can provide assistance with getting these procedures adopted and in place. Please contact Bill Fogarty or Mike Kieffer for additional information.

Rosslyn Sector Plan

Posted on by Admin

Rosslyn, connected to the District of Columbia by the Key Bridge, is considered by many as Arlington County’s “downtown” of the Rosslyn-Ballston Corridor. It includes a significant amount of office space, a number of corporate and government tenants, and is the location of the new Artisphere. There has been recent development activity in Rosslyn with the approval of JBG’s Central Place and Monday Properties 1812 N. Moore Street developments. Both of these developments, as well as general growth in the County, have brought to light questions about the future of Rosslyn in terms of built-form, urban design, the skyline, open space, as well as other elements. In response and because development in Rosslyn is guided by the 1977 Rosslyn Transit Station Area Study and the 1992 Rosslyn Station Area Plan Addendum, Arlington County has initiated an effort to update the 1992 Rosslyn Station Area Plan Addendum. On June 14, 2011, the County Board approved a 2012 Rosslyn Sector Plan Addendum Scope of Work, which will build on the 1992 Rosslyn Station Area Plan Addendum. The new Rosslyn planning effort will focus on creating a framework to improve urban design quality, refining and improving transportation options, recommending a building heights strategy, and developing a more cohesive and functional parks and open space network. Currently, this planning effort is in the beginning stages, which includes initial engagement of the community and stakeholders, as well as the engagement of a consultant to aid Arlington County in its efforts to update the 1992 Rosslyn Station Area Plan Addendum. Arlington County hopes to complete the update by the Fall of 2012.