You arrive home that evening from work and sort through the mail, like you normally do. Bills, ads and even a birthday card from your Great Aunt Doris. The usual. At the bottom of the pile, though, is a letter from your local Zoning Office. That seems odd. You open it up to find the words “NOTICE OF ZONING VIOLATION” scrolled across the top of the letter. You read on to find the Zoning Administrator has determined your property is in violation of the local zoning ordinance, and that you have 10 days to correct the problem, or you will start to incur fines until you do. What now?
Image courtesy of The Shooshan Company. Design by WDG Architecture.
On October 20, 2015, the County Board of Arlington County unanimously approved The Shooshan Company’s 4.1 Site Plan Special Exception application for Clarendon West, a mixed-use residential and retail project. Represented by Jonathan C. Kinney and Matthew G. Roberts, the project introduces over 580,000 square feet of new development at the current site of the Red Top Cab company in Arlington County’s Clarendon neighborhood. With this approval, The Shooshan Company will build up to 580 multi-family residential units and approximately 3,500 square feet of retail space in three separate buildings. The multi-phase project includes substantial public benefits, including multiple transportation and traffic improvements along 13th Street North and Washington Boulevard, the delivery of land for a public park envisioned by the Clarendon Sector Plan and on-site affordable housing, among others.
Further details about the approval can be found on Arlington County’s website.
A fairly new policy change from Dominion Power could mean delays in the process of receiving final site plan approval, which could delay the construction process. Virginia Dominion Power has notified local jurisdictions of a change in policy regarding where underground vaults must be placed for new developments. Vaults must now be placed on property owned by the development and include an easement granting access to the vault.
As a result, site plans with vaults on public property, such as under a sidewalk or street, may be flagged during the approval process. The reasoning behind the change is that Dominion Power wants to be granted an easement on the property from the developer to secure access to the vault, which they cannot do on public property because the developer does not own it.
Image courtesy of Dudley Carr
Fairfax County is proposing amendments to the Planned Residential Mixed-Use (PRM) and Planned Development Commercial (PDC) zoning districts that would have a dramatic effect on future projects. Responding to comprehensive planning guidance for increased density and mixed-use projects in Transit Station Areas, Commercial Revitalization Areas and Commercial Revitalization Districts, the proposed changes would allow projects to achieve greater densities and facilitate walkable, urban projects.
Chief among the proposed changes is increasing the allowed density in the PRM and PDC districts. If the Board of Supervisors adopts the changes, projects within Transit Station Areas and Commercial Revitalization Areas or Districts could receive up to 5.0 FAR at the Board’s discretion. Notably, however, the Board could limit projects to the densities stated in the comprehensive planning guidance for a particular site or area. Related changes include eliminating requirements for increased open-space and unique design features and adding provisions specifically permitting parking reduction requests.
These amendments are proposed for public hearings in November and December of 2015.
Image courtesy of La Citta Vita
A new ruling by the National Labor Relations Board could impact the relationship between developers, construction companies and their workers.
In a landmark decision on Thursday, the National Labor Relations Board (“NLRB” or “Board”), by a 3-2 vote, determined that its long-standing “joint-employment jurisprudence” had grown “increasingly out of step with changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships, i.e., shift work, contract workers, and temporary employee relationships[,]” across the U.S.
Much has been written about “pop-ups” in the District of Columbia, including a summary of the pop-up dispute and proposed changes to the D.C. zoning regulations on this blog last fall. The lengthy and contentious public debate culminated in new zoning regulations, effective on June 26, 2015, that ostensibly limit pop-up development in some areas of the city. However, despite the new regulations, the rise of pop-ups will continue to be seen given the appetite for new housing stock in D.C. The fight now appears to be shifting to design review and local neighborhoods’ use of the city’s historic designation laws to slow down or stop pop-up development.
On Saturday, July 18, the County Board approved the Retail Action Plan by a vote of 4 to 1, with direction to further amend some facets of the proposed plan. Board Member Libby Garvey voted against the Plan.
During a rather extensive discussion which focused a great deal on the feedback that Board Members and Staff received calling for more flexibility within the Plan, the Board ultimately decided to broaden the “red” category to permit more uses. Many critics of the Plan believed the red category was too restrictive. The use category of Services and Repairs will now also be permitted within the red category.
The Board also voted to incorporate the Process document released by AED within the Plan itself to help aid Developers and the Board in applying the Plan to future and existing site plans. This document, originally requested by Chairwoman Hynes at one of the working sessions, was designed to aid the analysis of a site plan when there were other conflicting policy documents. In essence, the Process document helps to demonstrate when the retail action plan may stand up to or yield to existing policy documents like sector plans and the like.
The Arlington Economic Development staff will be updating the Plan to incorporate the latest revisions made by the Board. There was no timeline specified as to when that may be final, however, the Plan has been approved.
In addition to approval, the Board decided a periodic review of the plan was needed, as retail trends change quickly. With this end in mind, they requested that the Plan be reviewed on a periodic, ongoing basis.
Original image courtesy of Brett VA – changes made
On June 18, 2015, the United States Supreme Court ruled in Reed v. Town of Gilbert that an Arizona town’s sign ordinance unconstitutionally regulated the content of speech posted on signs within the town. Like so many modern localities, the Town of Gilbert had adopted a sign ordinance regulating signage within the town, including the total number of certain signs that could be displayed, their size and how long such signs could be displayed. The town based these restrictions upon the type of sign to be displayed and created categories of signs subject to different regulations. In particular, the town created different regulations for ideological signs, political signs and temporary signs. The town based these differences in its police power considerations for the town’s aesthetics and traffic safety, and claimed it did not disagree with any particular message on a given sign. Under these sign regulations, the town cited the Good News Community Church on several occasions for violating the temporary sign regulations, because the church had not removed them in time and failed to include all the information required on a temporary sign. The church, in response, sued the town, claiming the ordinance was an unconstitutional content-based restriction of its freedom of speech.
Part 1 of this piece can be accessed here.
As mentioned above, the law is evolving to place greater obligations on landlords with respect to maintenance and repair. The landlords strike back by including onerous provisions in their commercial lease forms. Maintenance and repair of specialty improvements is no different. The form lease document, unless negotiated and revised by tenant’s counsel, will provide that the tenant is responsible for any specialty systems installed by or for tenant and exclusively serving the tenant. Tenants with complex data storage needs are often surprised to learn of the high cost of maintenance and repair. For example, some tenants may be surprised to learn of the expenses associated with older halon fire suppression systems that are increasingly obsolete, expensive to repair and even more expensive to remove.
Disputes over specialized tenant improvements or exclusive heating and air conditioning systems are common in commercial leasing. Landlords and tenants often argue over maintenance and repair obligations, or whether or not such specialized tenant improvements can remain on the premises upon the expiration of the term or if tenant is obligated to remove the alterations at the tenant’s sole cost.
Landlords often require such alterations be removed and the premises restored to their original condition while tenants would obviously prefer not to have to incur such large move-out expenses. With respect to exclusive heating and air conditioning systems, typically the argument between landlords and tenants is whether or not the tenant must incur significant expenses maintaining and/or replacing a defective unit towards the end of the term at tenant’s sole cost for the benefit of the subsequent tenant of the premises. This article will discuss the typical approaches to these issues and offer suggested compromise language for office and retail commercial leases.