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This blog focuses on real estate, land use and construction-related topics affecting Virginia and the Washington, D.C. metro area. With topics ranging from contract drafting and negotiation to local and regional land use project updates, the attorneys at Bean, Kinney & Korman provide timely insight and commentary on the issues affecting owners, builders, developers, contractors, subcontractors and other players in the industry. If you are interested in having us cover a specific topic, please let us know.

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Posts from July 2015.

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.

For our previous coverage of the Retail Action Plan, take a look at our original postupdate one and update two.

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.

Specialty Improvements 

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.

Issues with HVAC

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.