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Tuesday, August 18, 2015

Homeowners say housing development violates subdivision covenants

The Woo property where Evergreene Homes plans to build eight houses.
A small group of homeowners in the Falls Church area of Fairfax County are trying to stop the development of a housing project that they say violates the covenants of their community.

Anthony Crescenzo, a resident of the Malbrook subdivision, filed a suit to stop Evergreene Homes from proceeding with plans to build eight single-family homes on a four-acre lot, known as the Woo property, at the end of Brooks Place. The other homeowners in the 11-home Malbrook community are joined in the suit as covenant holders.

Brooks Place

The Circuit Court of Fairfax County is scheduled to hear the case in March and will hear a request by the plaintiffs for a preliminary injunction Sept. 9.

Evergreene Homes has already cut down the trees on the Woo property and has publicized the development, known as “Brooks Place,” on its website. Rob Cappellini, the CEO and co-founder of Evergreene, declined to comment, other than to say the project is “on hold,” pending resolution of the legal issues.

The only access to the property is via Brooks Place, which is less than 15 feet wide and would have to be widened. The Malbrook homeowners charge that the developer’s plans to widen Brooks Place and install sidewalks violates the covenants established when their subdivision was built in 1946 on a former apple orchard.

Lake Barcroft residents are concerned that traffic to and from the new homes would result in congestion on Crosswoods Drive and Dearborn Drive, the most direct route to Sleepy Hollow Road. There is also a concern that drainage from development on the Woo property would cause flooding at homes at a lower elevation.

Evergreene Homes already cut down trees on the Woo property. [Photo by Darren Gruendel]
Even more alarming to nearby residents is the possibility that Evergreene is eyeing an adjacent 10-acre lot, known as the Glavis property, for the future development of up to 20 more houses. 

The Malbrook subdivision’s covenants prohibit any lot to be subdivided, require homes to be restricted to residential uses, require homes to be at least 50 feet from a road, require a committee of Malbrook owners to approve any building alterations within the subdivision, and prohibit houses from being larger than two and a-half stories.

The covenant most relevant to the current situation is the provision giving Malbrook owners the sole right to grant easements and rights of way on streets within the subdivision.

The Woo property isn’t part of Malbook (or Lake Barcroft), but the houses lining Brooks Place are in Malbrook and are subject to the covenants.

Darren Gruendel, a resident of Malbrook Drive who has amassed a large collection of documents and maps on the attempt to develop the Woo property, says the owners, Mai Woo, the president of a real estate company, and her husband, proposed to subdivide the property as early as 2002 but nearby residents opposed the project and it wasn’t formally submitted to the county until 2008. The project then stalled because neighbors complained that Brooks Place wasn’t wide enough to provide access to new residents. At that point, Gruendel said, the development plans appeared to be dead.

In 2009, Richard Moore, acting as a “straw man” for the Woos, purchased an adjacent house at 6551 Brooks Place and transferred the deed to a newly created limited liability company called Moore Green LLC administered by the Woo’s nephew, Cliff Nguyen. Fairfax County records show the house was “sold” last December to Gene Woo for $0.

The fenced off area on the right is the easement on Brooks Place.
Meanwhile, Moore Green LLC had deeded a sliver of land along Brooks Place to the county for road widening. Neighbors continued to object and again the project was stopped but basic work on the Woo property resumed last December. 

Until the Malbrook homeowners filed suit, Evergreene Homes was proceeding with the development despite the Malbrook covenant that prohibits homeowners from granting an easement without approval from the other homeowners. Since there is no proposal for rezoning, there’s no need for a public hearing.

“It’s mindboggling that they would go through with this in violation of the covenant,” Gruendel says. With regard to Moore’s approval of an easement, he says, “you’re not allowed to give away what you don’t own.”

The part of Brooks Place between Glavis Road and Crosswoods Drive is state owned and cleared by VDOT snowplows. The section between Glavis and where it ends at the Woo property is not a state road and is not plowed. Gruendel contends that part of Brooks Place is a private road, citing a letter from Fairfax County sent to residents in 1979, although it’s not clear who actually owns it.

There are several protected trees along Brooks Place that would likely have to be removed if the road is widened, including a row of American hollies and potentially a couple of enormous dawn redwoods. 

If the court allows the Brooks Place project to proceed, local residents are concerned that would clear the way for development on the adjacent 10-acre Glavis property, which is mostly wooded with one or two decrepit, abandoned houses. Bordered by Sleepy Hollow Road, Sleepy Hollow United Methodist Church, the Woo property, and the Malbrook subdivision, is owned by Margot Glavis, age 108, who doesn’t live in the area. While she has resisted selling the land, her children are believed to be in favor of selling to a developer. 

The Glavis property, like the Woo property, is zoned R-2, meaning it could support two houses per acre.

While there are no current plans to develop the Glavis property, Gruendel has unearthed a plan that has been submitted to Fairfax County that estimates 390 vehicle trips a day on Brooks Place, which seems to indicate that Evergreene eventually plans to build on the Glavis property. VDOT’s rule of thumb is 10 trips a day per house, meaning development of the Woo property – with eight houses – would generate 80 trips a day.

The Malbrook subdivision doesn’t have a homeowners or community association, and that has made it difficult to get some county officials to take their concerns seriously, Gruendel says. The residents are now thinking of starting one.

Dawn redwoods at the intersection of Glavis Road (left) and Brooks Place.


  1. My goodness, this read like a development soap opera. Can't wait to see who prevails, and I hope that it is Malbrook.

    "The Malbrook subdivision doesn’t have a homeowners or community association, and that has made it difficult to get county officials to take their concerns seriously, Gruendel says. The residents are now thinking of starting one."

    This is just disgusting. My community doesn't have an HOA either, but I pay property taxes just like any other resident of the county, and I expect my voice and concerns to be heard.

  2. I assume that the Glavis property includes the last untouched stretch of woods that fronts onto Sleepy Hollow Road. Developers have wrecked the rest of the formerly scenic stretch between Holmes Run and the elementary school, so clearing this property would complete the destruction. There needs to be a way to prevent that from happening.

    1. You could move to Clarke county

    2. Adam pretty much sums it up. I bought in Annandale in 1997 and those developments were there, so the earlier commenter really is pining for an era that will not come again. We are lucky enough to be in a close-in area of a metropolitan community that wasn't hit as hard by the recession of 2008...but that means that others want to be here too, and development will continue. (And current property values will continue to rise, too--I can live with that.)

    3. I don’t get it. You know populations grow, some more than others, but they grow. When populations grow, they tend to do so around metropolitan centers. Did you really think that Fairfax was going to remain an idyllic and open wonderland when the DC metro region has experienced crushing population growth in the past 20 years? Where do you think these people are going to go? If having green space, no apartments, and a thriving environment is/was that important to you, you should probably have chosen to live somewhere where the risk of population growth would have been far less impactful for far longer, e.g. Clarke County. If you bought your house ages ago, sell it, I'm sure it's worth a fortune. With that money you can live literally on dozens of acres in a gorgeous house out in west VA, then take a private helo into Mason every once in a while when you miss Sleepy Hollow. If you bought your house recently, you really have no excuse.

    4. Incredible how tunnel-visioned and self-centered people can be. As if no one else could possibly have valuable opinions or input. If you really think it's no big deal that this developer has strong armed his way into building on this property, you are very ignorant of what this sets a precedent for. But maybe you don't care at all? There are others that clearly see the value in keeping green spaces green. The entire area is heavily wooded, with modest sized homes. The development at the corner of Valley Brook and Sleepy Hollow has been an eye sore for years. It doesn't fit in, the homes are obnoxiously large and boring. To say that the current owners shouldn't be able to block this is plain wrong. These are communities that have been there for over half a century and have a lot to lose from allowing this to go through. Also, in regard to the Glavis property. That poor old woman has been trying to get it turned into park land for YEARS. They continually give her limp wrist excuses why it would be difficult. What a load of horseshit. It would cost the county next to nil to install a parking lot and a couple trails. They don't give a shit, they are in the pockets of developers. Write to Penny Gross, tell her to open her eyes, and worry about something other than the redevelopment of 7 Corners. She is supposed to represent those in her district. Not big business.

  3. to Adam Goldberg,
    There are some of us who don't find loss of green space, clear cutting, the addition of 5,000 additional apartments and the resulting impact on an already fragile environment and aging infrastructure a laughing matter.

    Nor is everyone is in a position to pack up and move.

  4. Two big thumbs up for Adam!

    In this instance, both sides of this dispute are well-funded (don't try to tell me the owners of the neighboring expensive homes cannot hire an excellent lawyer to represent them against the unscrupulous developer of luxury homes) so hopefully this dispute can be resolved in a civilized manner without the slinging of vitriol against either party.

    Someone who loves trees so much as the above commenter over the "destruction" caused by "developers" who "wreck" sites by cutting down trees to build luxury homes on well-landscaped 1/2 acre homesites really needs to move out to Clarke County and be one with nature.

    If I were a crazy liberal, I would consider the tree-lover commenter above to be a budding Unabomber. I can't wait to read to read their soon to be posted manifesto declaring their disdain (to put it mildly) for any potential developer of Sleepy Holllow.

    1. I was with you for two paragraphs. But I am what you would call a crazy liberal, and yet I respect that we have private property rights in this nation. Yes, there are zoning, access and other considerations (and the access in Malbrook sounds like a significant issue), but it's not our prerogative to prevent private development on a whim, such as just because someone wants that last green space preserved.

      Earlier commenter, if that's what you want, encourage the county to buy it at market rate to be parkland...but understand that will require more commitment to increased taxes than most of the posters on this board seem to embrace.

    2. Private property owners have never had unfettered discretion to do whatever they want with their property. That's especially true with residential property because what one owners does can significantly affect the value of a neighbor's property. The Sleepy Hollow corridor used to be a practically idyllic setting in which to live. That's before the developers charged in and began to clear cut large tracts of land to cram in as many town homes and other residences as possible. No one is saying they can't make money. The problem is that they never took the slightest care to preserve some of the trees and other features that made Sleepy Hollow so appealing. So, I can sympathize with the Malbrook residents for not wanting the appeal of their properties trashed by developers who could care less about the impact of what they're doing. Over the years, there's been a rampant disregard for the impact that development has had on the Sleepy Hollow area. Hopefully, this law suit will prevent some of the egregious damage otherwise likely to continue from overdevelopment in Sleepy Hollow.

    3. Who said unfettered? I didn't. I specifically noted that there are considerations, like access, that can be limiting. But the 1:33 commenter (who this thread was responding to) expects things to never change with the wooded plot that fronts Sleepy Hollow because that's how _they_ want it to stay, despite having no ownership of the land, and no particular standing to argue against it. The land is already zoned R-2 and has street access from Sleepy Hollow. If the owner wants to develop it under those conditions, he or she can, with just a few exceptions. (I do think the access issues with the Woo property are a legitimate concern. But that's not what was being argued, and not what I was responding to.)

    4. Anonymous8/19/15, 2:31 PM,

      "The Sleepy Hollow corridor used to be a practically idyllic setting in which to live. That's before the developers charged in and began to clear cut large tracts of land to cram in as many town homes and other residences as possible."

      Where are these town homes? I cannot think of any Town Homes on Sleepy Hollow. I thought there may be some built on the corner lot across from Sleepy Hollow School when it sold but it seems a it is being renovated. It has a pool and a tennis court.

  5. I thought this site didn't condone ad hominem attacks ('Unabomber'). The actions of the Woo family deserve denunciation. It's a typically selfish act with no regard for the public good. Yes, trees are a "renewable resource" if you're willing to wait around for 50 years. Where is the oxygen supposed to come from if not the plants??? Long live the "tree huggers!!!'

    1. Actually phytoplankton contributes 50-85% of the O2 on our planet.

    2. Please. If you doubt that trees are critical to renewing the atmosphere, read this:

    3. I never said trees aren't important, just that microbes actually make a lot of our O2, which a lot of people may not realize

    4. Adam, what an odd time to throw in a random science lesson! It would definitely appear that you used you're phytoplankton comment as some sort of argument, realized that was stupid after being called out, and tried to save face. But you tell me!

    5. it's always a good time for science! I don't feel stupid at all, but feel free to infer all sorts of things.

  6. Aside from the obvious benefits of trees and the rights of property owners in a capitalist society,there are also facts that cannot or should not be ignored.

    Our neighborhood schools are overcrowded with accreditation problems, traffic is a nightmare which is getting worse, there is an obvious lack of recreation space and parks and,our public facilities are long overdue for replacement.

    When does common sense kick in to insure that those basic requirements of "the good life" so sought after in our area are still available for everyone?

    Our family has lived here for over 40 years. We have seen the area become more urban and more diverse. Change is, of course, inevitable. Managing it for the benefit and safety of the community is what matters.

    Suggesting that those who sincerely care about the future of the area and have the audacity to question
    current policy should move to Clarke County is unfortunately, all too typical of today's discourse.

    1. Sounds like you should move to Clarke too.


    2. No, Clarke is where the snobs move to. Move to Warren County instead: the property taxes are lower.

    3. Berryville is snobbish? lol

    4. 3:54 cites school problems, traffic problems, lack of recreation space, need to invest in public facilities: all those are here without the development that you're upset about. Maybe "common sense" is that we need to invest more in those things as a community. But since enough people have fallen completely for the idea that all taxes are bad, we no longer invest in those things in the same way we did a generation or two ago and we're wearing out their prior investment faster than we're recapitalizing it. That's not a function of development that's not even here yet.

    5. Andrew. You agree that these are issues. Then turn around and basically say nothing can be done. Really, just a poor way to look at things. If there are already issues with overcrowding, adding MORE homes and people, makes the issue worse. Why is that hard to understand?

  7. Insert "homeowner" name (this time Woo" when all they've done is sold their private property. I'm sure all of those against this decision would turn down millions for the "public good." These types of NIMBY posts border on insanity. Before your house was built it was probably a sheep farm. If the original landowner didn't sell the property and pave the way for your home you never could have lived here. Moving to the nation's capital and not expecting change is just crazy - especially as pointed out by another poster that the development has rewarded you significantly in increased home value if you've lived here for more than a decade. The free market works because of laws and buyer beware. It doesn't when elected officials make political decisions that can significantly impact homeowners that didn't buy into radical community changes like the R-20 residential zoning debate in 2013. That's the change you need to fear; when elected leaders try to change the rules on a massive scale. And I bet not a single R-20 zone would have been anywhere near one of the supervisor's homes.

  8. We need a better steward for Mason District. I know the Malbrook folks have tried to get Penny to help them but she turns a deaf ear. We can have development in Mason District, but not the destructive kind, that is, put as many houses on a lot as possible and then sell. They say the stormwater regulations are so much stronger now but developments (like this one) that have already been approved is grandfathered in and doesn't have to follow the stricter rules. The eight new homeowners will have to manage their own stormwater maintenance. Who the heck knows how to do that. Woo and the developers don't care what they leave their wake. I congratulate this group of neighbors who have been fighting this for years with no help from anyone. I hope they form an association and fight to the end.

    People look at where you live and if you see any empty space know that developers are looking at that piece of land too and will soon try to build a house or a townhouse on it. In Mason District, it's a free for all for developers.

  9. I hope the Park Authority acquires the Glavis property. It's a beautiful piece of woodland and it should be preserved.