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.