Work underway on infill housing opposed by Malbrook residents

Work is under way on an infill housing development between the Lake Barcroft and Malbrook communities, even though Malbrook residents charge the project is in violation of their subdivision’s covenants.

Malbrook residents’ lawsuit to block the development was denied a hearing by the Virginia Supreme Court in July. But that doesn’t mean the county and developer have the right to ignore the covenants, says Malbrook resident Darren Gruendal.

Evergreen Homes plans to build eight single-family homes on a four-acre property at the end of Brooks Place. Within the past few weeks, Evergreen has begun site preparation, installed a silt fence for erosion control around the property and removed several large holly trees that Malbrook residents say were supposed to be protected.

Evergreen can build the houses by-right, Gruendel says, but the only way to get to that property is via Brooks Place, which the Malbrook residents contend is a private road. They charge that Evergreen, with Fairfax County approval, is attempting to widen a section of Brooks Place, which would be in violation of the covenant deed established when Malbrook was built in 1947.

“We have a 70-year-old contact. You can’t say it doesn’t exist,” he says. “This is really bizarre.”

Attempts to develop the Brooks Place property in 2008 and 2009 were rejected by the county, and in 2011, the county put the development plan on “administrative hold” because “a portion of a residential lot dedicated for a public right of way is encumbered by a private covenant.”

“The county has apparently completely switched its position regarding the protection of individual property rights in favor of the rights of developers,” Gruendel says. “It’s a little hard to tell why or what justification they claim because, despite repeated requests, they just won’t say.”

The county can either tell the residents outright that they have “the statutory right to supersede the covenants or take the land by eminent domain,” he says. They are doing neither; “this is sloppy and ugly.”

According to Gruendel, residents have paid for maintenance and snow removal on Brooks Place; not the county nor VDOT. And they contend VDOT records identify it as a “privately maintained road.”

Fairfax County, however, considers Brooks Place a “gray area” that is neither public nor private, he says.

When the developer claimed it was a public road and had no encumbrances on it, VDOT signed off on a design review for the project. Gruendel says the VDOT approval was made under “false pretenses” and should be revoked.

According to Gruendel, the county’s contention that it “owns the road in fee simple is just not true and we have cited the codes supporting our position. They own a right of way subject to the restrictions in the deeds.” And he says, neither the county attorney’s office nor the Board of Supervisors have provided a justification for their positions “which is so obviously in conflict with the facts.”

In an Aug. 3 email to Malbrook resident Maria Smith, Mason Supervisor Penny Gross said a review by the county attorney “reveals no conflicts with any applicable county and state statutes, rules, codes, or regulations. Brooks Place is an unimproved county dedicated road (dedicated in 1946, as you are aware) and owned by Fairfax County in fee simple, even though it is privately maintained.”

According to Gross, “Revised plans submitted to the county were deemed to be compliant by the appropriate reviewing agencies and I, as an elected official, have no authority to require that construction be stopped.”

Gross has not responded to further emails from Malbrook residents, including an Aug. 4 message from Jose Ruisanchez asking: “On what authority has the county gained control over our rights? We are yet to receive a single citation of law or code regarding the county’s authority on this matter.

“Saddened by the loss of our trees,” Ruisanchez told Gross, “We hold you and your county colleagues responsible for all this damage and for the disrespect for our property rights.”

For the Malbrook residents, the dispute isn’t just about the eight houses at the end of Brooks Place. There’s a 10-acre wooded lot between Brooks Place and Sleepy Hollow Road owned by the Glavis family that could support 20 new houses.

“Our expectation is that will absolutely be developed,” Gruendel says. He believes it would be financially advantageous for the developers to use Brooks Place as the access point to that development, so any actions to make Brooks Place a public road would favor that development.

If the access to the Glavis property were from Sleepy Hollow Road, he says, that would cut into the number of houses that could be built, thus reducing the developer’s profits.