On January 17, 2023, the Loudoun County Board of Supervisors (“BOS”) approved changes to Loudoun County’s Airport Impact Overlay District (“AIOD”). The AIOD is a zoning designation for properties susceptible to airport noise at or above specified levels. Properties located within the AIOD are subject to land use regulations intended to mitigate the impacts on homebuyers in the affected areas and to prevent residential development in areas where the highest noise impact is expected to occur.
Of the changes adopted by the BOS, there are two that are particularly worth highlighting – changes to: (1) the AIOD map, and (2) the disclosure requirements.
Changes to the AIOD map. According to the County, the amendments to the AIOD map adopted earlier this year affect approximately 59,000 properties around and near Dulles Airport. This includes properties that were moved into a different zoning category within the AIOD, as well as those removed from the overlay district. Affected homeowners should have received mailings notifying them of any changes earlier this year. Homeowners can also visit Loudoun County’s Online Mapping System (www.loudoun.gov/weblogis) to find out if and/or where their property falls within the new AIOD map.1
For property owners who were moved into a zoning category that requires acoustical treatment (aka soundproofing measures) of the property as a result of the changes to the AIOD map, retrofitting of the property will not be required at this time. However, acoustical treatment would be required when any renovation or construction work is done on the property which requires a permit.
Changes to the disclosure requirements. The modified disclosure requirements call for all owners to notify prospective purchasers of the following: (1) that the property is located within the AIOD; (2) the specific zoning category within the AIOD which the property is located; and (3) clearly identify that the property is located within an area that will be impacted by aircraft overflights and aircraft noise. Appropriate disclosures must also be included in all sales contracts, brochures, promotional documents, and deeds of conveyance related to the affected property.
A sample of the required disclosure statement provided by the County and approved by the Zoning Administrator is below:
NOTICE: The subject property is located within and subject to the Airport Impact Overlay District, [Select One: within one (1) mile of Ldn 60; Ldn 60-65; Ldn 65 or higher] aircraft noise impact area, under the Loudoun County Zoning Ordinance. The subject property is located within an area that has close proximity to [Select One: Washington Dulles International; Leesburg Municipal] Airport and will be impacted by aircraft overflights and aircraft noise.
HOAs in new developments must provide a clear disclosure of the same, and existing HOAs, though not required to, may include a statement in their resale disclosure packages as follows: “Homes in this community are located near an airport and subject to aircraft overflights and noise due to aircraft.
Contract Loudoun County Government to verify whether your home is located within the Airport Impact Overlay District and the regulations that apply.”
This notice requirement is a significant departure from the previous regulations which only necessitated disclosure at the initial sale of a property and did not impose disclosure obligations on subsequent owners.2
Enforcement and remedies. The ordinance creating these requirements fails to address key questions of enforcement and remedies leaving unclear (1) how the County intends to enforce this more expansive disclosure requirement; and (2) what the remedies are for the parties where a seller fails to fulfill their obligations under the ordinance.
With respect to enforcement, the County’s principal planner with the zoning department, Josh Peters, was asked whether the County has oversight over the required disclosure process, in a public hearing held on November 9, 2022. Peters responded by saying that the county reviews site plans and subdivision plats, but beyond that it would not be a viable exercise.
With respect to remedies, it leaves open the question of whether or not a Seller’s failure to make these required disclosures allows a Buyer to void the parties’ Agreement for the sale/purchase of real property. This question will need to be determined by a judge or jury in a court of law. In the event a contract is voided on these grounds, and to the extent that a dispute exists between the parties, it should be noted that the earnest money deposit (“EMD”) will be held by the Settlement Agent until it receives a release signed by both the Buyer(s) and Seller(s). A more in-depth review of the requirements that must be met before a Settlement Agent can release the EMD can be found on our website in a previously published article - What you Might Not Know About the Earnest Money Deposit (here).
To review the full ordinance visit https://www.loudoun.gov/zoningordinance. Once there, select “Revised 1993 Loudoun County Zoning Ordinance”, then select “Article 4: Special and Overlay Districts.” The section on the AIOD can be found at Section 4-1400 (which begins on page 208 of the 315 page pdf). The Disclosure Statement requirement can be found in Section 4-1405 (which begins on page 210 of the 315 page pdf).
For more information regarding changes to the Airport Impact Overlay District visit www.loudoun.gov/airportdistrict. You can also contact the Loudoun County Department of Planning and Zoning directly. They are available by email at dpz@loudoun.gov or by phone at 703-777-0246.