A Fairfax County Circuit Court judge last week issued a summary judgment against the Town of Herndon in its ongoing legal battle against Comstock after the developer backed out of a long-stalled downtown redevelopment project in 2024.
The town’s lawsuit, filed last year, had demanded that Comstock return the title of a nearly 5-acre site in the northeast quadrant of the Elden and Center Street intersection, that had been transferred to the developer with plans for a mixed-use block with apartments, an arts center, retail space and a parking garage.
In an opinion dated Sept. 17, Judge Tania M.L. Saylor wrote that according to applicable law and the language of a deed issued December 2020, the town “is not entitled to a reconveyance of the property.”
Both sides had requested summary judgment, a common legal tactic in civil cases to spare time and expense, effectively asking the judge to decide the case before going to trial.
While in 2017 the town had signed a comprehensive agreement with Comstock stating it would have the right to terminate the developer’s title to the property, subject to certain terms and conditions, a new amendment to the agreement in 2020 gave the developer the right to back out of the project without penalty, if done by a certain date, the judge said.
That fact was paired with a special warranty deed that “does not state, directly or indirectly by inference, that Herndon retains a post-conveyance right of reentry to the Property,” Saylor wrote.
In a release Monday morning, Comstock said it was “pleased with the Court’s decision granting summary judgment in Comstock Herndon’s favor, confirming our position regarding the involved parties’ contractual rights and obligations.”
“While we are disappointed by the tone and characterization of the Town of Herndon’s public comments following the ruling, we remain willing to keep with our original intent to work with officials on redeveloping a key piece of Herndon’s historic downtown into a Class-A mixed-use development,” the statement said. “We firmly believe moving forward with a collaborative approach would be in the best interest of all stakeholders.”
Documents submitted to the court by the company’s legal counsel state that the developer has already spent “millions of dollars” on the property; the company’s position is that the deed and the amendment “preclude” Herndon’s claim “as a matter of law.”
“Comstock has declined to convey the Property to Plaintiff because it is not obligated to do so,” attorney F. Douglas Ross, of Odin, Feldman & Pittleman, wrote in a memorandum in support of the summary judgment earlier this year.
The town is preparing an appeal; on Friday it submitted a number of objections to the judge’s letter and order. Mayor Kevin LeBlanc issued a statement last week saying that the town “is stunned and disappointed by the court’s ruling regarding our land in the heart of our community.”
“We believe the decision runs counter to the clear terms and intent of the contract and standard protections for municipalities,” LeBlanc continued. “This ruling gives a large corporate developer the heart of a community and turns it into blight. The decision allows Comstock to control the property until the Court of Appeals reverses this flawed ruling.
“The heart of Herndon is not theirs to steal. They may take this ruling but not our resolve.”
The statement goes on to say:
“As a tight-knit, resilient community, Herndon will not back down when standing up against powerful corporate interests. We will continue to champion our residents’ future through all available legal avenues and strategic options.
Corporate developers like Comstock routinely attempt to leverage their immense resources against smaller local municipalities, but the Town of Herndon remains resolute in defending our public assets and ensuring community interests always come before corporate motives. We will not allow this ruling to deprive our residents of the future they have envisioned and deserve.
The Town of Herndon team is preparing our appeal. We will provide updates to the community as legal developments progress.”
Six candidates for Herndon’s Town Council also signed a letter, issued Friday, pledging to continue efforts to recover the property, “put Herndon first” in any future talks with developers, and “learn from the past” by including enforceable deadlines and protections for the town if deadlines are not met.
“This court decision is a setback, but it is not the end of the story,” the letter signed by Sabrina Bruce, Yasmin Shafiq, Josif Ezekilov, Meron Yohannes, Stevan Porter and Justin Britt, states. “We want this land back, and we want the people of Herndon to have an opportunity to build a downtown that serves our community, not a corporation’s bottom line. We are committed to continuing the fight.”
