H. A. Higham
H. A. Higham and I were co-trustees for the trust u/w of H. A. O'Connell. He was a resident co-trustee and I was a non-resident co-trustee. He was a life saver. I can't think of a better person for this situation. Our family was extremely lucky to have his services and advice. He got a sales contract on Accotink in 1987 that would have benefitted our family immensely. He resigned as resident co-trustee after I returned to Virginia because I became a resident and therefore was not required to have q resident co-trustee.
1985.09.05 (H. A. Higham to Anthony OConnell)
"I am in receipt of and have made a preliminary review of the Estate papers of your father.
I have no problem with serving as co-trustee provided we see eye to eye on how the trust is to be funded. It would appear to me that, as is often the case, there is no "cash" to fund the trust. Therefore, several options are available to secure the trust's assets.
A - First would be to simply record the trusts interests in the real estate and divide the stock based on the vested interests of the trust.
B - Negotiate a trade of real estate based on current market values with your mother and settle the difference with the stock. This would give Mrs. O'Connell the properties of her residence and the trust, Accotink.
C - Forced liquidation, which I am opposed to.
If your goal is some part of A or B I will serve as C0-trustee - implement the appraisals and negotiations as so directed. If your position is forced liquidation I would not wish to serve as co-trustee.
By the way my legal name is:
Herbert Anderson Higham
6208 Higham Drive
Alexandria, VA 22310
Yours truly, H. A. Higham"
1985.12.04 (H. A. Higham to Anthony OConnell)
"I am very pleased that you and your mother have apparently reached an agreement. There are I think questions that need to be addressed:
1. Is there any inheritance tax liability to the trust or it's beneficiaries?
2. Do you in fact have a trust? What documentation has been or needs to be filed with the appropriate state and local governments?
3. To protect the property from additional misunderstanding and tax liability, should the property be titled to the trustees and your mother?
4. What is the recording fee to so record?
I think the trust document is necessary in that it directs the trustees actions. Also eventually there will be a point in time where the assets are distributed to the beneficiaries of the trust. This distribution should be directed by the trust documents. You appear to have reached the point where all the loose ends can be cleaned up - I would hope that you would pursue all documentation to its appropriate conclusions.
Yours truly, H. A. Higham"
1986.03.17 (H. A. Higham to Henry Mackall)
"Enclosed is the signed Agreement between Mrs. OConnell and Tony and myself as Trustees.
I am puzzeled that the agreement is dated January 28, 1986 and that I have not received it earlier, also that your cover letter made no reference that the agreement was enclosed.
Yours truly, H. A. Higham"
1986.03.28 (H. A. Higham to Anthony OConnell)
"I have tried 8 times to make contact with Ms. Barnes, but she is always busy. I did not leave my name since I usually do not stay in the office long.
I reviewed your concerns with my CPA. He said I should persuade you not to worry. The statement of account filed to 12/31/84 sets the stage and the only changes which can occur are expenses ie. Real estate taxes and income dividends.
After my talk with Mr. White and based on the 12/31/84 statement of record also reviewed by Henry C. Matshall and the agreement signed by all - there is just no room for alteration. Any change from the point would prove fraud - that means jail.
Also there is no reason to make a final statement of account until the day of trust is established - taxes and expenses could not be computed.
Its up to you now - have faith do it!
Yours truly, H. A. Higham"
1986.10.15 (H. A. Higham to Anthony OConnell)
"After some extensive investigation it would appear there are several courses of action which would be considered for future development of this property.
Raw unplanned and unzoned property with significant flood plain exposure but with industrial potential uses is selling in a range of $1.00 to $1.50 per foot.
If the property were engineered, site planned and zoned accordingly but left undeveloped the value would double. The costs would range between
50 and 75 thousand with a minimum time frame of two years.
Actual development with streets and utilities could be considered after the zoning process which would again double the value but involve mega bucks.
I think the intent of our agreement with your mother would in no way be compromised by initiating the development process and is the practical and prudent duty of the trustees.
Personally, my position is that I would be willing to manage and pay for the process of site planning and zoning for one acre, of my choice, of usuable industrial land in say 1990. The reason is that my present position on Vine Street may become impractical to operate from when Metro opens in the early 1990's.'
Using very inexact numbers I would be spending $75,000 now t o return for $130,000 piece of property in the future. The O'Connell family would gain approximately $900,000 in land value - using today's dollars.
Think it over and let me know the direction you would like t o take.
But keep in mind a decision not to accept my offer in no way would affect our relationship or my commitment to carry out the responsibilities of co-trustee in the best interest of the O'Connell family.
Keep in mind also, that the offer would require some very technical legal work to protect everyone's interests . It would also require full, complete and honest disclosure to your mother and sisters together with,
I am sure, their signatures on documents.
Looking forward to your reply. Yours truly, H. A. Higham"
1986.12.01 (H. A. Higham to Jean OConnell)
"RE: Cinder Bed Road Property
Dear Mrs. OConnell:
I have had the opportunity t o do some in-depth study of the above referenced property and will here in present my conclusions.
From a meeting with Hazel, Bechorn and Hanes, zoning attorneys, I have learned that they represent the trustee owner of the Hunter property Mr. Mark Edwards. The Hunter property is being prepared f o r rezoning for townhouses. Since this zoning, if approved, would cut off industrial uses to the South of your acreage, obtaining industrial zoning is nearly impossible.
The value of raw unimproved and unzoned but probable townhouse lot acreage is $15,000.00 per lot. The county zoning allows 8 to 12 dwellings per acre for townhouses. Given all the factors of flood plain, usable ground, etc. one could expect 80 lots on your property which would place a fair market value of $1,200,000.00 when zoned.
Since developers are notorious for no cash, minimum risk purchases I offer the following guide lines for your consideration.
1. ALL CASH "DUMP PRICE" If you were to sell today with no contingencies the minimum acceptable cash market price should be $750,000.00.
2. CONTIGENT CONTRACT SALE - one year on zoning approval. If you were to accept a contract which was contigent on zoning approval for 75-80 townhouse lots the contract price should be a minimum of $1,000,000.00 with a $50,000.00 cash deposit . If the zoning was not approved the deposit should be refundable. However if zoning was not processed a t the end of one year or the contract purchaser backed out the deposit should be forfeited.
3. CONTIGENT CONTRACT SALE - More than one year. Same conditions as "2" but sale price $1,200,000.00.
Keep the property and l e t the Hunter property obtain its zoning. Be represented at all points of the zoning process t o be certain the Hunter design allows access to its streets and not Cinder Bed Road. This is very easy and the County will protect your interests if you make them known. It does require careful attention to various required notifications you must receive as being the adjacent landowner.
Once the Hunter property obtains zoning, your property is guaranteed similar zoning and the value will rise considerably.
I hope this lays out cleary what would be your best alternatives.
I would be happy to assist you in any way once you have made your decisions.
I have reviewed this with Mr. White. A copy of this letter will be sent to both Mr. White and Tony.
Yours truly, H. A. Higham
cc: Mr. Ed. White
Mr. Anthony OConnell"
1986.12.17 (H. A. Higham to Fairfax County)
"County of Fairfax
Director of Design Review
10555 Main Street
Fairfax, Virginia 22030
RE: Addition t o Amberleigh 3916-P-03-1
Sbj: Jean OConnell Property
Dear Mr. Birmingham:
I am a Trustee of the Estate of the late Harold O'Connell which owns property adjoining Amberleigh.
I have reviewed Amberleigh's site plan and feel it has serious harmful implications on the O'Connell property. Amberleigh's plan does not provide access to the O'Connell property.
Amberleigh surrounds the OConnell property on three sides and land-locks the OConnell property with its townhouse development.
Amberleigh has set the development tone forth is neighborhood as residential townhouse development and generally sets the same development mode for the O'Connell property as residential usage.
Because of this residential usage access by Cinder Bed Road which is all industrial is unsatisfactory even if Cinder Bed extended to t h e property which it does not.
I feel as Trustee for the owners the property must be accessed by a State road which in turn would access Beulah Street.
In addition I believe that the water retention systems. Design must be such as not t o visually or materially affect the O'Connell property together with its controlled flow run off.
I wait your response.
Yours truly, H. A. Higham
cc: Mrs. Jean OConnell
Mr. White - Attorney at Law
Mr. Joseph Alexander - Supervisor
Mr. A. OConnell - Co-Trustee"
1987.02.03 (H. A. Higham to Jean OConnell)
"I am following through with representing the interests of the
OConnell track with the Lee District Land Use Committee, Fairfax County Planning Commission and the Board of Supervisors.
I will advise.
H. A. Higham"
1987.02.03 (H. A. Higham to Anthony OConnell)
The Hunter property is up for rezoning - RZ86-L-073. This is a parcel of 245.19 acres which adjoins the O'Connell property at its southern boundry.
I have an appointment with Mr. Shapiro at Fairfax today to review their preliminary development plans and from that will evaluate how best their designs could serve to improve the OConnell track.
I will also attend the Lee District Land Use meeting tonight to express what would be best for the property t o g e t h e r with the County Planning Commission meeting February 12th and the Board of Supervisors meeting February 23rd.
With regards to Amberleigh's site plans, I have met with Mr. Rowzee, Design Reviewer for Fairfax County, and I think he fully understands our goals for access.
The result of all this is to attempt to influence surrounding development design to upgrade both access and zoning capabilities of the OConnell property and thereby significantly increase its market value.
Since to date I have spent many hours, and will spend many more t o follow through with the program, I am at the point where I need t o justify my time and efforts for some benefit other than the pleasure of helping out.
I have talked to numerous attorneys and real estate agents regarding what is customary and fair payment for my efforts. The most practical and fair to all in my opinion is called "value added." This approach works like this . . . you establish what is the fair market value of the property at the beginning of the process and when the property is ultimately sold the difference is value added. The person who positioned the property for the increased value shares in part of this value added as a percentage of the value added amount.
From what I can determine the fair market value was $350,000.00 from a tentative offer to your mother when we started this process. I am told that the percentages of sharing value added generally ranges about 33% but it seems too high. I suggest 25%.
This would mean for example, if the property sold for one million, the value added is $650,000.00 and my share would be $162,500.00. Expenses incurred, ie: zoning, site plans, and commissions would be shared, that is I would pay 25%.
Think it over . . . it could be a lot of money or very little. You would not in any way insult me or hurt my feelings if you choose to carry through yourself.
Looking forward to your response.
H. A. Higham"
1987.02.04 (H. A. Higham to Andrew Shapiro)
Zoning Evaluation Division
Office of Comprehensive Planning
10640 Page Avenue
City Square Building
Fairfax, Va. 22030
Attention: Andrew Shapiro
REF: Rezoning #RZ-86-L-073
Dear Mr. Shapiro:
I appreciate your cooperation in the file review of RZ-86-L-073.
As trustee for the property owners of parcel #l7 which is connected to the northern boundry of the applicants property I want to re-emphasize the importance of appropriate state road access.
Two review agencies have made written evaluation to emphasize this access:
Mr. John C. Herrington
Site Analysis Branch
Office of Transportation
Letter of December 23, 1986
Page 10, Footnote #3
"A stub connection needs t o be provided t o parcel #l7 in order to provide public street access to a potential residential development."
Mr. John N. Winfield
Department of Environmental Management
Letter of October 23, 1986
"Access OConnell property must be addressed."
I attended the Lee District Land Use Committee Meeting Tuesday, February 3rd, 1986 at which time the applicant postponed his presentation.
I would appreciate the opportunity to review the latest revisions of the applicants conceptual design when it is submitted to your office.
Please contact me when it becomes available a t (703) 971-5200.
H. A. Higham
CC: Mrs. Jean OConnell
Mr. White, Attorney at Law
Joseph Alexander, Lee District Supervisor
Mr. A. OConnell, Co-Trustee
Mr. Bob Lawrence, Hazel Bechorn and Hanes
1987.07.07 (Sales contract on Accotink from Fitzgerald & Walsh)
"FITZGERALD & WALSH
Real Estate Corporation
6265 Franconia Road
Alexandria, Virginia 22310
Telephone: (703) 971-1800
This Agreement of Sale made in triplicate this 7th day of July, 1987, between REAL ESTATE GENERAL ASSOCIATES, INC. (hereinafter known as the Purchaser) and JEAN M. O'CONNELL * See Attachment (hereinafter known as the Seller) and FITZGERALD & WALSH R.E.C. (hereinafter known as the Agent) WITNESSETH: That for and in consideration of the sum of TWENTY THOUSAND AND NO HUNDREDS DOLLARS ($20,000.00) by check in hand paid, receipt of which is hereby acknowledged, the Purchaser agrees to buy and the Seller agrees to sell for the sum of EIGHT HUNDRED FIFTY THOUSAND AND NO HUNDREDS DOLLARS ($850,000.00), all that certain piece, parcel or lot of land described as follows, to-wit:
Parcel #17 and located on Cinderbed Road, Newington, Virginia , and identified on Fairfax County Tax Map page #90-4-001 and as shown on attached tax map plat outlined in yellow and is part of this contract , said parcel containing approximately 15 acres more or less.
Terms of Sale:
Purchaser agrees to pay at settlement a down payment in the amount of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) of which the above deposit is a part. The balance of purchase money in the amount of SIX HUNDRED THOUSAND DOLLARS ($600,000.00) is to be a first deed of trust and note secured by the property given by the Purchaser and held by the Seller for a period of eight years at TEN percent (10%) interest per annum. Said Deed of Trust and Note of eight years is to be paid as follows: The first three years the payments on the $600,000.00 are to be made in monthly payments of interest only in the amount of $5,000.00 each month. The remaining five years (60 months) is to be paid in monthly installments of principal and interest payments in the amount of $5,790.18 which is amortized over a 20 year pay schedule. The balance of Trust at the end of said latter five years (60 months) of said Trust of principal and accrued interest is due and payable. Said Trust and Note are to have the usual provision used in the State of Virginia Deeds of Trust and Notes and to have a late payment penalty of five percent (5%) of said payment amount if not paid by fifteenth day after due date.
The balance of said Trust Note can be paid in part or full at any time without penalty.
This contract is contingent for a period of 30 calendar days from date of acceptance by Purchaser and Seller of this contract for a feasibility and economic or engineering study. Said study is to be at Purchaser's cost and in the event said study is not to the satisfaction of the Purchaser, then this contract at Purchaser's option is null and void and of no effect and all parties to this contract are released of any and all liabilities and the Ernest
Deposit is to be returned in full to the Purchaser. Seller will allow Purchaser to enter the property during said study period for such studies. The Purchaser will not cause any damage to said property and will restore any change to the land back to its original state.
In the event Purchaser has not notified the Seller that studies are not at Purchaser's satisfaction prior to the 30th day of study period, then the study period contingency is removed and this contract is in full force as to the contract terms.
The Seller agrees to convey the above property with a General Warranty Deed, same to be prepared at the expense of the Seller. Examination of title, conveyancing, notary fees, and all recording charges, including those for purchase money trust, if any, are to be at the cost of the purchaser.
Where trustees are to be named in a deed of trust or trusts the said trustees are to be named by the party respectively secured thereby.
All taxes, insurance, rents, and interest are to be prorated as of Date of Settlement.
The purchaser agrees to comply with the terms of sale herein within 60 days from the date of acceptance by owner or the deposit will be forfeited, in which event one-half of said deposit shall be paid to Seller and half to Agent.
Settlement to be made at the offices of to be selected by purchaser.
It is understood that the title is to be free and clear of all liens and indebtedness of every kind except the liens above mentioned. However, a reasonable time shall be allowed the Seller to correct any defects reported by the title examiner.
It is understood that the property to be conveyed subject to any restrictions now thereon.
Possession is to be given Settlement Date.
The Seller agrees to pay to the Agent cash for his services a commission on the sale price of the property at the following rate: Four percent (4%) of sales price and attorney handling this settlement is instructed to disburse to Fitzgerald and Walsh from proceeds of the settlement.
WITNESS the following signatures and seals made this day of , 19 .
PURCHASER: Real Estate General Assoc., Inc.
By J. H. Sills (SEAL)
J. H. Sills, Vice President
SELLER: * SEE ATTACHEMENT,
H. A. Higham. Trustee (SEAL)
Anthony Miner OConnell, Trustee (SEAL)
BY L. S. Fitzgerald, Agent Fitzgerald & Walsh
THIS CONTRACT OFFER REMAINS IN FORCE UNTIL MIDNIGHT JULY 22, 1987 AFTER WHICH TIME ITS VOID TO ALL PARTIES UNLESS ACCEPTED OR COUNTERED."
(Editing note: The following "ADDENDUM" and "Attachment" were added by Edward White. See Edward White's letter of July17, 1987)
DEED OF TRUST
Said note or notes will be secured by a Deed of Trust whose trustees will be designated by the Sellerss.
Within five (5) days of the signing of this Contract, Purchaser shall furnish to Sellers a financial statement upon the form provided and in addition shall furnish such other additional financial data as required by the sellers.
This contract is expressly contingent upon approval by the seller of the financial credit worthiness of the Buyer. Sellers shall have no more than five (5) days from the receipt of the requested data in which to reject this contract in the event of dissatisfaction with the financial information furnished. If at the end of the five (5) day period Sellers have not notified Buyer in writing of such a rejection, this contingency shall be automatically removed.
In the event of breach, the party at fault shall pay costs and attorney's fees, plus damages incidental to the breach such as: moving and relocation expenses, loss of deposit money, increased interest rates and lost interest earning opportunities.
The principals to this contract mutually agree that it shall be binding upon them, their and each of their respective heirs, executors, administrators, successors and assigns; that the provisions hereof shall survive the execution and delivery of the deed aforesaid' and shall not be merged thereon; that this contract contains the final and entire agreement between the parties hereto and that neither they nor their agents shall be bound by any terms, conditions, statements, warranties or representations, oral or written, not herein contained.
H. A. Higham. Trustee (SEAL)
Anthony Miner OConnell, Trustee (SEAL)
ATTACHMENT TO CONTRACT
JEAN M. O'CONNELL and HERBERT ANDERSON HIGHAM and ANTHONY M.
O'CONNELL, TRUSTEES OF THE RESIDUARY TRUST UNDER THE WILL OF
HAROLD A. O'CONNELL,
ACCEPTED BY SELLERS
JEAN M. O'CONNNELL
HERBERT ANDERSON HIGHAM, TRUSTEE (Seal)
ANTHONY M. OCONNELL, TRUSTEE (Seal)
1988.03.17 (H. A. Higham to Anthony OConnell)
"Enclosed please find contract we discussed yesterday.
After some considerable thought I would strongly recommend acceptance for the following reasons:
1. The $800,000. plus commission sale price is what I perceive the value to be if R2-86-L-073 is approved. If zoning is not approved you have no value.
2. Because of topography I think density will be at low end of PDH-3-4. This would mean 45.
3. Purchaser will have not only high development costs due to topography but have to wait for access before they can start - which I think will be three years at least. If you look at their carrying costs they will have a raw land cost I believe of at least $24,000 per lot by the time they can build.
4. The developer of this parcel must be able to market a home to compete with next door development. The next door developments have amenities such as pool, tennis etc. - this parcel none so price has to be right. Raw land costs has to be lower - house sale price lower to compete.
5. This is a hell of a lot more than the Hunter track raw costs per unit and not even a comparison to Miller and Smith's costs.
6. Finally if we are able to persuade your mother to let the children enjoy income flow from the trusts share of notes - this will spin off over $30,000 annually to them.
So that you know exactly where I am coming from - rest assured I have no interests in any of this at all in any way. Also do not let yourself be led by some pie in the sky advice. Value, especially on this parcel is in the eyes of the beholder. A market downturn, interest rates, and the overall economic outlook could change in a heartbeat and you could see this parcel's value evaporate.
This is a good price with fair terms by a substantial purchaser. There are excellent limited risks investments available which these funds could be converted to that are not influenced by the factors that influence this parcel.
I know from our phone conversation yesterday you are going to have a problem with this contract. Be sure you do your evaluation with your feet on the ground keeping utmost in mind the emotional roller coaster and value swings the property projected over the last couple years.
Give me a call.
1988.03.28 (H. A. Higham to Anthony OConnell)
"I rough drafted my letter this weekend. Need complete names & addresses of your sisters.
1988.06.11 (H. A. Higham to Anthony OConnell)
"I have enjoyed working with you and your family and hope that I have made some contribution. I will always consider you and your family as dear friends.
With you coming back t o Virginia there is naturally no need for me as co - trustee but I will always be available to offer my opinion anytime you ask.
I hope everyone understands that you assuming sole trustee is natural and exactly what your father directed. There are absolutely no hard feelings on my part and no reason whatsoever to have any. It has been both interesting and rewarding. I hope you will make available a copy of this to your mother.
Looking forward to seeing you in Virginia.
Yours truly, Andy H. A. Higham"