Judge Sides With Comstock In Fight Over Nearly 5 Acres In Downtown Herndon

RESTON, VA — Reston-based Comstock prevailed in a legal battle with the Town of Herndon over nearly five acres of downtown property after a Fairfax County judge ruled that the town does not have the right to reclaim the land from the developer.

Fairfax County Circuit Court Judge Tania M.L. Saylor granted Comstock Herndon Venture LC's motion for summary judgment and denied Herndon's competing motion in a Sept. 17 opinion letter obtained by Patch.

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At the center of Saylor's ruling is a difference between a proposed deed referenced in the parties' development agreements and the deed that was actually used when Herndon transferred the property to Comstock in December 2020.

"For the reasons stated herein, the Court finds that the Comprehensive Agreement and Amendment were not collateral, were extinguished upon execution of the Deed, and therefore Herndon is not entitled to a reconveyance of the Property," Saylor wrote.

Final Deed Did Not Include Re-Entry Provision

Herndon selected Comstock as its development partner and entered into a comprehensive agreement in November 2017 to redevelop approximately five acres in downtown Herndon.

The project envisioned 280 residential units, street-level retail, a 763-space parking garage, pedestrian plazas and an 18,000-square-foot arts center.

The parties amended the agreement in December 2020. Among other provisions, the amendment gave Comstock an option to issue a "Notice Not to Proceed" and said Herndon would have a right of re-entry described in a form deed attached to the original agreement.

Herndon conveyed the property to Comstock by special warranty deed on Dec. 14, 2020.

But Saylor found that the deed the parties actually executed was not the form deed attached to their original agreement.

The final deed contained no right-of-re-entry provision and did not incorporate such a right by reference, the judge found.

RELATED: Herndon Sues Comstock Holdings To Regain Downtown Property

Saylor applied Virginia's "merger doctrine," under which a deed generally becomes the final expression of a real estate transaction and inconsistent provisions in earlier agreements do not survive.

The judge found the final deed and the earlier agreements to be in "patent and irreconcilable conflict" concerning possession of the property.

"Herndon's failure to utilize the form deed attached as Exhibit C to the Comprehensive Agreement or one like it, is fatal to Herndon's position," Saylor wrote.

Saylor also rejected Herndon's argument that references to the comprehensive agreement and amendment in the final deed preserved the town's rights under those agreements. She found those references appeared only in factual introductory clauses and did not clearly make the agreements and deed part of the same transaction for purposes of preserving the re-entry provision.

Comstock Keeps Control Of Property

After multiple extensions of the project's development timetable, Comstock issued a Notice Not to Proceed on Dec. 6, 2024.

Herndon responded Jan. 23, 2025, by attempting to exercise the right of re-entry contained in the earlier agreements and requesting that Comstock return the property.

Comstock refused, and Herndon sued in Fairfax County Circuit Court on July 11, 2025.

The town sought specific performance requiring Comstock to return the property. Herndon also initially asked the court to declare that it did not owe Comstock predevelopment costs, although it later nonsuited that portion of the case.

Both sides filed motions for summary judgment in January. Following arguments Feb. 27, Saylor concluded there were no material facts in dispute and that the case could be decided as a matter of law.

Her Sept. 17 final order granted Comstock's motion for summary judgment and denied Herndon's.

Herndon Mayor Keven LeBlanc said Saturday that the town strongly disagreed with the decision and was preparing for additional legal steps.

"For now, the ruling leaves a large corporate developer in control of nearly five acres at the very heart of our community, a property that they chose not to develop as promised," LeBlanc said.

"This is not the end of our fight," he added.

LeBlanc did not specify what legal action the town plans to take next.

The final order allowed objections to the ruling to be filed within 10 days and set a Sept. 25 status hearing before the case was to be removed from the docket.