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Charlottesville residents sue city to block rezoning

After years of work resulted in a hard-fought victory for housing advocates, supporters of Charlottesville’s new zoning ordinance have yet another hurdle ahead.

Homeowners in the one of the city’s toniest neighborhoods filed a suit in Charlottesville Circuit Court on Jan. 16 seeking to block the new ordinance, passed by City Council in December, from going into effect next month.

In addition to City Council “misleading” the public, the suit filed by the Charlottesville law firm of Flora Pettit argues the city’s process did not comply with Virginia statutes, and therefore the new zoning cannot be enforced.

If the lawsuit succeeds, both the zoning ordinance and the city’s Comprehensive Plan, adopted by City Council in November of 2021, would be thrown out.

“The Virginia Code establishes strict substantive requirements that must be complied with by the City Council before enacting a zoning ordinance,” reads part of the 52-page suit. “Failure to comply with these requirements renders the ordinance void and invalid.”

There are nine plaintiffs listed in the suit: Edward and Susan White, Roy and Kristi Van Doorn, Michael and Lillian Bevier, Jenny Clay, and Thomas and Kemp Hill.

All of the plaintiffs are homeowners in the city, mostly residing in the Barracks-Rugby neighborhood. None of their residences are assessed below $750,000, with the most expensive being valued at more than $2.5 million.

Many of the plaintiffs also have high profiles. Lillian BeVier is a University of Virginia law professor and was a nominee to the U.S. Court of Appeals for the 4th Circuit under President George H.W. Bush; her nomination was never processed by the Democrat-controlled Senate at the time. Edward White is the David and Mary Harrison Distinguished Professor of Law at UVa, and his wife Susan, who practices family law in Charlottesville, is the daughter of John F. Davis, the former clerk of the U.S. Supreme Court. The Hills, listed as trustees of matching trusts in their names, were featured in a 2013 C-Ville Weekly story, in which Kemp Hill is quoted saying they were drawn to the property, which once served as an apartment building for UVa students, because, “There was a country feel to it that didn’t involve actually having to live in the country, the best of both worlds."

Their lawsuit argues that the city, or any Virginia locality, derives its powers from the General Assembly. Any actions taken by the city that do not comply with General Assembly legislation are invalid. To help make its point, the suit cites a 1997 ruling by the Virginia Supreme Court: “Municipalities in Virginia can only exercise those powers expressly or impliedly granted to them and only in the manner prescribed by the General Assembly.”

Attorney Michael Derdeyn, who is representing the plaintiffs, declined an interview request and referred The Daily Progress to the filing.

City Council failed to give “reasonable consideration” to the impact the zoning ordinance would have on traffic, water and other infrastructure, a violation of Virginia Code, the lawsuit says. Additionally, it claims that the Comprehensive Plan was not submitted to the Virginia Department of Transportation for review.

The plaintiffs argue these alleged failures render both the ordinance and Comprehensive Plan void.

The lawsuit claims that the plaintiffs will encounter “direct, pecuniary and substantial harm” as a result of the new zoning, arguing that because the plan will allow more homes to be built, density will increase in their neighborhoods, increasing traffic, noise and straining infrastructure. The plaintiffs purchased their properties in part because of their location in low-density neighborhoods, the suit says.

“Residents, who wish to remain in lower density areas, are being harmed and will continue to be harmed by increases in property taxes, noise and impact on light and quiet enjoyment,” reads the suit.

The filing claims that the plaintiffs’ neighborhoods were “singled out” by the zoning ordinance.

“Residents will suffer particularized harm not applicable to the public generally in the form of increased traffic and parking congestion, intensified storm water runoff and volume and tree canopy diminution,” reads the suit. “As a result, Residents’ properties will suffer noise, safety, flooding, as well as a loss of residential quietude that will not be suffered by the public generally.”

The Daily Progress could not reach Charlottesville city attorney Jacob Stroman for comment, but city councilor Michael Payne said the claims levied against the city are nothing new.

“I’m obviously not a lawyer, but the arguments raised in the suit are things we’ve heard for over year at this point,” he told The Daily Progress, adding that a similar suit was brought forward when the Comprehensive Plan was updated.

“I feel confident that counsel and staff did all due diligence necessary to follow the law, that these arguments aren’t accurate and the city did everything required with the community, VDOT, transportation issues and all other issues of the zoning rewrite,” Payne said. “Everything we did was legally defensible, and there are not any gray areas.”

Similar rezoning has produced similar suits elsewhere, Payne said.

“You look at Virginia and Arlington and across the country, after big zoning changes happen, it’s almost always followed by litigation,” he said. “That’s often the case with any big policy changes we see in the city.”

The lawsuit will be cheered on by the rezoning’s opponents, who have argued the city cannot handle the increased density the ordinance will bring and feel it will irreparably harm the city.

Housing advocates, on the other hand, say increased density means a higher supply of housing to meet higher demand, and lower costs for homebuyers and renters. Rezoning is a necessary and crucial step toward ultimately making housing more affordable for residents, they say. Livable CVille is among the advocacy groups who have championed the ordinance and celebrated its passing.

“Charlottesville’s new zoning code is the product of years of community input, debate and democratic processes,” Matthew Gillikin, the group’s co-chair, told The Daily Progress. “Just as the frivolous lawsuits to prevent the city’s disposal of racist statues and block the Comprehensive Plan failed, we expect ultimately the new zoning code will prevail.”

“The suit is a defense of the status quo by comfortably housed people and will perpetuate our area’s affordable housing crisis if successful,” he said.


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