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Refreshed lawsuit aims to derail 119-unit Charlottesville apartment project

In a second attempt to prevent construction of a seven-story apartment complex on Jefferson Park Avenue in Charlottesville, nine homeowners in the surrounding neighborhood are hoping a judge will side with them in a lawsuit.

They claim that City Council “acted in an unreasonable, arbitrary and capricious manner,” when it approved a special use permit allowing a developer to construct a 119-unit complex on the 2000 block of Jefferson Park Avenue.

“Each of the Plaintiffs will suffer acute and particularized harm to their personhood and property should the JPA Project go forward, including the impact on traffic and reduced property values,” reads the filing.

The group’s first attempt at using the court to derail the student housing project was shot down when the city of Charlottesville, the defendant in the case, filed a demurrer, a pretrial defense challenge to the suit’s legal grounds.

A judge sustained the demurrer in May 2023, keeping the case from going to trial.

“The plaintiffs have failed to state a sufficient basis,” Charlottesville Circuit Court Judge Claude Worrell said at the time.

But the demurrer was sustained without prejudice, meaning the plaintiffs had the opportunity to amend their complaint and try again. They did so last August.

In their original filing, each of the plaintiff’s was acting as their own lawyer. But this time they’ve retained the services of attorney Dave Thomas of the Michie Hamlett law firm.

Thomas did not respond to requests for comment, but the refreshed suit argues City Council made a decision that was “inconsistent with good zoning practices.”

“The special use permit is a gross deviation from current zoning regulations: it nearly doubles the by-right height and more than triples the by-right density for this location,” reads the lawsuit.

Plaintiffs worry the project would overwhelm the residences around it, adding noise and traffic and reducing parking for the neighborhood.

Council approved the rezoning in September 2022 in a 4-0 vote.

The planning commission was more split on the matter, recommending Council approve the application in a 4-3 vote.

As the plaintiffs note, city staff had some concerns about the proposal submitted by Aspen Heights, a Texas-based developer.

“Staff believes the scale and density of the development is not harmonious with the existing patterns within the neighborhood,” reads a staff report.

While the lawsuit includes that line, it omitted one that immediately preceded it: “Based on the surrounding uses, staff believes the ‘use’ of multi-family residential on the Subject Properties is harmonious with the existing patterns of development.”

The project falls within one of the city’s entrance corridors, and city staff determined the corridor would not be adversely affected by the height of the project. Any impacts, staff wrote, could be “adequately mitigated” by a number of design guidelines. Among the guidelines staff suggested: the developer work with the city on a parking plan, that trees and shrubs be planted as a buffer between the building and surrounding properties, that a new sidewalk be built, and that the structure be moved further back from the property line.

Those guidelines were included in the planning commission’s recommendation and in City Council’s ultimate approval of the application.

Commissioners Jody Lahendro and Taneia Dowell were both hesitant about the project. Lahendro wanted a bigger buffer, and Dowell wanted the developer to make a larger contribution to the city’s affordable housing fund. Ultimately, the developer raised its contribution from $484,000 to $1 million.

In response to the resurrected lawsuit, the city has again filed a demurrer. A judge is scheduled to make a ruling on May 8, and the plaintiffs hope it will be overruled so that the case can go to trial and they can have the chance to argue the project is “inconsistent with good zoning practices” in court.

“This is a highly fact specific determination, and one which will require testimony from experts in the field,” plaintiffs wrote in their opposition to the demurrer.

The city contends that the case should be thrown out, saying that the project was only approved after two city staff reports, months of communication with the developer and hours of public comment.

“Because [plaintiffs] believe that City Council should have reached a different result after considering those factors, City Council must have acted unreasonably in approving the Special Use Permit,” reads the city’s court filing. It disputes that argument, claiming that Council actually “engaged in a deliberative process that was the antithesis of arbitrary and capricious.”

The city’s filing mentions comments that planning commissioner Rory Stolzenberg and councilor Michael Payne made during public meetings before approval of the project.

The planned site is on the crest of a hill, and therefore one side of the building will be five stories. Stolzenberg noted that there is already an existing 4 1/2-story building on that side of the proposed project.

After visiting the site himself, Payne said, “It is very clear that density already exists in that corridor. This is a corridor where density is a positive thing.”

This is not the only zoning issue the city is fighting in court.

After City Council approved a sweeping change to its zoning code, allowing more density throughout Charlottesville, multiple homeowners filed a lawsuit claiming the city “misled” the public and did not comply with Virginia statutes during the approval process.

The city filed a demurrer in that case too. It is scheduled for a hearing on June 22.

Depending on how the judge rules, the case could effectively be dismissed or it could go to trial. If the plaintiffs were to win in trial, the zoning ordinance as well as the city’s Comprehensive Plan, adopted by Council in November of 2021, would be thrown out.

When the demurrer in the JPA case was sustained in May 2023, two of the plaintiffs shared their worries with The Daily Progress.

“I don’t know that I’ll be able to tolerate two years of noise and dust,” Anne Benham said of the proposed construction. “There is collateral damage, and we are it.”

Ellen Contini-Morava said the apartment would tower over all the surrounding homes.

“It’s a monster,” she said.

In a statement to The Daily Progress, city spokeswoman Afton Schneider said the special use permit aligns with the city’s goals of creating more density, particularly on Jefferson Park Avenue near the University of Virginia.

“Virginia law supports the proposition that Zoning decisions, including the issuance of Special Use Permits (SUP’s) are legislative acts that should be upheld by the Courts unless clearly ‘ultra vires,’” Schneider wrote. “We expect to prevail.”


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