The lawsuit challenging the city of Charlottesville’s recent "upzoning" has been given a 2026 trial date, and although the calendar may say that testimony is a year away, some courtroom drama has already begun.
The plaintiffs are now asserting that because the city’s lawyers missed a filing deadline that Charlottesville has already lost the case.
"The city has defaulted, no question about that, and we win," Jerry Cox told The Daily Progress.
Cox is a Charlottesville resident, but he’s also managing director of the Forerunner Foundation, an Arlington-based nonprofit organization that is challenging what it considers radical rezoning in cities across Virginia, including Arlington and Alexandria. The Forerunner Foundation has been helping the nine Charlottesville plaintiffs wage their suit against the city.
Even the city’s hired lawyers, in a court filing, concede that they missed the May 21 deadline to file their answer to the lawsuit’s amended complaint. In their most recent filing, two Richmond-based lawyers with the firm of Gentry Locke are blaming themselves for what they call "inadvertence."
"The undersigned outside counsel for the city acknowledges that there are not extenuating circumstances causing the delayed filing," admit the two lawyers, D. Scott Foster and Ryan J. Starks.
In their June 3 motion, the two men implore the Charlottesville Circuit Court to accept their tardy document, even though they filed it 13 days after deadline. They contend that there is "good cause," as they say they’ve been working in good faith, have refrained from mustering novel arguments and have been readily sharing pretrial information with the other side. They also note that the case raises issues of "substantial public significance that should be resolved on their merits."
Cox is unconvinced.
"The judge has the ability to excuse a late filing where there’s been some extraordinary circumstance, some extenuating circumstances," said Cox, "like the lawyer’s on his way to the courthouse to file it on the due date and gets run over by a beer wagon."
In this case, there was no beer wagon, but there have been multiple hearings, motions and reams of discovery documents produced. So legal expert David Heilberg doubts that in a case whose court file is beginning to swell "like a Manhattan phone book," as he put it, the judge would dismiss it due to one late filing.
"I don’t think he would be feel comfortable deciding on a default judgment after so much back-and-forth communication," Heilberg told The Daily Progress. "The judge in his discretion can be flexible in something like that."
Heilberg also expressed surprise that the plaintiffs’ lawyer Mike Derdeyn would file such a blunt motion.
"Things are usually more cordial than that," said Heilberg. "It’s likely that one or more of the clients insisted."
The nine clients, residents living in some of the city’s more upscale neighborhoods, include lawyers. The group filed suit in January 2024, one month after Charlottesville City Council approved a new zoning code, touting the rezoning as a way to bolster the housing supply in what is now Virginia’s second-most expensive real estate market which has been in a self-described "affordable housing crisis" since at least 2009.
The litigants have already prodded the judge, Claude Worrell. In January, they asked Worrell to recuse himself on grounds that he owns property in the city, that his wife has advocated for the rezoning and that judges in similar suits in other Virginia cities have recused. Worrell declined to quit the case.
Quitting, however, has become a pattern in the city attorney’s office:
John Blair left in 2021 after 31 months on the job.Lisa Robertson quit at the end of 2022 after 20 months on the job.And Jacob Stroman lasted just 14 months, several of them on administrative suspension, before his retirement last fall.
Responding to a Daily Progress inquiry, city spokeswoman Afton Schneider pointed to the hired attorneys, and not the city’s newly hired city attorney John Maddux, who took office just a week before the deadline, as the source of the missed deadline.
But Cox wonders whether city taxpayers are getting their money’s worth if contracted lawyers are missing deadlines. He said that Gentry Locke attorneys representing the city of Arlington on a similar case were routinely billing $400 per hour and one of them was charging $575 per hour.
"As a taxpayer, I’m not crazy about paying them to do stuff and then undo it," said Cox. "To me, what they’ve done here is really similar to when a surgeon operates on you and then leaves a sponge in your abdomen, and then you get sepsis from that, and then they cut you open and remove the sponge and hand you the bill for cutting you open and removing the sponge. I mean, that’s how I think Charlottesville taxpayers will feel about this circumstance."
A nine-day trial is set to begin June 22, 2026.
Source: www.dailyprogress.com
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