The lawsuit seeking to reverse Charlottesville’s recent rezoning is on the verge of failing after City Council announced plans to vote Monday to approve a settlement satisfying one of the plaintiffs’ demands: a traffic study.
With that demand met, the implementation of the new zoning ordinance aimed at “upzoning” the city and increasing the supply of affordable housing now appears certain.
”The end of this lawsuit is a net positive for the housing market in Charlottesville,” Neil Williamson, president and executive director of local public policy nonprofit group the Free Enterprise Forum, told The Daily Progress. “The lawsuit had been putting a cloud of uncertainty over redevelopment in Charlottesville that was chilling new investment.”
City attorney John Maddux expressed support for the settlement in a memo to Council, because, he wrote, the ongoing litigation would be expensive and carry some risk of losing.
”This proposal, where the City will provide certain traffic information in exchange for dismissal of the case, offers a practical and cost-effective path forward,” Maddux wrote.
The cost of the proposed traffic study was not immediately available.
With the matter close to resolution, one of the lawsuit’s most vocal proponents was blunt in his assessment of who has won and who has lost.
Jerry Cox is not only a Charlottesville resident; he is the managing director of the Forerunner Foundation, an organization which has been assisting the nine plaintiffs battling the city — as well as residents in Arlington County and Alexandria challenging their own new zoning codes.
”It’s not a settlement,” Cox told The Daily Progress. “It’s a total capitulation to the city and developers.”
This is widely seen as a case of NIMBYs versus YIMBYs, those who say “Not in my back yard” versus those who say “Yes, in my back yard,” neighborhood character and continuity versus additional housing supply in the hope of filling the so-called missing middle.
Three and a half months ago, the battlefield was different. The presiding judge told the plaintiffs they’d won, that because the city’s contracted legal team failed to meet a certain filing deadline they had secured a default judgment.
So how did these plaintiffs snatch defeat from the jaws of victory?
The turnaround actually began June 30, the day that Judge Claude Worrell announced the default judgment. Immediately after making the ruling that would have voided the new zoning ordinance, Worrell gave the city permission to move for reconsideration. Back inside Charlottesville Circuit Court seven weeks later, Worrell reversed his earlier decision and allowed the case to proceed.
By then, the city indicated it was prepared to simply readopt a new zoning ordinance. While some NIMBYs had seven weeks to relish and celebrate, some YIMBYs were urging the city to enact a new ordinance incentivizing as much — or more — density as the original, which took effect in February of 2024.
The plaintiffs’ lawyer Michael Derdeyn told The Daily Progress on Friday he was not yet authorized by his clients to comment. The only plaintiff The Daily Progress reached, Michael BeVier, said that he would share the group’s reasoning after City Council’s vote.
Cox said he couldn’t be sure what motivated the plaintiffs to offer such a lopsided outcome, but he raised several prospects: the expense of litigation and prior rulings by Worrell that limited the counts on which the lawsuit could proceed. Worrell had winnowed the case down to two questions: Did the city consider its infrastructural capacity, and did the city break state law by not conducting a traffic study to share with the Virginia Department of Transportation?
”The City continues to believe that such submission to VDOT is not required by Virginia law, and that it complied with all substantive and procedural requirements when it adopted the NZO,” the city wrote in a Friday statement to The Daily Progress. “It is, nevertheless, willing to make the agreed upon submission to VDOT to settle this matter.”
VDOT’s position is that the decision to determine whether a traffic study was required was left to the city. For Cox, the focus on a traffic study is merely the plaintiff’s last stand.
”The whole point of the lawsuit was not to get a traffic study,” said Cox. “The point of the lawsuit was supposed to be to keep the developers from running rampant and destroying neighborhoods in Charlottesville.”
Cox clarified Friday that his group’s support of the Charlottesville plaintiffs was not in money for litigation but primarily in research and messaging. He pointed to a YouTube video his group recently posted with a dire warning.
”If we don’t shut it down in court, get ready,” warns the video’s narrator. “A six-plex could be coming to a neighborhood near you.”
While that video ends with examples of infill housing in Arlington failing to fulfill hopes of affordability, density supporters contend that other cities, such as Austin, Texas, that have encouraged development are now reporting falling apartment rents.
Both friends and foes of the new ordinance suggest that Charlottesville projects will now advance more swiftly.
”That lawsuit is lost,” said Cox. “That lawsuit has accomplished nothing other than giving the developers some pause.”
Source: www.dailyprogress.com