Tag: Zoning code

One month after City Council approved a new zoning code that allows more residential density across Charlottesville, a group of property owners filed a lawsuit arguing they would be harmed by the changes. 

Last week, Charlottesville Circuit Judge Claude Worrell dismissed two of the four counts in White v. Charlottesville but left room for further hearings on the other two. 

“Plaintiffs have provided a sufficient question of fact for the Court to hear evidence regarding the promulgation of the new zoning ordinance,” Worrell wrote in a three-page ruling dated November 12.

One of the open questions under Virginia law is whether the new development code was “drawn and applied with reasonable consideration for the existing use and character of property,” including a review of transportation requirements and other public services. 

So far, all of the legal proceedings have dealt with a motion from the city that states the plaintiffs have no merit and no standing to sue. Each owns a lot that now allows six or eight units rather than the one permitted under the old zoning. 

Worrell concluded the plaintiffs have the right to bring the case, and his invitation for evidence relates to the question of whether Charlottesville followed state regulations. 

In his ruling, Worrell also said if both parties are prepared to proceed without submitting new evidence, he would be ready to “rule as to the sufficiency of the suit as a matter of fact and law.”

The property owners want their day in court. 

“The plaintiffs expect to present evidence regarding the promulgation of the new zoning ordinance at a trial on this matter,” said Mike Derdeyn, the plaintiffs’ attorney.

When asked if it would submit anything new, Afton Schneider, Charlottesville’s director of communications and public engagement, said the city does not comment on pending litigation. 

In late September, Fairfax Circuit Court Judge David Schell ruled against a provision added to Arlington County’s land use regulations that had the same intent as Charlottesville’s development code—to increase the number of places people can live. Schell, a retired judge, was assigned to the case after Arlington judges recused themselves because they are homeowners. Worrell, a property owner in Charlottesville, did not recuse himself.

Part of Schell’s ruling against Arlington’s Expanded Housing Option program hinges on the same section of state code that has kept the Charlottesville case alive. Arlington County has indicated it will appeal the ruling. 

According to the website ARLNow.com, Schell’s ruling will permit several dozen units being built under the EHO program to proceed, but he warned they may one day need to be torn down depending on how the appeals process works out. 

A handful of “major development plans” have been filed with the City of Charlottesville, including the conversion of 303 Alderman Rd. from a single-family house to six townhomes and a by-right request to build 24 units at 2030 Barracks Rd.

The waiting game continues for a lawsuit filed earlier this year that seeks to nullify Charlottesville’s new zoning code. 

A group of residents filed suit against Charlottesville in January alleging that city officials failed to follow state guidelines to study the impacts higher residential density allowed in the Development Code would have on transportation infrastructure. The land-use rules were rewritten shortly after City Council adopted a new Comprehensive Plan on November 21 that called for more housing across the entire city. 

“A comprehensive plan and zoning ordinance must be submitted to [the Virginia Department of Transportation] for review when [they] will ‘substantially affect’ transportation on state-controlled highways,” wrote attorneys with the firm Flora Pettit in a filing with Charlottesville Circuit Court in late August. 

This spring, Charlottesville responded with a motion seeking to dismiss the case arguing that the plaintiffs do not have the right to sue, and added they cannot prove they will be harmed by the new rules. 

After a 90-minute hearing in late June, both sides filed written closing statements to inform Circuit Court Judge Claude Worrell’s eventual opinion. Lawyers with the firm Gentry Locke argue the suit should not proceed to trial.

“Plaintiffs do not like the policy choices in the new zoning ordinance,” the Gentry Locke attorneys wrote in their recent filing. “The City followed the process in enacting the NZO. The Plaintiffs, therefore, rely on strained legal theories and ignore facts in their effort.” 

Attorneys for the city also argue that Charlottesville followed the rules when submitting the mobility chapter of the Comprehensive Plan to VDOT, a key claim made by the defendants. 

“Plaintiffs cannot now—more than two years after the fact—fault the City for failing to double-check VDOT’s work product,” the closing argument continues. 

Flora Pettit attorney Michael Derdeyn represents those plaintiffs, as well an anonymous group that previously sought to overturn the Comprehensive Plan based on many of the same arguments. He argues that VDOT review should have been based on the theoretical maximum of new housing units that could be built under the new code. 

“There can be no question that the City failed to comply with its obligation,” Derdeyn wrote.

That will be up to Judge Worrell to decide, and a ruling will be issued at some point in the near future. 

Meanwhile, developers have slowly begun taking advantage of the provisions in the new code that allow more density without asking City Council for permission. That includes six units planned to be built at 303 Alderman Rd., a property that had been zoned for single-family residential but is now in the Residential B district. 

Another plan, submitted for land behind the Meadowbrook Shopping Center, will be the first to take advantage of bonus rules if units meet the city’s affordability guidelines. 

A firm called Greenshire Holdings has filed a major development plan to build 24 units on what is now an 0.83-acre lot at 2030 Barracks Rd. The materials sent to the city include a request to subdivide the property into two lots with 12 units to be built on each. 

No traffic management plan would be required because the total amount of construction is under the 50,000 square-foot threshold that would trigger one.