First hearing held for suit seeking voidance of Charlottesville Comprehensive Plan

A lawsuit calling for Charlottesville’s Comprehensive Plan to be declared invalid has had its first day in court. 

Charlottesville Circuit Court Judge Claude Worrell has partially granted a request from the City of Charlottesville that certain documents be added to the list of exhibits for another hearing scheduled for late August. 

In December, several anonymous plaintiffs filed suit against Charlottesville and the City Council seeking a declaratory judgment that the Comprehensive Plan adopted on November 15, 2021 should be voided based on four counts. (read that complaint)

In April, the city responded with what is known as a demurrer that seeks to dismiss the case based on a claim the plaintiffs have no legal standing to have filed the case. A hearing for that is scheduled for August 26. (read the demurrer)

The city has also filed a separate motion requesting identification of the plaintiffs but have agreed with the plaintiffs’ attorney, Mike Derdeyn of the firm Flora Pettit, that that motion will be taken up after a ruling on the demurrer. 

Craving Oyer

Friday’s hearing was based on a third motion from the city “craving oyer,” a legal term for the city’s request to add five documents as exhibits to the plaintiff’s complaint. They wanted the following to be attached: 

• A copy of the entire Comprehensive Plan adopted on November 15, 2021
• The record of the October 12, 2021 Planning Commission meeting where that body recommended the plan “including public hearing notice, public hearing speakers, public hearing attendees” and minutes and video
• The legislative record of the November 15, 2021 Council meeting, with everything above plus proposed resolutions
• “Public records identifying the persons who attended the November 15, 2021 public hearing”
• The written comments of the Virginia Department of Transportation for the plan as required by § 15.2-2223(B)4 (link to statute)

City Attorney Lisa Robertson represented Charlottesville at today’s hearing and in her argument she cited the case of Byrne v. Alexandria in which the Virginia Supreme Court affirmed a lower court ruling upholding the city of Alexandria’s request for certain documents related to a land use decision. (read the opinion penned by Senior Justice Charles S. Russell)

In this case, Robertson argued that having a list of attendees at Council’s public hearings on November 15 would be used by the city to demonstrate a claim that the plaintiffs can’t argue that public notice was not sufficient. 

“Actual participation waives the right to challenge the validity of the proceedings,” Robertson said. 

Derdyn argued the city has misread the Byrne v. Alexandria case which was based on a claim that the city of Alexandria’s action was “arbitrary and capricious.” He said in this case, the plaintiff’s allege the Comprehensive Plan is incomplete and should be voided because of four specific claims:

• The plan is too specific and not “general in nature” as required in § 15.2-2223(A)
• The plan did not adequately consider manufactured housing as a source of affordable housing as required in § 15.2-2223.5
• The adoption of the plan did not comply with public notice requirements as stated in § 15.2-2204(A)
• The plan does not include a transportation plan to support expanded development called for in the plan as required in 15.2-2223(B)1

“The issue is does this Comprehensive Plan contain the elements required,” Derdyn said. 

Derdyn said he had no objection to introducing the Comprehensive Plan as an exhibit, but said the other requested items would be “extraneous evidence.” 

In her rebuttal, Robertson said the plaintiff’s complaint had “the flavor of arbitrary and capricious” by arguing that the transportation plan was not complete. That’s the reason for the city’s request for VDOT’s comments on the Plan. That information is not included in either the Planning Commission packet for the October 12, 2021 meeting or the City Council’s November 15, 2021. 

Judge Worrell granted the city’s request to add the following as exhibits: the Comprehensive Plan; a list of people who attended the November 15, 2021 City Council public hearing; and the letter from VDOT. 

However, Judge Worrell did not grant the request for the public records to be added at this time. 

“This Court finds that #2 and #3 may be evidence, but not now,” Worrell said. 

Judge Worrell asked both parties if they were ready to proceed with a hearing on the demurrer, but both indicated they would wait until August 26.

A note on this story

This story was originally published on July 16, 2022 for paid subscribers of the Charlottesville Community Engagement newsletter. One of the perks subscribers get is a first look at the occasional story. I was the only member of the press in the court room, a place where you can’t record and can’t type on a keyboard. I had to get it written quickly as my notes were handwritten and I had to capture it fast.

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