A lawsuit against the City of Charlottesville alleging the Comprehensive Plan adopted last November is invalid can proceed, but Charlottesville Circuit Court Judge Claude Worrell on Friday dismissed three of the plaintiff’s four counts.
Worrell agreed that the city may not have provided sufficient language in the notice for the November 15 City Council public hearing by not stating a vote would be held and by not adequately describing what “updated density” might mean.
However, Worrell agreed with the city’s request that seven anonymous parties did not have the legal standing to argue against the plan for insufficient consideration of transportation, the use of manufactured housing, and whether the plan was too specific in nature.
A motion on whether the plaintiffs should be identified will be taken up later this year as the case proceeds.
The case so far
The plaintiffs filed the suit in Charlottesville Circuit Court on December 15, one month after City Council adopted the revised plan and within the 30 days required for a suit to be filed.
The seven anonymous parties had made four broad arguments about the plan and cited specific provisions of the state statute that governs Comprehensive Plans. (read the original suit)
- The plan failed to be “general in nature” (Count 1)
- The plan failed to incorporate “strategies to promote manufactured housing as a source of affordable housing” (Count 2)
- The plan failed to comply with specific notice requirements (Count 3)
- The plan failed to “designate a system of transportation needs and recommendations that include the designation of new and expanded transportation facilities.” (Count 4)
The city responded with three motions filed April 7. One was a “motion craving oyer” which means the city wanted more exhibits added to the original complaint. Judge Claude Worrell granted some of what the city wanted at a hearing on July 19, as reported by Charlottesville Community Engagement at the time.
The city also filed a request to identify the plaintiffs, as well as a demurrer that argues the complaints are not sufficient enough to base a legal claim.
“Nothing in the plain language of any of the statutory provisions within Title 15, Article 3, supplies any of the Plaintiffs an implied right of action against the Defendants,” reads paragraph 2 of the demurrer. (read the demurrer)
One of the plaintiff’s arguments is that the Comprehensive Plan “radically increases density within the City and identifies new zoning districts on a parcel-by-parcel basis.”
The demurrer points out the new Comprehensive Plan makes new designations for future land use, which is not the same as rezoning.
“The regulatory provisions that legally restrict the use of any of the Plaintiff’s individual parcels are determined by each parcel’s zoning classifications, a matter that is designated on a different map that is a component of the zoning ordinance,” the demurrer continues in the response to plaintiff’s count two.
The rezoning process is underway with the release earlier this summer of the Zoning Diagnostic Approach and Report as well as an inclusionary zoning policy.
The motion requesting identification argues that the plaintiffs have not met the legal bar required for anonymity and should be identified.
“Upon information and belief, Plaintiffs wish to proceed anonymously to avoid potential embarrassment or public criticism for opposing increased residential density—and more types and units of housing affordable to low- and moderate-income persons—within their neighborhoods,” reads paragraph 7 of that motion.
The hearing took place in the lower court room in the Charlottesville Circuit Court on High Street. In addition to this reporter, two other members of the public were in attendance including a member of the city’s Planning Commission.
The city was initially represented by Deputy City Attorney Robinson J. Hubbard, who argued that the Virginia state code does not specify much about how Comprehensive Plans should be implemented. He said such plans are to be advisory in nature and their enactment does not change any underlying property rights. That happens at the zoning level.
“Until that happens, plaintiffs are without an option,” Hubbard said.
Judge Worrell asked Hubbard if he thought that increased property assessments would be considered a harm. Hubbard responded that even if they were, the call for more density in the Comprehensive Plan would increase all property owners’ assessments and so the harm could not be considered “particularized.”
“Increasing density and property values are things that most landowners want,” Hubbard said.
Hubbard said that because the zoning has not been updated, any harm is speculative and must be addressed at a later date.
Hubbard also addressed the plaintiff’s first count that the plan was too specific in nature.
“A plan must necessarily have some detail or it is not much of a plan,” Hubbard said. He said the General Assembly has not specified guidelines for the process and that the city acted within its power to make future land use designations.
With regards to manufactured housing, Hubbard conceded the Comprehensive Plan process did not take that into account but that was not sufficient grounds to render the entire plan void. Later in the hearing, City Attorney Lisa Robertson would point out that requirements to take manufactured housing into the plan were adopted by the General Assembly in 2020, after the Cville Plans Together initiative had already gotten underway.
Robertson took up the transportation component and said that the state statute was broad enough to cover all kinds of localities in Virginia – rural, suburban, and urban. She noted that in urban communities, few new roads are expected to be built and those that are built by developers and then turned over to localities for maintenance. Robertson said plans are general in nature.
“The Comprehensive Plan is a planning document and does not require the city to do anything,” Robertson said.
However, she added much of the implementation of the plan comes through mechanisms such as the capital improvement plan process, review of site plans, or approval of new property subdivisions.
She referred to another section of state code that governs the legal status of Comprehensive Plans, and noted that Planning Commissions are often asked to determine whether a new project is consistent with the Comp Plan.
“The Comprehensive Plan is a business plan,” Robertson said. “It’s a living document that can be amended from time to time.”
Robertson said a future City Council can make changes and that in no case could the plaintiffs allege an actual harm.
“There is no site plan denied,” Robertson said. “No building permit denied.”
Robertson also said there were no Constitutional issues involved, a claim Derdeyn would dispute.
Representing the plaintiffs
Derdeyn said several of his plaintiffs have suffered harm in the form of higher property values that they don’t want based on being designated for either Middle Intensity Residential or High-Intensity Residential. He said some of these neighborhoods were “singled out” and that is a particularized harm.
“The value of that property is going to be increased at a much higher rate than anyone else,” Derdeyn said. “It is an actual injury. The harm is a consequence of a Comprehensive Plan that went parcel by parcel.”
Worrell pushed back on this notion and Derdeyn stated that many of the property owners purchased their land because it was for single-family housing and that others might purchase land to tear down existing units.
“I don’t agree that that’s harmful,” Worrell said.
Worrell also said that the place for someone to sue on this basis would be at the zoning level, not at the Comprehensive Plan level.
Much of the discussion on public notice centered about a case known as Glazebrook v. Bd. of Supervisors of Spotsylvania County which reviewed whether a public hearing notice contained sufficient description of “development standards” for a later decision to be valid. The plaintiff argued no, and the Virginia Supreme Court would legally affirm that point of view.
In this case, Worrell was sympathetic to the argument that the public notice published in the Daily Progress was not sufficient. One phrase in the notice reads: “This update provides for updated density ranges throughout the City.”
Derdeyn said that could have meant anything and that the notice failed to adequately describe the impacts of the plan and also did not state that a vote would be taken on November 15.
“You can’t tell if they are holding this [public hearing] to get public opinion or to take a vote,” Derdeyn said. “The notice does not make it clear what density means. There need to be additional words.”
Worrell asked Derdeyn if those additional words would be sufficient.
“It would be closer,” Derdeyn said. “In this case, notice should have stated all parcels would increase in density.”
Derdeyn said any property owner would have standing to file a complaint 30 days after adoption. In this case, Charlottesville’s Comprehensive Plan update was unusual.
“This is a different plan than you usually see,” Derdeyn said, adding that by designating specific parcels in the Future Land Use Map, the city began the process of zoning. He said that was the unconstitutional action.
“Establishing precise boundaries is the function of the zoning process,” Derdeyn argued. “That is what is causing the harm.”
As for the transportation count, Derdeyn said the city simply recycled old plans and did not produce a new plan to demonstrate how it would address the impact of additional density. These include the 2015 Bike and Pedestrian plan, the 2016 Streets That Work Plan, and a list of several small area plans that have since been appended to the Comprehensive Plan.
“These were old plans that were already on the books,” Derdeyn argued.
However, Judge Worrell said he did not believe the city had to “reinvent the wheel” in order to satisfy the state statute on the Comprehensive Plan.
Judge Worrell noted that most of the case law cited dealt with zoning laws, not adoption of Comprehensive Plans. In his ruling on the demurrer, he first sustained the city’s request on Count 4 related to transportation. After a moment’s pause, he sided with the city on the question of Count 1 and Count 2 because harm had not been demonstrated.
“There is no justiciable controversy for the court to resolve,” Worrell said.
However, Worrell did not grant the city’s demurrer on notice (Count 3) based on an insufficient description of “updated density” as well as not specifying whether a vote would take place.
City Attorney Lisa Robertson sought to challenge Worrell on the matter, but the judge was firm and said it was possible the matter would be appealed in the future after a definitive review of the case’s merits.
“I am the first to state that the notice should say when the vote will happen,” Worrell said. “I will be told whether I am right or wrong.”
Lawsuits cited during the hearing:
- Huber v. Loudoun County
- Kansas Lincoln v. Arlington County Board
- Cupp v. Board of Supervisors of Fairfax County
- Staples v. Prince George County
- Fairfax County v. Snell Corp.
- Town of Jonesville v. Powell Valley Village
- Glazebrook v. Bd. of Supervisors of Spotsylvania Cty
- Gas Mart Corporation v. Board of Supervisors of Loudoun County