Lawsuit filed seeking voidance of Charlottesville’s new zoning code

Pleading argues city did not comply with state code to report density increase to VDOT

A group of Charlottesville property owners has filed suit against the City of Charlottesville for the December 18, 2023 adoption of a new zoning code (NZO) intended to increase development rights on almost every single parcel of land. 

“The NZO empowers developers to tear down existing houses and replace them by-right with 3 dwelling units per lot in the [Residential-A] zoning district, 6 dwelling units per lot in the [Residential-B] district, and 8 dwelling units per lot in the [Residential-C] district,” reads the pleading’s introduction. (read the pleading)

The plaintiffs argue this could create as many as 62,000 additional housing units and estimate that could bring in another 150,000 residents. They claim the city was required by Virginia code to make preparations. 

“Despite advocating for this enormous increase in density, City Council failed to conduct any studies about the impact of the NZO on the City’s transportation, schools, water, sewer, public services or infrastructure, among other things,” the pleading continues. 

Also named in the request for declaratory judgment are the City Council and the Charlottesville Planning Commission. 

The plaintiffs argue that the city did not follow Virginia code when adopting the new ordinance, citing the 1997 Virginia Supreme Court ruling in Town of Jonesville v. Powell Valley Village.  Much of the pleading rests on an argument that the city failed to follow state code to coordinate state and local planning on transportation improvements. 

The first claim in the lawsuit is that the zoning code is invalid because the Comprehensive Plan that it implements is also claimed to be invalid. However, there has been no ruling yet in the second of two lawsuits filed that seek a ruling on that argument. 

In August 2022, Circuit Court Judge Claude Worrell dismissed three out of four counts in the first lawsuit filed. The one that remained was that Council failed to provide sufficient notice. The city’s response was to amend and re-adopt the plan on January 17, 2023.  (read that resolution)

Attorney Michael Derdeyn filed a second suit and served Council and city officials with it on February 13, 2023. By that time, former City Attorney Lisa Robertson had left the city. 

In the latest filing, Derdeyn is joined by fellow counsel Marc Peritz. They argue the court has the power to make a ruling on the validity of the Comprehensive Plan. 

“City Council failed to give ‘reasonable consideration’ to the impact of the NZO on traffic and road congestion, necessary water and sanitary sewer infrastructure, and adequate schools and recreation areas to serve the significant increase in population density as required by Virginia Code §15.2-2283 and §15.2-2284,

The plaintiffs are G. Edward White, Susan D. White, Roy Van Doorn, Kristi Van Doorn, Jenny Clay, Michael Bevier, Lilian Bevier and two trustees of the Thomas J. Hill Trust. 

Only one opponent of the Development Code opted to run for City Council in 2023 to overturn the new zoning ordinance through legislative means. Former City Councilor Bob Fenwick placed fifth in the Democratic primary on June 20, 2023

The Whites claim legal standing because they will have higher real property tax assessments based on their ability to build more units should they choose. The Van Doorns make the claim that they deliberately wanted to live in a low-density neighborhood and they object to being in a Residential-C neighborhood. The two Hill trustees, the Beviers and Clay make similar arguments. 

“Residents who wish to remain in lower density areas are being harmed and will continue to be harmed by increased property taxes, noise, and impact on light and quiet enjoyment,” reads paragraph 21 of the pleading. 

“Residents are being harmed and will continue to be harmed by City Council’s failure to consider necessary infrastructure improvements to address the increased density due to the NZO,” reads paragraph 22. 

Paragraph 23 argues the plaintiffs will suffer due to the lack of off-street parking requirements. Paragraph 26 cites a property listing on Chesapeake Avenue as evidence that the new ordinance will increase property rights. 

This paragraph does not make note that 1316 Chesapeake Street had been designed as Residential-B for most of the new code’s development, but was reduced to Residential-A in a last-minute change. 

Transportation argument to get day in court 

The transportation argument is based on §15.2-2222.1 of the Code of Virginia as well as 24VAC30-155-30 of the Administrative Code. 

“Prior to adoption of any comprehensive plan pursuant to § 15.2-2223, any part of a comprehensive plan pursuant to § 15.2-2228, or any amendment to any comprehensive plan as described in §15.2-2229, the locality shall submit such plan or amendment to the Department of Transportation for review and comment if the plan or amendment will substantially affect transportation on state-controlled highways as defined by regulations promulgated by the Department,” reads Section A.1. “The Department’s comments on the proposed plan or amendment shall relate to plans and capacities for construction of transportation facilities affected by the proposal.”

“The comprehensive plan or comprehensive plan amendment package shall be submitted to VDOT, if it is reasonably anticipated to substantially affect transportation on state controlled highways,” reads 24VAC30-155-30. “Substantially affect, for the purposes of comprehensive plans, includes substantial changes or impacts to the existing transportation network.”

“The City failed to do either of these things,” reads paragraph 39 of the pleading. The following paragraphs argue that the density increase expected by the additional development rights was not communicated to VDOT.

Communications between city and VDOT officials are included as exhibits in the pleading. 

These include a June 27, 2022 email from Neighborhood Development Services Director James Freas to Mary Summers Whittle, who made many of these arguments in the public comment period leading up to adoption of the Development Code.

“A traffic engineering study is unwarranted for a plan and zoning that speak to gradual change over a very long period of time,” Freas wrote. “As the City has done in the past, we will use growth projections based on a range of factors to make decisions about infrastructure.” 

Exhibit E is a November 5, 2021 letter from Chuck Proctor, the Culpeper District Planning Manager, signing off on the Comprehensive Plan that Council would initially adopt on November 15, 2021. He cited several existing plans and planning frameworks as sufficient. 

“The resulting Comprehensive Plan integrates all of the requirements of the Code of Virginia and includes many of the mobility ideas available and envisioned for the future,” Proctor wrote.

The Virginia Department of Transportation is not named as a defendant in this case. 

The next section of the pleading points out that there are no residential density limits in commercial mixed use districts.

“Despite this massive increase in density, City Council failed to commission appropriate studies about the impact of the NZO on stormwater management, water, sanitary sewer, parking, traffic, transportation or recreational resources,” reads paragraph 57. 

In all there are four counts in the request for declaratory judgment. City officials had no comment and said City Attorney Jacob Stroman is currently out of town. The city will need to respond to the pleading within a certain time period.

Before you go: Every now and then, an article will be posted here on Information Charlottesville first before it gets sent out in the Charlottesville Community Engagement newsletter. This one will go out in the January 18, 2024 but I felt it was important to get the story out more quickly. Please consider a paid subscription to the newsletter to ensure this coverage continues into the future.