Charlottesville Circuit Court Judge Worrell to take time to decide on court trial for zoning lawsuit 

Attorneys on both sides of a lawsuit seeking to overturn the city’s new development code have until August 23 to send a written closing statement to Charlottesville Circuit Court Judge Claude Worrell to assist him in making a ruling about whether a court trial should be held. 

That comes after a 90 minute hearing on June 27, 2024, on a motion from the City of Charlottesville to dismiss a suit brought by a group of eleven individuals who own property within city limits. Among their claims is an argument that the city did not fully follow Virginia law by conducting a thorough analysis of how additional density would affect city streets. 

Previous stories on the case: 

• Circuit Court Judge reduces Charlottesville Comprehensive Plan lawsuit to one count, throws out three others, August 29, 2022
• Lawsuit filed seeking voidance of Charlottesville’s new zoning code, January 17, 2024
• Charlottesville served with lawsuit seeking voidance of the new zoning code, March 1, 2024
• Charlottesville has responded to lawsuit seeking overturning of new zoning code, March 27, 2024

Charlottesville seeks dismissal of the case

The new Development Code adopted by the City Council on December 18, 2023 grants new development rights to almost all properties within city limits. On January 16, a group of neighbors opposed to the new rules filed a lawsuit seeking for the zoning to be declared void based on four counts. 

The city responded that the opponents sought to use the courts to achieve what they could not do through the legislative process and filed a motion called a demurrer which argues the plaintiffs do not have any legal right to bring the case forward. 

The hearing had been expected to start at 1 p.m. but was delayed an hour as sentencing in a criminal trial wrapped up. Judge Worrell presides over both civil and criminal cases. 

Greg Haley with the law firm Gentry Lock represented the city. City Attorney Jacob Stroman has been on administrative leave for undisclosed purposes. 

“The new zoning ordinance (NZO) identified a significant problem which was a lack of affordable housing,” Haley said at the beginning of his remarks. 

Haley said the new zoning was adopted as part of the Cville Plans Together process which includes Council’s adoption of an affordable housing plan in March 2021 as well a new Comprehensive Plan in November 21. He said the zoning code puts into practice values Council sought to adopt. 

“It allows multifamily units in all zoning districts,” Haley said. 

Haley noted that Charlottesville is not alone in legal challenges to upzoning cases, pointing to similar lawsuits in Alexandria, Arlington County, and Roanoke. Speaking for Charlottesville, he said the adoption of the zoning code was the result of a long process. 

One of the specific allegations in the plaintiff’s case is that the city did not provide a required analysis of the potential impact of additional residential density on the city’s transportation network. The initial pleading argues that the maximum density could allow up to 62,000 additional dwelling units and an additional 150,000 residents. 

Haley said that doesn’t rise to a legally substantive argument, and countered the city did not expect all of those people to show up overnight. 

“It is a disagreement between the plaintiffs and the city about the outcome of the zoning,” Haley said. 

Haley said Council considered a range of factors and housing was the one they prioritized the most. He said this is demonstrated by the adoption of the affordable housing plan and a Comprehensive Plan that signaled higher density would come in the new zoning ordinance.

“Where are working class families supposed to live?”

Haley went through a list of studies conducted while the zoning was in development that showed the rate of change would be much slower than the plaintiffs argue. One of these was a study that sought to show the effect inclusionary zoning would have on the conversion of single-family lots into ones that took advantage of additional development rights. Haley said the inclusionary zoning analysis estimated that 1,300 new units would be built over three years.

Haley said the number generated by the plaintiffs is a theoretical maximum and disputed the notion that the issue wasn’t studied by the people who made the decision. 

“You have conclusions from staff that the infrastructure is sufficient,” Haley said. 

The Planning Commission deliberated for months before recommending adoption on a 6-0 vote in October 2023. Council then began their own deliberations including a public hearing on December 5 of that year. 

“This legislative record establishes that reasonable people could disagree on the adoption of the zoning,” Haley said, arguing that meant the action was not “arbitrary and capricious” as claimed by the plaintiffs. 

Haley said a trial would not be warranted because the legislative body offered multiple forums for disagreements to be aired. He said there was no place for the court to substitute its judgment for that of City Council citing a 2002 case in which the Virginia Supreme Court overturned a trial that overturned a decision by the Rockingham County Board of Supervisors. 

Plaintiff’s attorney argues for a trial 

Michael Derdeyn, attorney for the plaintiffs, said the case was simple and that the city did not comply with Virginia Code which is ultimately the responsibility of the state legislature.

“They city failed to do what the General Assembly told them to do,” Derdeyn said. “The process was flawed.” 

Derdeyn specifically referred to §15.2-2284 which describes what localities must consider when coming up with new zoning districts. This code section lists a variety of areas of study including “the transportation requirements” of the community. 

“If they tell  you how to do something, you have to do it,” Derdeyn said. 

On a more specific level, § 15.2-2222.1 details how localities must coordinate with the state on transportation planning. 

“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. 

Derdeyn said the city only sent the transportation chapter and not the complete plan. 

“Why they would not send the comp plan to VDOT is baffling,” Derdeyn said. 

Derdeyn said a court trial would allow the evidence to be submitted to prove that the city and VDOT did not do what state code said they had to do. This would include correspondence from former City Attorney Lisa Robertson who resigned at the end of December 2022. 

“The facts are that if the city had sent the whole comp plan then you would see that in the record,” Derdeyn said. 

Derdeyn also took up the city’s claim that the rate of change would be incremental. He said that didn’t matter because the state code required a full analysis of the potential build-out for long-term planning purposes. 

“They are supposed to do the study on the front end,” Derdeyn said. 

Judge Worrell disagreed with that interpretation and said plaintiffs had no evidence that 62,000 new residents would appear overnight. He suggested they would have to demonstrate more clearly the immediate impact the zoning might have on transportation. 

Derdeyn again said those were details that would come in a full trial. He said the city’s rate of change analysis only looked at residential neighborhoods and did not study the potential impact on existing mixed-use corridors where residential density would be unlimited with no maximum cap.

“They didn’t analyze the other parcels,” Derdeyn said. “They looked at part of the puzzle. They didn’t even look at the whole city.” 

Judge Worrell said the city had discretion to make assumptions and said they didn’t have to be founded in pure fact. He said many decisions are based on statistical extrapolation and sometimes there is risk and mistakes are made.

“Dewey did not defeat Truman,” Judge Worrell quipped. 

This is the second time Worrell has presided over a hearing involving these same issues. In August 2022, he dismissed three of four counts in a previous suit to overturn the Comprehensive Plan. In one of them, he said the plaintiffs did not have standing because they could not demonstrate any harm had been done to them with that plan’s adoption.

Derdeyn said that harm is now demonstrated in the suit that he argued should go to trial. 

“Your honor said we had to wait until the zoning,” Derdeyn said. “The ordinance passed and now we are here.” 

After a 90 minute hearing, Worrell made no decision and invited both attorneys to submit closing arguments and he would follow-up with a written opinion. 

“Suffice it to say, it’s an interesting argument,” Judge Worrell said. 

Stay tuned to Charlottesville Community Engagement for more stories on this case and land use issues in the region. 

Legal cases referred to in the hearing: 

• Hartley v. Board of Supervisors of Brunswick County (2024)
• Board of Supervisors of Rockingham County v. Stickley (2002)
• Town of Jonesville v. Powell Valley Village Limited Partnership (1997)

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