By Erich Wagner (File photo)
The Virginia Supreme Court again sided with attorneys for the city last month, ruling against the so-called Iron Ladies’ petition to force a Board of Zoning Appeals hearing on the controversial waterfront plan, but the trio vowed to ask the court to reconsider.
The plaintiffs — April Burke, Beth Gibney and Marie Kux — had argued that they were improperly denied a hearing before the BZA because then-planning director Faroll Hamer had effectively rejected an appeal of her own decision.
But in its ruling March 27, the court again ruled that city council’s supermajority 6 to 1 vote in favor of the waterfront plan rendered the appeal moot. In 2013, the court ruled that the appeal of city council’s vote — 5 to 2 — on the roadmap for waterfront redevelopment was not relevant because councilors had already revisited the issue and voted as a supermajority.
“Had the [lower court] ruled in favor of the plaintiffs, and plaintiffs were heard and prevailed before the Board of Zoning Appeals, the result would have been … the requirement of a supermajority vote before city council,” the court wrote. “When [the waterfront plan] was considered on March 16, 2013, it passed by supermajority. The plaintiffs failed to articulate in either complaint any injury or denial of right that was not rendered moot by the supermajority vote of city council.”
City officials applauded the decision and said redevelopment proposals like the Carr hotel can move forward.
“The court found that the plaintiffs were not actually aggrieved, and therefore dismissal of the case was proper,” said City Attorney Jim Banks in a statement. “This puts an end to all of the pending litigation on the waterfront and allows approved and pending redevelopment projects to move forward.”
But representatives for the Iron Ladies said they were not deterred by the decision, and indicated they would file a petition for the court to reconsider its decision.
Friends of the Alexandria Waterfront, a resident group that has been critical of the redevelopment plan, said the court “ignored” the fact that the Iron Ladies’ appeal of Hamer’s original decision should have automatically triggered a BZA hearing. And, they argued, the court should not have assumed the BZA hearing would not have changed any city councilors’ minds.
“We felt that basically the court just ignored key issues raised in the briefs and oral arguments,” said Bert Ely, co-chairman of the group. “[Maybe] ultimately the court will see the point we’re trying to make, which revolves around process, not the waterfront itself. The court at this point has given a pass to the city on not playing by its own rules.”
Banks declined to specifically address the latest development in the case in a statement Tuesday.
“We are pleased the Virginia Supreme Court has upheld the dismissal of the case, and we look forward to continued progress on the community’s waterfront plan,” Banks wrote.
In the meantime, city officials announced last week they have reached a preliminary agreement with developer EYA to require barging to transport the vast majority of materials to and from the site of the Robinson Terminal South redevelopment project.
Residents and members of a resident-led city workgroup tasked with oversight of waterfront redevelopment projects had lobbied the city for months to require barging to move demolition and construction materials ahead of the planning commission’s hearing on the project, scheduled for tonight.
According to the agreement, EYA would be able to move demolition and construction materials at the site by truck, but any materials brought in or out during the developer’s effort to bring the property above the floodplain and construct its underground parking garage would be transported by barge. That means at least 90 percent of materials taken in or out of the site would be done by water.
City planning director Karl Moritz said the timing of the development’s permits and residents’ efforts to secure barging were somewhat serendipitous.
“We were negotiating with the developer through the review process as we normally do, but at the same time there was this public effort and discussion with the barging and what options there were, so those two things sort of came together,” Moritz said. “We needed to have an agreement and a decision on it prior to Thursday’s hearing.”
And Yon Lambert, the city’s director of transportation and environmental resources, said the deal will greatly reduce the wear and tear caused by dump trucks driving through Old Town streets.
“We’ll allow them to haul by truck the demolition material, which is about 770 cubic yards, or 77 truck loads,” Lambert said. “[The floodplain and parking garage work] will be done using 35 or 36 barges, which is somewhere in the range of 7,000 truck loads.”
Lambert stressed that the 90 percent figure is overly conservative, noting that it can be difficult to estimate exact truck or barge loads so far in advance of construction.
Townsend “Van” Van Fleet, president of the Old Town Civic Association and a long proponent of barging on the waterfront projects, was happy to hear the news of an agreement.
“We’re happy that at least we made a major milestone here, and got them to agree to use barges to start with,” he said. “When it started, it seemed like the city weren’t going to do anything. We hope Robinson Terminal North would do the same thing, and hopefully the mayor will find a way to do it for the Carr project.”
“The key thing, and it just comes down to one thing, is to minimize the damage of the construction process to the streets and housing in Old Town and holding truck traffic to an absolute minimum,” he said. “We’d also like to see the dirt hauled away by barge from the Carr project … We’ll see how it plays out.”
Lambert and Moritz were noncommittal about requiring barging for the Robinson Terminal North project, saying the city evaluates projects on a “case by case” basis, but that staff will employ “the same criteria” used in the case of its southern counterpart. Getting barging for Carr will be much more difficult, they added.
“The Carr property was already approved through city council and the planning commission,” Lambert said. “We heard a little bit about last night about the number of trucks they’re looking at, and the numbers are significantly less.
“And it’s a very different site. Unlike the Robinson Terminals, it’s not right along the water, and that certainly was a consideration when it was first approved.”