La Bergerie move challenged in court by neighbors

La Bergerie move challenged in court by neighbors
Del Ray Cafe owners Laurent and Margaret Janowsky had been working to reopen La Bergerie at 329 N. Washington St. for more than three years. They announced June 18 they can no longer move forward with the relocation. (File photo)

By Chris Teale (Photo/Chris Teale)

Alexandria City Council has been sued at least 194 times since 1985, and it looks like government attorneys will go to bat for the body once more.

The latest case against council revolves around its decision to allow La Bergerie to move from its current location to a historic mansion on North Washington Street and open a five-bedroom inn with a restaurant that seats approximately 150 people, including seating for more than 40 outdoors.

Councilors voted unanimously last November to approve co-owners Margaret Ticer Janowsky and Laurent Janowsky’s proposal to relocate their business to a historic Old Town mansion at 329 N. Washington St. In doing so, council agreed to rezone the property from residential to commercial, amend the Old and Historic portion of the city master plan and approve a new special use permit.

In the complaint, filed on November 17 in Alexandria Circuit Court under the name “Rettig, Shirley et al v. City Council of Alexandria, Virginia,” 24 neighbors who live within a few blocks of the proposed new location sued over four allegations: that the approval of the application was unreasonable, arbitrary and capricious; city council engaged in “illegal spot zoning;” that city council denied them due process and denied them equal protection under the law.

Williams and Connolly, LLP, a D.C.-based law firm, represent the neighbors, while city council is represented by the city attorney’s office. City council’s legal team declined to comment because the litigation is still pending. Bryan Wilson, an attorney for Williams and Connolly, also declined to comment, except to say they look forward to trying the case in court.

“Plaintiffs are aggrieved by the decision [to approve the application] because the operation of a 149-seat restaurant and hotel, including seats for al fresco dining and outdoor music, will have a significant and detrimental impact on the value of their property, the use and enjoyment of their property and their personal quality of life in the residential neighborhood where they live,” the complaint says. “Special events, such as weddings and parties, would further disrupt the neighborhood. Such a large commercial operation will exacerbate an already difficult parking situation, as patrons will take on-street parking spaces in the neighborhood.”

The complaint goes on to accuse city council of approving the application by La Bergerie as a favor to co-owner Margaret Ticer Janowsky, the daughter of former Mayor, City Councilor and state Sen. Patsy Ticer. In retirement, Ticer has retained strong links to local politics — she endorsed Vice Mayor Allison Silberberg in the recent Democratic primary campaign and has supported other candidates in the past.

The neighbors also claim that the city’s zoning and planning office processed the application as if it had been received at the end of July 2014, whereas it was officially stamped as received on August 8, 2014. They argue that if the application had been processed according to its received date, the planning commission could not have considered it until November.

Within the process of approving the proposal, the complaint accuses the planning commission and city council of showing bias towards the Janowskys given their political connections to the city through Ticer. It argues that since she sat in the front row of both the planning commission’s and city council’s public hearings on the topic, she was able to exert undue influence on the process in favor of her daughter and son-in-law’s business.

The plaintiffs detail several adverse effects that they fear would stem from La Bergerie’s relocation: noise, losing the residential nature of their neighborhood, traffic, parking and the loss of residential zoning. They also criticize the decision to rezone the property as CD — commercial downtown — which is reserved for the “city’s downtown business core,” according to the city’s zoning ordinance.

“The application contained no verifiable data to support its claims, and included no studies or expert evaluations of the potential impact that the proposed use would have on noise, parking, loading requirements, odors, utilities, or the sewage system,” the complaint says. “The application, moreover, focused only on the potential impact a restaurant and hotel would have on Washington Street, rather than on homes on Princess Street and surrounding blocks.”

Since the lawsuit was filed in circuit court, the city filed a motion on December 16 to introduce the entire legislative record on the proposal — more than 260 pages of evidence — as the plaintiffs did not attach any documents to their original complaint. But Judge William H. Shaw III denied the motion in a May 4 letter.

“Here plaintiffs do not claim the legislative record entitles them to the relief sought,” Shaw wrote. “Nor do plaintiffs’ claims necessarily depend on what the legislative record contained or did not contain. Rather, plaintiffs claim that the approval of the application was unreasonable, arbitrary and capricious, and that it was illegal spot zoning.”

Council’s lawyers on May 8 objected to some of the charges leveled against them. In their motion, they wrote that the plaintiffs lack standing to bring the suit; that the record shows the approval was fairly debateable and that any claims of violating due process fail under the Virginia Code.

On June 1, the plaintiffs argued they do have legal standing to bring the case given that they all own property in close proximity and will suffer harm different from the general public because of council’s decision. They also argued that they were testing the legal sufficiency of council’s decision, as opposed to the factual merit of claims of the decision being fairly debated in the legislative process.

The court overruled the city’s request to dismiss the first two counts — that the approval was arbitrary and that the decision constituted “spot zoning” — at a June 8 hearing. The other two allegations are still under consideration, but it means that the two sides will be required to argue their cases in court regardless.

In other developments, the neighbors are trying to depose Mayor Bill Euille, Silberberg, City Councilor Justin Wilson and planning commissioner Eric Wagner. A motion to quash the effort was filed on June 5, and stated that depositions of elected officials are barred by the doctrine of common law legislative immunity and the doctrine of legislative privilege, meaning the elected officials may not be deposed under oath.

In addition, the plaintiffs looked to subpoena the documents and communications of Leah Fried Sedwick, the property’s owner since 2004, particularly documents related to the listing, sale and improvements of the property; land use applications and litigation; political contributions to Ticer, council, planning commission and other officials; and assorted documents related to her personal and business affairs.

Sedwick and her legal representatives filed a motion to quash the subpoena on June 10, arguing that much of what has been requested has either already been provided or is publically available and questioning why the request goes back upwards of a decade.

Meanwhile, the Janowskys are left in limbo, unable to move forward with their plan to move into their new location while the litigation is still pending. But Laurent Janowsky said that if the lawsuit is unsuccessful and La Bergerie is able to proceed, he hopes to build bridges with
some of the complainants and prove to them that his business can be a boon for the area.

“I’m just hoping that they’re my neighbors, and that they’ll become our guests as well in the hotel or in the restaurant,” he said. “At the end of the day, we’re continuing this battle because we think the city is going to prevail. There’s no reason why it shouldn’t work.

“Truly, it’s unfortunate that it’s come to this, with litigation, but I know the city will go ahead and win this. I want to get started on opening my inn. I think the city will prevail in its litigation, and then we can prove that we can be good neighbors.”

Shirley Rettig, one of the plaintiffs in the case, declined to comment and referred all questions to her legal representatives. A bench trial in circuit court will be heard in the late fall.