Lawsuit against city council goes to trial

Lawsuit against city council goes to trial
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 Erich Wagner (File photo)

After more than a year of legal maneuvering, a trial over whether city council improperly approved the relocation and expansion of local restaurant La Bergerie to a house on North Washington Street finally got underway Tuesday.

Neighbors of the proposed new location of 329 N. Washington St. sued city council last year, arguing that councilors’ unanimous decision approving the relocation was unreasonable, arbitrary and capricious, and that it was done as a favor to La Bergerie co-owner Margaret Ticer Janowsky, daughter of former Mayor, City Councilor and state Sen. Patsy Ticer. The proposal includes 100 indoor and 50 outdoor seats, a bar, live music and a five-bed inn.

In opening arguments, D.C.-based attorney Bryan Wilson, who represents the 24 neighbors, said he would prove city council and staff gave the Janowksys an easy path to approval and did not properly vet the proposal.

“Their actions, and those of staff speak for themselves,” Wilson said. “These actions beg several key questions: Did they vet the proposal carefully and neutrally? Did the city follow its own legally binding rules and procedures, or did they rush it through?”

But Amy Miller, an attorney representing city council, said the record shows that the Janowskys’ proposal underwent rigorous vetting, and that councilors and staff strengthened conditions placed on the relocation in many instances where residents had concerns.

“Each issue was considered by council and reflected in the record,” Miller said. “It was a fairly debatable, considered decision. … City staff recommended certain conditions that exceeded what was in the original proposal and in some cases exceeded what was legally required.

“Then, council went beyond staff’s recommendations, and imposed even more high conditions.”

To begin their case, attorneys for the neighbors called the lead plaintiff in the case: Shirley Rettig, 89, a 57-year resident of her home on Princess Street. She said that although she did not sign a protest petition submitted by opponents ahead of council’s deliberations due to a vacation, she did testify against the project.

“[When I first heard about the proposal], I was horrified,” Rettig said. “This is only 20 to 30 feet from my house. It would increase the difficulty of parking conditions, it would increase the amount of noise — from people, from deliveries, from trash pickup, and the vents would spew exhaust fumes.”

Ellen Mosher, another plaintiff, testified that she was shocked when she first heard of plans to bring a restaurant to her neighborhood.

“The neighborhood is quite charming: it’s quiet, peaceful and neighborly,” she said. “I was stunned that this huge operation would be plopped right into a residential neighborhood.”

Mosher said she took a tape measure with her and measured how far from an exhaust vent at the current La Bergerie — at 218 N. Lee St. — she could still hear the vent, and said it was audible as far as 90 feet away. She wrote a letter to city council laying out why she thought the vent, combined with outdoor diners and a proposed violinist would exceed the city’s 75-decibel noise limit.

“I was concerned about the vents spewing fumes all over the neighborhood,” she said. “The thought of living near a restaurant is absolutely disgusting. I bought [a home] three blocks from King Street so I would not be near the noise or smells [of eateries].”

But under cross-examination, Kevin Daniel, an attorney representing City Hall, sought to poke holes in her arguments.

“You talked about the fan [at the current La Bergerie location], but do you know the specific model of fan being used?” Daniel asked.

“No,” Mosher responded.

“And did you use some sort of measurement device to ascertain the decibel level?”

“No,” she said again.

“And do you have any specific knowledge that the fan [at the current location] would be used in the new space?” he asked.

Plaintiff Ronald Rigby testified that in conversations with then-Mayor Bill Euille ahead of city council’s hearing on the proposal, the former mayor expressed skepticism about the project, specifically about the appropriateness of the home for a restaurant. But after a meeting with then-Vice Mayor Allison Silberberg, Rigby said he concluded she had already decided to vote in favor of the proposal.

Rigby said members of the planning commission improperly called for a round of applause for Ticer during the body’s hearing on the proposal, and said Ticer joined city councilors in the council workroom during their lunch break during the council public hearing.

But under cross examination, Rigby admitted he initially spoke out against a motion by another neighbor for city councilors to recuse themselves from voting on the proposal. He said he thought Euille and City Councilor John Chapman would vote against the project — making it fall short by a 5-2 standard majority instead of the supermajority required because of the protest petition — and when the vote was unanimously in favor, Rigby felt Ticer had unduly influenced city councilors.

“[In hindsight], they should have recused themselves,” Rigby said.

The trial is expected to run through the end of the week.