By Erich Wagner and Chris Teale (File photo)
Although testimony in the trial against city council fighting its decision to approve the relocation of the La Bergerie restaurant to 329 N. Washington St. wrapped up last week, the case is far from over.
Attorneys for neighbors of the proposed new location and for city council will file a se- ries of legal briefs laying out their arguments over the next several weeks, after which Judge William Shaw will issue his verdict.
Opening briefs must be filed by June 30 and be limited to 25 pages, with a response to be filed by July 21 with a 15-page limit each for representatives of city council and the La Bergerie owners. The plaintiffs will have 30 pages to respond to the defendants.
The new development came after three days of courtroom testimony last week that included witness testimony from eight of the plaintiffs in the case and no witnesses from attorneys representing city council.
Neighbors of the proposed new location sued city council, 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.
The complaint was first filed on November 17, 2014 in Alexandria Circuit Court under the name “Rettig, Shirley et al v. City Council of Alexandria, Virginia,” by 24 neighbors who live within a few blocks of the proposed new location.
Observers expected current and former city councilors to take the stand and testify at trial, but none did so. Instead, testimony they gave under oath in depositions was admitted into evidence, except for those by City Councilor Tim Lovain and Vice Mayor Justin Wilson.
Depositions submitted as evidence came from Mayor Allison Silberberg and City Councilors Paul Smedberg, Del Pepper and John Chapman along with former Mayor Bill Euille, administrative aide Mark McHugh and Alex Dambach, division chief in the department of planning and zoning.
Also submitted as evidence by council’s attorneys was the legislative record, which includes all documents and presentations that had been presented to council by the day of their decision, while the plaintiffs submitted a trove of emails involving city staff, neighbors, councilors and La Bergerie development attorney Cathy Puskar, staff reports and minutes from two 2014 hearings of the traffic and parking board.
The legislative record was a source of contention between the parties Thursday afternoon. Bryan Wilson, an attorney rep- resenting the neighbors, tried again to block the document from being admitted into evidence, having previously failed to do so in pre-trial motions.
Wilson argued that the city attorney’s office improperly requested documents, like a transcript of city council’s public hearing on the La Bergerie proposal, be placed into the legislative record, and that some emails were improperly left out of the document.
“Although the certification [of the legislative record] appears to be OK, [City Clerk Jackie] Henderson testified to the exact opposite [in a deposition],” Wilson said. “[The] record was never closed, and there was never any attempt to change, revise or qualify the initial certification.”
But Amy Miller, an attorney representing city council argued that Wilson was “disingenuous” in his argument.
“The record is a true and accurate representation of what the city council had before it [when it voted on this proposal],” Miller said. “Plaintiffs have picked a random series of emails to some
— not before all of council — and used them to ask misleading questions and make a disingenuous argument.”
Miller said emails sent to one or two councilors were not included in the record, because those communications were not considered by the full city council.
“Not every email between a citizen and one city council member goes in the legislative record,” Miller said. “And lawyers are routinely involved with creating the legislative record, and in fact it is encouraged to protect the city from liability.
“They are trying to discredit the legislative record, but you can’t exclude what legislators say in a public session.”
Judge William Shaw sided with city council, admitting the legislative record into evidence. He said it makes sense for the clerk to accept documents on a rolling basis, to ensure a full and complete record.
“I don’t care when something was added, as long as it was before council when they made their decision,” he said. “And to be honest, having a transcript [of the hearing] is actually better. In a lot of smaller jurisdictions, the clerk just writes out what they think people said, and that’s that.”