Closing arguments made in La Bergerie trial

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Closing arguments made in La Bergerie 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)
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By Chris Teale (File photo)

Attorneys in the lawsuit aimed at preventing the relocation of La Bergerie to 329 N. Washington St. presented their final arguments last week, with a decision expected imminently in the case.

Both sides went to court in late May for three days of testimony, after which attorneys filed a series of legal briefs to lay out their closing arguments. With all briefs now submitted, specially appointed Judge William Shaw will likely issue his decision in Alexandria Circuit Court in the near future.

The French restaurant is currently located at 218 N. Lee St., and owners Laurent Janowsky and Margaret Ticer Janowsky applied to relocate their business to a historic Old Town home on North Washington Street. 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.

Neighbors of the proposed new location sued city council last year under the name “Rettig, Shirley et al v. City Council of Alexandria, Virginia,” arguing that councilors’ unanimous approval was unreasonable, arbitrary and capricious. Plaintiffs also argued council approved the proposal as a favor to Ticer Janowsky’s mother, former Mayor, City Councilor and state Sen. Patsy Ticer.

In the new location, La Bergerie would include 100 indoor and 50 outdoor seats, a bar, live music and a five-bed inn. Plaintiffs’ testimony centered on the argument that the Janowskys were given an easy path to approval by city council and planning staff due to their political connections, and that the plan had not been properly vetted for its adverse impacts on the neighborhood.

Several neighbors testified against the decision, while attorneys representing council submitted sworn testimony by city councilors in depositions as evidence along with the 958-page legislative record, which includes all documents and presentations that had been presented to council by the day of their decision as well as a record of their deliberations.

The first round of closing briefs were submitted June 30 by the three legal teams: Williams and Connolly, LLP, on behalf of the plaintiffs; McGuire Woods, LLP, on behalf of city council; and Walsh, Colucci, Lubeley and Walsh, P.C., for the Janowskys.

In the plaintiffs’ opening brief, attorneys accuse the city of ignoring the complaints of local residents about the proposed location of La Bergerie, and for violating its own rules on approvals of projects in nine instances. They said the lack of defense witnesses in the trial mean the evidence the plaintiffs presented was unrebutted, and that the legislative record is an inadequate means to do so.

The plaintiffs alleged the decision made by council was not fairly debatable, meaning that one side of the argument held more sway than the other.

They accuse the city of approving the proposal due to the applicant’s connections to Ticer and her connections to the city, pointing specifically to her eating lunch with city councilors during the October 18, 2014 public hearing when the application was discussed.

“In approving the application, city council ignored the significant harm [the Janowskys’] proposal for the property will cause to the neighborhood and excused material violations of law,” the brief reads. “But why? Because [La Bergerie] was no ordinary applicant.”

In their opening brief, council’s lawyers reject these claims, in particular the idea that the decision was not fairly debatable, pointing to the fact that councilors added new conditions in their approval and were presented with enough evidence from both sides with which to make a decision. They also took issue with the accusation that Ticer had undue influence given her standing in the city.

“Incredibly, after 18 months of litigation, including unprecedented depositions of each and every city council member, plaintiffs’ only evidentiary support is speculative evidence of favoritism based on applause
and lunch plates,” the attorneys wrote. “This claim is a shameful and unsupported attack on the integrity of hardworking and dedicated public servants.”

The second round of briefs, which respond to the first series, were submitted by the respective legal teams on July 21. The Janowskys’ attorneys dismissed the allegations that Ticer had undue influence on proceedings as “preposterous,” and that there was no evidence that city councilors or staff had made an unreasonable decision given that both sides were given a fair opportunity to state their case.

“The undisputed evidence showed that plaintiffs fully participated in the political process and are simply unhappy with the city council’s decision,” their reply reads. “That is not, however, a sufficient basis to overturn that decision.”

But the plaintiffs stood by their accusations of impropriety in their reply, and said the evidence presented at trial suggested that there had been numerous missteps in the approval process.

“Without this lawsuit, city council’s and the city staff’s unlawful actions would have remained cloaked behind the procedural violation of local government and shrouded in the secrecy of purported legislative privilege,” their reply reads.

Shaw is expected to issue a decision in the near future.

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