Appeal possible in La Bergerie case

Appeal possible in La Bergerie case
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 (File photo)

The neighbors of the proposed new La Bergerie location on North Washington Street have set in motion an appeal to the Virginia Supreme Court to block the restaurant’s move.

A notice of appeal was filed December 16 in Alexandria Circuit Court by some neighbors of the property at 329 N. Washington St. The plaintiffs must file a petition for appeal within three months of circuit court’s final order in the case, which was made on November 23. That means they have until around February 23, 2017 to file a full appeal.

All appeals to the Virginia Supreme Court are discretionary, so the justices must accept the appeal before the plaintiffs can present their case to the court.

In an email to city council on December 20 obtained by the Times, City Attorney James Banks said he is confident the appeal will not be taken up.

“The court generally accepts a small number of cases for appeal and we are hopeful that the court will not see any issues of substance here for which it will grant the appeal,” Banks wrote. “In any event, we probably will not know whether the appeal has been granted for at least four months or more.”

After a lengthy lawsuit, the residents’ case preventing the restaurant’s relocation was shot down on October 31 in a decision written by specially-appointed circuit court Judge William H. Shaw III.

Restaurant co-owner Lau- rent Janowsky said he was unsurprised by this latest development in the case.

“Good for them. I think it’s fine; it is what it is,” he said. “Then it’ll go away, then I can go on with my project.”

In the aftermath of the ruling, Janowsky and his wife and co-owner Margaret Ticer Janowsky, announced that La Bergerie’s last day in its current location would be Christmas Eve. Laurent Janowsky said that plan will move forward as intended, despite the fact that an appeal could scupper the opening of the new location.

“I’m going forward with it,” he said. “I’m closing La Bergerie, and I’m definitely going ahead with my project.”

Andrew Burcher, an attorney at Walsh, Colucci, Lubeley, & Walsh, P.C. who represented the Janowskys in the lawsuit, played down the filing and said he was unsurprised by it. Burcher added that filing a notice of appeal is relatively routine, and allows the defeated party to preserve their rights while considering their next move.

“If they didn’t file it within the 30 days from the date of the final order that would end the matter,” Burcher said. “The matter still continues is really the crux of it, but it doesn’t surprise me at all. It shouldn’t surprise anybody that they filed a notice of appeal given the amount of time and effort that they put into this.”

The lawsuit challenged city council’s 2014 approval of La Bergerie’s move from 218 N. Lee St. after what they felt was an unreasonable decision made in part from undue influence from the applicant’s family. Margaret Ticer Janowsky is the daughter of former Mayor and state Sen. Patsy Ticer.

Plaintiffs also accused council of not vetting the plan for potential adverse effects on the neighborhood.

As part of the move, 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. The new location will include 100 indoor and 50 outdoor seats, a bar, live music and a five-bedroom inn.

The case was heard in circuit court last summer, with several neighbors testifying against council’s decision. Attorneys representing city council submitted sworn testimony by councilors in depositions as evidence, along with the 958-page legislative record, which included all documents and presentations that had been given to council by the day of their decision as well as a record of their deliberations.

After three days of courtroom testimony, the legal teams submitted a series of closing legal briefs to lay out their closing arguments before Shaw made his decision.

In his ruling, Shaw said that accusations of illegal spot zoning and a failure to mitigate neighborhood impacts were unfounded, and that council was well within its authority to grant the SUP.

“The city council presented evidence at trial that the proposed use of the property would simultaneously benefit the entire city in numerous ways,” Shaw wrote. “For example, the proposed use will make a historic property accessible to the general public; it will promote the expansion of locally-owned business; protect a building of historic and architectural value; encourage tourism; and will retain the existing retail pattern.”

The case has already cost the city a great deal, as it hired outside counsel to defend city council in court. City spokesman Craig Fifer said at the time of Shaw’s ruling that up to that point, the city had spent over $970,000 on outside counsel to defend itself, a figure that does not include time spent on the application and legal case by city staff.

Both C. Bryan Wilson of D.C.-based Williams & Connolly LLP, which represents the plaintiffs, and John Wilburn of McGuireWoods LLP that represents city council, did not respond to requests for comment.