Alexandria judges recuse in ZFH lawsuit

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Alexandria judges recuse in ZFH lawsuit
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By Wafir Salih | wsalih@alextimes.com

Alexandria Circuit Court judges have recused themselves from presiding over the Coalition of Livable Alexandria’s lawsuit against the city over the Zoning for Housing ordinance. Both CLA and Alexandria Director of Communications Ebony Fleming have confirmed the recusal.

This move mirrors a similar instance in 2023 when judges in Arlington Circuit Court recused themselves after 10 homeowners sued their city over a similar ordinance that would also eliminate single-family zoning protections. David Schell, a former Fairfax County judge, was then selected by the Virginia Supreme Court to oversee the case. Schell ruled in the fall that the plaintiffs had standing.

CLA Chair Roy Byrd said he views the decision by Alexandria’s judges to recuse themselves as a good sign.

“When they recused [themselves], we saw that as a positive development. It basically means that, from our perspective, we’ll get a fair hearing. Both sides will get a fair hearing,” Byrd said.

Byrd said the judges recused themselves in February, but that CLA wasn’t notified until March 12 during a scheduled meeting between the city’s attorney’s office and legal representatives for CLA. Both parties had planned to discuss potential hearing dates when, according to Byrd, the city attorney’s office learned after contacting the clerk of the court that the judges had recused.

“Unfortunately, the clerk of the court didn’t notify either of the litigants. They didn’t notify the city attorney’s office [or] our attorneys. So that was, you know, we’ll chalk that up as an administrative error,” Byrd said.

The city attorney’s office, the clerk of the court’s office and the judge’s chambers all declined the Times’ requests for comment on the rationale behind the recusal.

The Virginia Supreme Court is expected to appoint a new judge in the days ahead.

“We’re thinking that we could hear or find out what judge has been assigned to this anytime between now and April. … But we’re in that window where the Supreme Court would make that decision on who’s going to preside over this,” Byrd said.

Barbara Beach, a retired lawyer who practiced law for 43 years, said judges recusing themselves isn’t common in Virginia.

“Recusal is not often in Virginia,” Beach said. “I don’t know what the statistics are, but it’s not a common occurrence.”

Beach emphasized that the recusal must be understood against the backdrop of Virginia’s three canons of judicial conduct, principles judges are expected to adhere to. According to Beach, these canons guide every decision a judge makes within the judicial process, ensuring their actions uphold the integrity of the court. The three judicial canons, listed under Section III. Canons of Judicial Conduct for The Commonwealth of Virginia, are:

“1. Will the action or inaction threaten the judge’s impartiality?

2. Will the action or inaction harm public trust in the fairness of the judiciary?

3. Will the action or inaction harm the efficient and effective delivery of justice?”

Byrd said the judges recused themselves on their own without a request from CLA.

“I guess the court had done this unilaterally. It wasn’t as if we had come in and requested that they recuse themselves. In fact, that would have been an action at the hearing that we thought we were working with the city attorney’s office to schedule,” Byrd said. “Our attorneys at that point would have potentially asked the court at that time, you know, would they recuse themselves? Well, none of that had to happen because they did it unilaterally.”

Byrd said CLA had additional concerns with ZFH besides the single-family zoning amendment, such as the elimination of parking requirements and removal of oversight on boarding houses or rooming houses.

Byrd said that CLA sued the city over ZFH because it was the only option residents had left given the circumstances.

“We felt like it’s the only recourse that citizens had. This ordinance was seven to nine separate ordinances that were all put together, kind of in one omnibus package – one piece of legislation so City Council had to vote it all up or all down. There was no possibility of separating out pieces of it,” Byrd said.

Byrd said that if the court ruled in favor of the coalition, it would nullify the ordinance entirely. He said that residents advocated for the law to be broken down into separate components to avoid this outcome.

“Prior to passage of this, [we said] it needed to be decoupled so that you could work on the different pieces, and maybe three would have gone through with no problem and others would have been modified and then passed. But the way it was done, we can’t go in and say, ‘Well, we just want this piece to be changed.’ It doesn’t work that way. It’s all or nothing, unfortunately,” Byrd said.

Beach posited that the ordinance violated city code, and said that a favorable court ruling for CLA would serve as a rebuke to Council.

“I think this lawsuit is really important, because I think what the City Council has done violates the city code. So having the court say it violates the city code, it not only throws out the ordinance, but it says to the City Council, you’re not above the law. … For a court to say: ‘City Council, you can’t do it’ – that’s a big deal,” Beach said.

CLA, along with seven plaintiffs, filed its lawsuit in Circuit Court on January 17 after City Council voted unanimously to adopt the ZFH initiative on Nov. 29, 2023.

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