Judge grants CLA 30 days to amend Zoning for Housing lawsuit against city

Judge grants CLA 30 days to amend Zoning for Housing lawsuit against city
The Coalition for a Livable Alexandria has 30 days to amend their lawsuit against the city. (Photo/Jordan Tovin)

By Wafir Salih | wsalih@alextimes.com

Judge David S. Schell gave the Coalition for a Livable Alexandria 30 days to amend its lawsuit against the city over the Zoning for Housing ordinance during an initial hearing on May 8.

Senior Assistant City Attorney Travis MacRae began the city’s opening arguments by urging the court to dismiss the case and argued that the plaintiffs lacked standing. MacRae also said the CLA did not allege in their complaint that they own any properties in the city.

MacRae then argued the group’s lawsuit only covers examples of public harm, rather than particularized harm to individuals.

“If all you have is public harm, then you don’t have standing on land uses,” MacRae said in court. “… They don’t even know where the impact is going to be.”

MacRae emphasized that the plaintiffs needed to show examples of harm that specifically affected them as individuals. He listed items in the CLA’s lawsuit, such as parking and sewage issues, and dismissed them as hypothetical.

“It’s just a hypothetical list of harms they’ve offered,” MacRae said. “They don’t even know where the buildings will be.”

Schell questioned MacRae on the 30-day appeal timeline, which allows residents to file a plea if they feel wronged by a law or ordinance.

“If a person feels aggrieved by the zoning [changes], it’s very unlikely a building will be erected in 30 days,” Schell said.

Schell likened the situation to a catch-22 and said a future duplex would likely aggrieve residents when it does go up.

MacRae then said the CLA missed the 30-day deadline to file an appeal. He noted that the ordinance was passed on Nov. 28, 2023, and the appeal should have been filed in December, instead of January. MacRae concluded opening arguments by urging the court to dismiss all counts due to a lack of standing.

Alex Francuzenko, the lawyer representing the plaintiffs, countered MacRae’s claims by asserting that CLA members are property owners.

“The plaintiffs are property owners [and] are arguing at this stage that they’ve been aggrieved, or will be aggrieved, based on the change in the ordinance,” Francuzenko said.

Francuzenko then requested the court to permit an amendment to the lawsuit to include CLA members as property owners. He then argued that the city’s stance was premature and said studies showed there would be more development in the future. Francuzenko also said that, while the city may have enacted the ordinance to address racial disparities in zoning, they did so without applying scrutiny.

“The city took a shotgun approach and changed zoning for the entire city,” Francuzenko said.

Schell then returned to the concept of particularized harm and questioned Francuzenko. Schell explained that if a quadplex were to open in a flood district that the property owners would be affected, but that this example of a particularized harm and other specific examples were not included in the group’s plea.

Francuzenko argued that specific instances of harm would take longer to reveal themselves than the 30-day appeal timeframe allows.

“Particularized harm isn’t going to manifest in the first 30 days,” Francuzenko said. “We concede that [but] based on the development that will happen, it will impact them.”

Francuzenko then cited traffic congestion and other factors that would impact the plaintiffs and said that the ordinance’s evolving nature means harms today could differ tomorrow. He concluded by arguing that the case should proceed and be argued on its merits.

After a brief deliberation and discussion with both parties, Schell granted the plaintiffs 30 days to file amendments to their plea in order to include specific instances of particularized harms, as well as to add CLA members as property owners to the plea.

Dino Drudi, a resident who attended the hearing, drew a comparison to a previous hearing he attended in Arlington for the “Missing Middle” case, which is also being overseen by Schell.

“Judge Schell has given the CLA plaintiffs some more homework to do and has given them a due date,” Drudi said.

Roy Byrd, chairman of the CLA, said he was pleased with the outcome of the hearing but still wished City Council had decoupled the omnibus ZFH ordinance.

“It’s unfortunate that if we win, [because of] the way this ordinance was put together, the ordinance will be thrown out,” Byrd said. “We asked [Council] to decouple it.”