[Updated to include response of town government to lawsuit in court papers.]
A roller coaster of a rezoning case in Vienna not only did not end in mid-June, but is climbing up a steep new section of track and readying to plunge into the court system.
Sunrise Development Inc. on July 17 filed a lawsuit in Fairfax County Circuit Court seeking at least $30 million in damages, plus legal fees, following the Vienna Town Council’s June 17 denial of the company’s rezoning application.
Sunrise had proposed building a four-story, 77,246-square-foot senior-living facility on 0.74 acres at 100-112 Maple Ave., E. The facility would have had 2,264 square feet of ground-floor retail space, up to 82 assisted-living units and underground parking.
The Council, largely because of parking concerns at the site, voted 4-3 against Sunrise’s application. Mayor Laurie DiRocco and Council members Douglas Noble, Howard Springsteen and Pasha Majdi voted against the proposal and Council members Linda Colbert, Carey Sienicki and Tara Bloch cast votes in favor.
The meeting was the final one for Bloch and Sienicki, as the former had been defeated in the May 7 town election and the latter had chosen not to run again. They were succeeded on the dais July 1 by new Council members Steve Potter and Nisha Patel.
In the 40-page Circuit Court filing, “first brought to the public’s attention by local resident Chris Hogan and the group SaveMaple.org, Sunrise’s attorneys argued that the Town Council had “acted unlawfully, arbitrarily, capriciously, and without reason” by not complying with Town Code Section 18-249, which pertains to rezonings.
Under that section, the Council must give due consideration to the proposed amendment’s relationship with the “entire comprehensive plan for the Town, with the intent to retain the integrity and validity of the zoning districts herein described, and to avoid spot changes in the zoning map,” according to the filing.
The Council “offered no findings or rationale at all in its vote” and did not mention the code section, Sunrise’s attorneys wrote.
Sunrise’s filing (viewable at https://bit.ly/2yZ7xqJ) contends that:
• Assisted-living facilities are “specifically contemplated” as acceptable uses under Vienna’s Maple Avenue Commercial (MAC) ordinance.
• Sunrise’s application was the only one of five submitted so far that the Council did not approve.
• None of the other MAC applications had to propose their own parking standards or show they would comply with parking standards promulgated in other jurisdictions.
“Unlike other applicants for the MAC Zone, Sunrise was required to propose its own parking standard, revise said standard, and ultimately meet or exceed every parking standard in every jurisdiction in the surrounding area,” the filing alleged.
• Every other MAC application has offered multi-family housing units or retail aimed at younger demographics and those applicants were not asked either about the age of their residents or “whether or how much they would walking around the neighborhood and frequenting local establishments,” the filing read.
The Council’s actions were “inconsistent and discriminatory” and singled out Sunrise’s application because the proposed community catered to elderly people in need of assisted-living services, the plaintiff’s lawyers wrote. The Virginia Fair Housing Law “prohibits unlawful discrimination in housing on the basis of elderliness or disability,” they wrote.
Sunrise is demanding a jury trial for its lawsuit, which calls for the court to:
• Declare the Council’s denial of Sunrise’s rezoning application unlawful under the Virginia Fair Housing Law.
• Order the Council to reconsider the application’s denial “within a reasonable period of time.”
• Prevent the Council from taking actions that would disallow consideration of Sunrise’s application or its proposed uses.
• Award Sunrise no less than $30 million in compensatory, punitive and recoverable damages.
• Compensate Sunrise for its costs in bringing the suit, including attorney’s fees without limitation.
• Retain jurisdiction of the matter to allow Sunrise to seek relief if the Council again denies the company’s application in a discriminatory manner.
No date has been set yet for the Circuit Court to hear the case.
Town Attorney Steven Briglia said the town’s long-standing policy is not to comment on pending legal actions.
“However, I can say the town of Vienna disputes the allegations in the complaint and will be filing responsive pleadings with the Court,” Briglia wrote in an e-mail to the Sun Gazette.
Briglia later passed along a copy of the town’s legal response to the lawsuit, which asked the court to “dismiss this case with prejudice.”
The town’s response, signed by Heather Bardot of Bancroft, McGavin, Horvath & Judkins PC, requested that the court require Sunrise to provide a lengthy list of items constituting the case’s legislative record.
The Council’s denial of the application was a legislative action that, as evidenced by the close vote, met the law’s “fairly debatable” standard, the town’s response read. Sunrise also is not an “aggrieved person” as defined under the Virginia Fair Housing Law, the response continued.
The Town Council in mid-July skirted potential legal action stemming from another MAC case that members voted on June 17. Red Investment LLC and MJW Maple LLC won approval, on a 5-2 Council vote, to build a total of 37 condominiums on three floors above 7,500 square feet of ground-floor retail at 374-380 Maple Ave., W.
Pressed by Springsteen and Majdi, who had voted against the application, the Council on July 15 spent six hours in a joint meeting with the Planning Commission debating whether to rescind the rezoning decision.
After being told by numerous residents and business owners that such an action would harm Vienna’s reputation and expose the town to litigation, Council members at nearly 2 a.m. the following day did not take up a motion to rescind, but instead decided to pursue options for tweaking some of the development’s proffers, especially concerning planned reduction in width of adjacent Wade Hampton Drive, S.W., from 36 feet to 32.