Annie Gould Gallery
Zoning in Density opponents argue in court that city didn’t follow state rules
By Sean Tubbs
Will opponents of Charlottesville’s new zoning code get a court trial to argue against recent rules?
That answer will not be known for at least several months following a 90-minute hearing last week on a motion from the city for Circuit Court Judge Worrell to dismiss the case.
Charlottesville City Council adopted a Development Code last December that allows more homes to be built on all properties within city limits. At the lowest level, parcels that used to be restricted to one unit can now have at least three.
On January 16, a group of residents filed a suit arguing their property values would be harmed by the additional density and alleging that the city did not perform a rigorous study of its effects on transportation infrastructure as required by Virginia law.
“The city failed to do what the General Assembly told them to do,” said Michael Derdeyn, a Flora Pettit attorney hired by the group, at the hearing. “The process was flawed.”
Derdeyn says a court trial would allow evidence to be submitted to prove the city did not send enough information to the Virginia Department of Transportation on the impacts that additional density might have.
The city responded that the opponents sought to use the courts to achieve what they could not do through the legislative process.
“The new zoning ordinance (NZO) identified a significant problem, which was a lack of affordable housing,” said Greg Haley of the law firm representing the city, Gentry Locke.
Haley said the new zoning was adopted as part of the Cville Plans Together process, which includes Council’s adoption of an affordable housing plan in March 2021 as well as a new Comprehensive Plan in November
2021. He said the zoning puts into practice values the council sought to adopt.
“It allows multifamily units in all zoning districts,” Haley said.
A major priority for Council was to distribute housing production across the city, but the study showed that the actual process would be “inherently incremental” and not rapid, Haley said. An inclusionary zoning analysis in the summer of 2023 estimated that 1,300 new units could be built over three years.
“You have conclusions from staff that the infrastructure is sufficient,” Haley said. A trial would not be warranted because the legislative body offered multiple forums for disagreements to be aired.
Derdeyn said the city’s rate of change analysis only looked at residential neighborhoods and did not study the potential impact on existing mixed-use corridors, where residential density is now unlimited with no maximum cap.
“They didn’t analyze the other parcels,” Derdeyn said. “They looked at part of the puzzle. They didn’t even look at the whole city.”
This is the second time Worrell has presided over a hearing involving these same issues. In August 2022, he dismissed three of four counts in a previous suit to overturn the Comprehensive Plan. At the time, he ruled the plaintiffs could not bring the case forward because they could not demonstrate any harm had been done to them through adoption of the plan.
Derdeyn said that harm is now demonstrated and the case should go to trial.
“Your honor said we had to wait until the zoning,” Derdeyn said. “The ordinance passed and now we are here.”
After a 90-minute hearing, Worrell made no decision and invited both attorneys to submit closing arguments. He plans to follow up with a written opinion.
“Suffice it to say, it’s an interesting
ment,” Judge Worrell said.
The zoning map adopted by Council in December 2023 sets up a future with more housing, but the plaintiffs in the case (three of whom are on Rugby Road or Rugby Avenue) argue the city should have done more study on the impacts of the additional density.
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