The Little High Neighborhood Association filed a lawsuit against the city of Charlottesville on Thursday, alleging that City Council did not follow permitting procedures for a proposed apartment complex at 1011 E. Jefferson St.
“We assert that the Special Use Permitting process, which granted the developers the right to quadruple the density [of the apartments], was deeply flawed,” LHNA president Kate Bennis said at a news conference.
In July 2017, City Council voted 3-2 to grant a special-use permit to the Great Eastern Management Company to build up to 126 units on the 1.46-acre property. The site is currently occupied by a two-story medical office.
The special-use permit increased the density allowed on the property from 21 units per acre to 87 units per acre.
The city Planning Commission recommended denial of the permit on a 4-3 vote in October 2016. Many residents of Little High Street and nearby neighborhoods spoke against the application at both meetings.
Soon before City Council’s vote on the permit, GEMC changed its concept plan for the development to shift its massing away from 11th Street NE and towards 10th St. This raised the height of the 10th St. side of the building to five stories and lowered the 11th St NE side to three stories.
The LHNA lawsuit claims that City Council exceeded its authority by granting these changes to the special-use permit application.
“The Applicant submitted the [special-use permit] for a vote by City Council after substantial changes to the project had been made,” the lawsuit reads. “The project should have gone back to Planning Commission as a Special Use Permit Modification, but instead was submitted directly to the City Council for a vote.”
David Mitchell, principal at GEMC, said the shift in massing was an insubstantial change that had been suggested by residents of the Little High Street neighborhood.
Bennis said residents voiced support for the design change when they also asked developers to settle for half the density that GEMC ultimately requested. She said this density would have resulted in a maximum height of three stories on 10th St.
“[GEMC] misunderstood and misrepresented our request,” Bennis said in an interview. “And it was a big shift; it should have gone back to the Planning Commission, regardless of whether we had asked for it or not.”
The LHNA lawsuit also claims that City Council’s public hearing on the permit was invalid because the council reduced allotted time for comments to two minutes per person from the standard three minutes.
Current meeting procedures allow City Council “to suspend or amend the rules in the manner provided in the City Code” and note that “the failure… to strictly comply with the provisions of this document shall not invalidate any action of City Council.”
The LHNA has asked the Charlottesville Circuit Court to order Council to return the project to the Charlottesville Planning Commission for review and enjoin GEMC from taking further action on the development.
City spokesman Brian Wheeler declined to comment on the LHNA lawsuit.
LHNA has not hired an attorney for the case. The lawsuit was filed by 17 residents of the Little High Street neighborhood, including former Councilor Bob Fenwick.
Fenwick voted against the special-use permit for East Jefferson Place in 2017, along with Councilor Kathy Galvin. He said he could not remember similar a pro se class action lawsuit against local government during his tenure in public office.
“This is a novel way to do it. … But it won’t be the last time,” Fenwick said.
The Planning Commission approved a preliminary site plan for East Jefferson Place in March. Mitchell of GEMC said the company is preparing to submit its final site plan.
“We went through every process, we checked every box. We are moving forward,” Mitchell said.
“This frivolous lawsuit is an example of why it costs so much to live here,” Mitchell added. “We are not building high-end condos. These are the solid, middle-of-the-road apartments that we don’t have enough of. At the end of the day, this is what the city needs.”
GEMC has committed to building four affordable housing units to satisfy Charlottesville’s requirements for special-use permits to increase density. The units could be included in the E. Jefferson St. complex or constructed elsewhere in the city.
“Affordable housing was something that this neighborhood particularly wanted more of,” Bennis said. “From our point of view, this was a miniscule amount [of affordable units].”
Little High Street resident Hal Movius is a visiting executive lecturer at the Darden Graduate School of Business who specializes in negotiation. He said one goal of the LHNA lawsuit was to motivate City Council to negotiate more effectively with developers in collaboration with residents.
“Councilors are put in a position where they feel like they have to say ‘yes’ or ‘no’ to developers,” Movius said. “Our hope is that the process will change so council doesn’t put itself in that position.”
