A decision by the Alexandria Planning Commission, City Council and Planning and Zoning Department staff to deny a proposed development adjacent to one of the city's most congested intersections has been upheld by Alexandria Circuit Court.
In a decision handed down May 25 by Judge J. Howe Brown, it was determined "there was substantial evidence present to support the decision of the council" to uphold the recommendation of the Planning Commission to deny approval of a request for a development site plan to construct a 6,463 square-foot, mixed-use-building at the intersection of South Patrick and Franklin streets.
The initial suit, brought by the applicant, 1007 L.L.C., 2010 N. St., Washington, D.C., also included a $1 million request for damages against Southwest Quadrant Civic Association, Old Town Station Owners' Association and Old Town South Owners' Association each based on the claim the "associations opposed the development ... because they wanted to block commercial development on the site ...."
Each of the associations cited had submitted petitions, signed by more than 150 area residents, to the Planning Commission and had testified at both the Planning Commission and City Council public hearings in opposition to the proposed development. Their opposition to the proposed use, and that of the planning staff, was based on three points:
* The negative impact of the development on traffic flow on Patrick Street approaching the Route 1 entrance to the Capital Beltway.
* Delivery vehicles being forced to utilize adjoining streets in the adjoining residential neighborhoods due to the narrow curb cut thus limiting their access.
* Forcing truck traffic into those adjoining neighborhoods is "contrary to the goal of the Southwest Quadrant chapter of the Master Plan to protect residential areas from through traffic resulting from redevelopment of the area."
INCLUSION of the associations in the initial action by the applicant was determined to be a "SLAPP" suit and was dismissed prior to hearing the case against the city. However, a motion for sanction has now been brought by two of the owners' associations against 1007 L.L.C. "for filing and failing in timely fashion to withdraw the complaint ...." They are seeking reimbursement to the associations for costs they incurred while they were parties to the suit.
"The developer's lawsuit is a classic example of a "SLAPP" suit — strategic lawsuit against public participation — intended to make it clear that any citizen or citizen's group opposing development proposed by the plaintiff (1007 L.L.C.) had better think twice before going public with such opposition," said Victor M. Glasberg of Victor M. Glasberg Associates, counsel for the associations, in his motion.
"This is the epitome of a SLAPP suit. It is on its face intended to demoralize, discourage and intimidate the associations. It is the very manifestation of harassment sought to be prevented," Glasberg wrote.
His motion for damages is based on another 1994 Alexandria case, Gibson v. City Alexandria, in which a neighborhood association petitioned and testified against a special use permit before the City Planning Commission. In that case, the judge found, "This right to petition is so important to our system of government that the courts have shielded citizens from liability even when the position promoted was wrongful."
In addition to City Council and Planning Commission, the original suit by 1007 L.L.C. specifically named Eileen Fogarty, director, Alexandria Department of Planning and Zoning and Jeffrey Farner, division chief, Department of Planning and Zoning. It accused them of specifically using "their positions to extract from the developer concessions not properly required for approval of the site plan."
To this charge Judge Brown decided, "City staff all acted properly," according to attorney John Britton, arguing for the Planning and Zoning staff.
"The judge decided there was no illegal taking of this property by denying their proposed plan of use. There can be other uses of this property," Fogarty said.
"He said that city staff, and particularly the Planning and Zoning Department, acted properly, professionally and timely. As for council, he said they listened to the public and found that the proposed development of this site did not meet the requirements of no negative impact on the community," Fogarty said.
"The city is delighted the court upheld City Council's decision. Council absolutely acted properly," Fogarty said.
INITIATED AT the Planning Commission meeting of Oct. 7, 2003, the applicant, 1007 L.L.C, requested a development plan to construct what they called "Gateway Center." It was to be a mixed-use-building housing retail, office and personal services uses. It was deferred at that meeting and the subsequent meeting of Nov. 6, 2003.
It was again considered during the Commission's meeting of Dec. 2, 2003 where it was denied on a unanimous vote of 7 to 0. Specifically the vote was based on the rationale, "The proposal did not demonstrate compliance with the requirements of the zoning ordinance, ... which requires adequate provision to be made for roadways and access into and out of the project ...."
Commissioners also stressed, that the "design and location of roadways be compatible with or not adversely affect the surrounding property or create problems on the public streets surrounding the project." It was this last element that recognized resident concerns of truck traffic on residential streets if the project were approved as presented.
Citizens' testimony, cited in the staff report, made the following points:
* David Lantzy said, "The design has the appearance of a strip mall which is not appropriate for Old Town." He preferred to see the property developed as residences.
* Raymond Johnson said, "Commercial development is inappropriate in that location and that recent residential developments have improved the area."
* Lillie Finklea said, "Historically businesses have been unable to thrive at this location and that residential use would be appropriate for the site."
Presenting the case for the applicant before both the Planning Commission and City Council, Attorney Harry P. Hart stated, "Throughout this case, the applicant has gone beyond the requirements of the law to meet the desires of others, both of staff and the neighborhood. He is willing to continue in that spirit."
Hart concluded his arguments to council stating, "The Planning Commission's denial of the site plan was arbitrary and capricious and should be reversed ...." Attorney Paul J. Kiernan, Holland and Knight LLP, Washington, DC, who served Of Counsel for 1007 L.L.C. in the suit stated "no comment" when contacted for his opinion on Brown's adjudication.
In that opinion, Brown noted, "Access is off Route 1, where there is the potential for obstruction and conflict on a major road. Route 1 has 63,000 vehicles a day on it ... traffic and access were consistently raised at the council meeting."
Explaining his decision Brown stated, "I find ... there was substantial evidence present to support the decision of council. It wasn't a lock-shut case. It had points on both sides, but it was sufficient on ... their (council) side of the decision to support it."