Judge revives Charlottesville zoning lawsuit
Charlottesville’s most-watched, and seemingly concluded, lawsuit — the one challenging the recent rezoning of the city — has lurched back to life.
Circuit Court Judge Claude Worrell, who just weeks ago declared the city in default for missing a deadline, issued a Friday afternoon opinion reversing course and agreeing that the city justified its request to reopen the case.
“While this court does not comment on the likelihood of success,” wrote Worrell, “it does find that the city’s argument here, combined with its other arguments, leads the court to conclude that this matter should be considered on the merits.”
The opinion revives the legal battle over Charlottesville’s recent “upzoning,” which wiped out single-family-only districts in favor of denser construction, such as townhouses, duplexes and apartment buildings, in order to address what’s known as the “missing middle” in development.
“I’m thrilled we will be able to continue to engage with the zoning lawsuit based on its merits, not a technicality,” City Councilor Natalie Oschrin told The Daily Progress in a Saturday morning text. “The rezoning was a long and involved process with ample opportunity for public engagement.”
This fight traces it roots to Cville Plans Together, a multiyear effort that began in 2020. Proponents hailed the resulting rezoning as a bold step toward unlocking the supply of housing and bolstering affordability in a city, Virginia’s second-most expensive real estate market where properties once considered “starter homes” are regularly listed for more than half a million dollars. Critics countered that the very concept of supply and demand was flawed and that speculators would simply overwhelm neighborhoods with oversized projects and threaten the city’s infrastructure and history.
City Council adopted the new zoning ordinance, known by planners and litigants as the NZO, in December 2023. The ordinance attracted a lawsuit a month later, just before it took effect, filed by nine Charlottesville homeowners, including the suit’s lead plaintiff, retired University of Virginia law professor Edward White.
White and the other eight plaintiffs contended that the city skipped a key statutory step: sending the ordinance overhaul to the Virginia Department of Transportation, a prior review required if rezoning would “substantially affect transportation on state-controlled highways.”
For months the city fought back by filing documents that whittled down, but never erased, the plaintiff’s complaints. By late spring, the city faced a deadline to answer an amended complaint. That’s where the defense went awry.
May 21 came and went with no answer. The plaintiffs pounced, filing for a default judgment. And on June 30, Worrell agreed from the bench, finding “no good cause” for the city’s tardiness.
But lawyers for Charlottesville kept pressing. They argued that their “inadvertence” should not doom the entire zoning ordinance. More crucially, last Monday, they filed a six-point submission of “substantial defenses,” a set of arguments contending in part that the ordinance might not have required VDOT’s sign-off after all.
“The city must determine whether its proposed rezoning falls under the requirements,” a VDOT representative recently told The Daily Progress.
Worrell homed in on that point. He noted that, contrary to opponents’ claims, a more dense and urban city could conceivably generate “lower maximum daily generation,” i.e. less motor vehicle traffic.
“Defendant need not prove that they are likely to succeed at trial,” wrote Worrell, “merely whether there is a possibility that there will be success at trial.”
That possibility, which Worrell emphasized with bold-face type, was enough to change his mind.
“The City has now met this threshold,” he wrote, “and the court hereby exercises its discretion to grant the city’s motion to reconsider.”
Worrell’s 11-page ruling does not bless the city’s zoning ordinance, nor does it guarantee victory for either side. Instead, it sets the stage for a trial on whether Charlottesville complied with state law when it eliminated single-family zones. The lawsuit will now be decided, as Worrell wrote, on the merits, not on a procedural misstep.
Friday’s opinion drew outrage from Jerry Cox, a Charlottesville resident and managing director of the Forerunner Foundation, an organization which has been assisting the nine plaintiffs battling the city — as well as residents in Arlington and Alexandria challenging their own new zoning codes.
“Mere words cannot express ...” Cox told The Daily Progress in a truncated text.
Friday’s ruling was a dramatic swing from possible defeat to possible victory for the proponents of City Council’s sweeping reimagining of land use in Charlottesville.
But already, there are signs within City Hall of wavering support for the new zoning ordinance, or at least some components, such as its elimination of oversight for big projects. One of the five councilors who unanimously green-lighted the new code recently lamented the loss of the special permitting process. City Councilor Michael Payne spoke last Tuesday to the Board of Architectural Review when a tall building was proposed on the site of a moribund West Main Street cupcakery near a historically Black neighborhood.
“Please, if anyone in the audience is concerned about this, you need to email City Council to change the zoning to reintroduce more special-use permits,” Payne urged.
However, at least one councilor is urging the city to stay the course: Oschrin.
“Streamlining the planning, review, and permitting process was something we discussed and all seemed keen on at the council retreat last weekend,” the energetic urbanist said. “This applies to smaller buildings as well as larger buildings if we are to meet the moment, which is incredibly high demand for housing of all types.”
The next step in the legal fight will be the discovery process, the information-sharing between the two sides before the actual trial, which has been scheduled to last up to nine days beginning June 22 of next year.
The outcome could shape Charlottesville’s growth for decades. Will new housing trickle slowly, as city consultants predict, or will it flood, as skeptics fear, into established neighborhoods?
The only certainties are that a seemingly lifeless lawsuit has been resurrected and the new zoning ordinance, temporarily withdrawn in the wake of Worrell’s earlier utterance, may once again have the force of law.