Politics & Government

Zoning Appeals Board Seeks Outside Legal Counsel

Board of Zoning Appeals members say they are uncomfortable having no legal counsel or city legal counsel after city appeals BZA decision to Alexandria Circuit Court.

Alexandria’s Board of Zoning Appeals is requesting that City Council give it an outside lawyer who could advise the body on matters relating to the on the waterfront petition.

The a group of citizens who appealed the city planning director’s decision to reject their petition asking that the riverside area near their homes not be rezoned allowing development such as hotels.

In turn, the city filed a suit in Alexandria Circuit Court, asking it to reconsider the BZA’s ruling. The case was filed as City Council for the City of Alexandria and Faroll Hamer, Director of Planning and Zoning for the City of Alexandria v. the City of Alexandria Board of Zoning Appeals and April Burke and Elizabeth Gibney and Marie Kux and Michael Peck and Elizabeth Baldwin. The title spurred confused community discussion that the city was, in effect, suing itself as well as some of its citizens.

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City Attorney Jim Banks repeatedly explained that the city is appealing a decision made by the BZA, which acts similar to a legal body, and is definitely not suing the BZA. The title of the case was filed that way as a “technical matter,” he said. Later, the City Attorney’s Office amended the title of the case so it did not appear as adversarial, but damage had been done.

Banks explained to the BZA members at a Friday evening work session at that the initial filing was not done that way to appear adversarial. “We were all surprised by the reaction it got,” he said, adding that it had been filed in that manner “because that’s the way it has always been done” and he realized that’s a “piss-poor reason.”

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During the work session, BZA members deliberated over whether they should seek outside counsel because of the remarkable situation in which the city’s attorney could represent them on procedural matters and issues but not on broader, weightier topics.

BZA Chairman Mark Allen summed it up by saying “the lawyer who helped draft the very brief that said what a bad job we did is also the one who says we don’t need counsel.”

Allen compared their situation to that of a “little old lady” who gets a collection notice and calls the lawyer listed on the notice who tells her not to worry about getting a lawyer so there won’t be anyone speaking on the lady’s behalf.

Banks explained at the work session that the city manager made a financial decision not to supply outside legal counsel because the council “in requesting a review of the decision does not in any way require the BZA to answer for its decision other than to provide the record,” according to a Wednesday, May 16 memo to council from the city manager.

Additionally, at the work session many BZA members expressed concern that city staff would be compiling their record to send to court and asked if that was not a conflict of interest. City staff said it was standard protocol and would not be a conflict.

BZA members also said if they did not have outside legal counsel, they would not understand how to proceed if additional materials were requested of them by a judge, although both Banks and a McGuire Woods lawyer hired by the city explained that would be highly unlikely.

“What gave people heartburn is that we continue to be named as a respondent in the case—and that’s someone who may have to give a response,” Allen said. 

Ultimately, no verbal or written "antacid" could placate the majority of members, who voted 6-1 to send a letter to council asking it to appropriate funds for a lawyer. Member Stephen Koenig was the dissenting vote. The group expressed its wish that council address the issue at its upcoming meeting Tuesday night.


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