The Virginia Supreme Court has refused to hear an appeal of the October, 2017, decision of a three-judge panel of the same court, which unanimously refused to hear an appeal of a lower court decision which had ruled in favor of the City of Alexandria in the La Bergerie land-use case. While the plaintiffs and their “pro bono” counsel have 90 days to appeal this decision to the U.S. Supreme Court, their chance of success in being granted certiorari in a local land-use case with dubious claims to involving any constitutional issues is equally dubious. The original proposal was unanimously passed by the Alexandria Planning Commission and the Alexandria City Council in 2014, and the Old Town plaintiffs’ case has been defeated in court on the merits again and again and again. No new legal ground was set forth here.

A simple request to open a French restaurant and tiny inn was met with the usual charges drummed up in Old Town land-use cases – commerce, traffic, noise and trash. One need only visit the site to see it is located on a noisy, four-lane Washington Street and surrounded by existing commercial uses. We are not aware that restaurant patrons spilled out into the streets of La Bergerie’s last Old Town location acting as if they were exiting the 9:30 Club after moshing in the floor pit. Assuming regular trash services, a restaurant use should be no more problematic than trash from any other location, be it residential or commercial. Old Town has been a mix of commercial and residential uses since it was founded. It is located adjacent to a capital city of world-wide importance and the Potomac River long ago ceased to provide a barrier that will preserve Alexandria in amber. It is the very mix of commercial and residential uses that ensures Old Town’s vibrancy and rich heritage and keeps it from becoming the cliché it never was – an outdoor Colonial museum. This case has sent an unfortunate and chilling message that small businesses in Old Town may pay a debilitating price to thrive.

Not including staff time and the hours spent deposing members of the Planning Commission and City Council, this case has cost the City more than $1.1 million in taxpayer funds – funds much better used to provide needed services and to improve city infrastructure such as parks, schools, sewage treatment, and transportation. Le Bergerie’s owners have incurred hundreds of thousands of dollars in legal fees and have lost a good portion of their livelihood for a restaurant that was slated to open in 2016. The plaintiffs were represented pro bono by Williams and Connolly. 

Pro bono. From the Latin and meaning “for the good”. It is often used to describe legal services provided free of charge but it should never be separated from the ethical concept of “for the good”. It is past time for the plaintiffs and their lawyers to drop this matter and not waiting until the end of the 90-day appeal period to communicate this intent would be a good place to start.