BALLSTON-VIRGINIA SQUARE

Civic Association Newsletter

December 1996 - Volume 20, No. 3



LAWSUIT CLAIMS BOARD WRONG IN DEMETER HOUSE VOTE

As the Association reported in the October/November 1996 Newsletter, the Board voted 3-2 to approve a maximum of 18 persons, at the County Board Meeting of October 5, 1996, subject to the conditions of the staff report and with a review in six months, the special use permit requested by Vanguard Services Unlimited, contract owner, to put the Demeter House in the Barcroft residential R-6 district. Chairman Jim Hunter, Vice-chair Ellen Bozman, and Board Member Al Eisenberg voted to support the Demeter House proposal, and Board Members Paul Ferguson and Chris Zimmerman voted in opposition.

The Association has obtained public documentation regarding the lawsuit, because if the County's position is upheld, it may well be (as Barcroft residents argued at the County Board hearing) that accommodating 18 residents plus six staff in a single-family residence in any R-6 neighborhood will become the standard governing the County's consideration of similar use permits in the future. Based on the public documents, it appears that the County and Vanguard have moved to dismiss specific counts in the complaint:

1) Count V (the Board was not advised of alternative sites)

2) Count VI (the Board did not investigate Vanguard's financial capability to maintain the property or duly take into account Demeter House's violations of its current use permit)

3) Count VII (the use will constitute a nuisance)

4) Count VIII (unlawful taking and denial of substantive due process)

5) County IX (seeking injunction against the sale of the property)

Vanguard and the County also argue that the plaintiffs are not entitled to relief, because the complaint does not allege that the Board's decision to grant the conditional use permit to Vanguard is not a "reasonable accommodation" under the Fair Housing Act of 1988. Thus, they appear to contend that in cases where the grant of a conditional use permit satisfies the requirements of the Fair Housing Act, it cannot be challenged under state or local law. In essence, this implies that Arlington residents cannot invoke state and local ordinances designed to protect residential neighborhoods in any case where a County zoning decision is designed to "reasonably accommodate" group homes for persons covered by the Fair Housing Act (the mentally ill, mentally retarded, and persons in drug rehabilitation programs). Other arguments raised by the defendants include:

1) 22 persons related by blood, marriage, or adoption could occupy the proposed site without the need to obtain a use permit.

2) The consistent experience with groups homes in Arlington has demonstrated that they do not have an adverse effect on the health and safety of the community, nor are they a detriment to the public welfare or injurious to property and improvements.

3) Neighborhood Conservation Plans, even if adopted by the Board, are not enforceable as part of the Arlington County Comprehensive (Master) Plan.

4) The County Board was not required to base its decision to grant the conditional use permit on information brought to its attention at the Board's hearing.

5) Notwithstanding its receipt of a written request to obtain copies of incident reports in order to confirm the circumstances surrounding police activity at the current Demeter House facilities, the Board was not required to obtain such information.

6) Even if it can be shown that erroneous information was provided to the Board--such as the information concerning the nature and extent of police service to Demeter House, or the availability of alternative sites for the Demeter House program-- the Board's decision cannot be invalidated on that basis.

7) Whether or not Vanguard has the financial resources to properly maintain the property and comply with the conditions imposed under the conditional use permit is not a proper consideration in the Board's decision whether to grant said permit. Copies of the public documents related to this lawsuit follow for your information. If you would like additional information, or you would like to help support their efforts, call Jane White at (703) 521-0823, or write Jane White, Treasurer, Barcroft Legal Fund, 4216 South 4th Street, Arlington, VA 22204.

I. APPEAL FROM COUNTY BOARD ACTION; ACTION PURSUANT TO SECTION 15.1-493(G) CONTESTING COUNTY BOARD DECISION; PETITION FOR REVIEW OF CONDITIONAL USE PERMIT; MOTION FOR DECLARATORY RELIEF; AND PRAYER FOR INJUNCTION; (Date Received in Arlington Circuit Court, November 4, 1996)

V I R G I N I A : IN THE CIRCUIT COURT OF ARLINGTON COUNTY

Mary-Ellen Candage, Brian Golden, Ken and Wyvonna Hill, Steve Jobson-Oliver and Lina Shoobridge, Richard Knopman and Jennifer Tallarico, Pascal and Beth Lienard, William and Francoise Mengebier, Paul and Leslie Olkhovsky, and Jonas Robinson and Jane Shea,

Petitioners

v. Arlington County, Chancery #96-737

Commonwealth of Virginia

Serve: Barbara Drake, Arlington County Attorney

2100 Clarendon Blvd.

Arlington, VA 22201

and The County Board of Arlington,

Commonwealth of Virginia

Serve: Barbara Drake, Arlington County Attorney

2100 Clarendon Blvd.

Arlington, VA 22201

and Vanguard Services Unlimited

Serve: Deborah L. Volz, Pres. & CEO

506 N. Pollard Street

Arlington, VA 22203

and DOMINIC BOSCO and BARBARA BOSCO

17815 Marble Hill Road

Germantown, MD 20874

Serve: Secretary of the

Commonwealth, pursuant to Virginia Long Arm Statute

Defendants

APPEAL FROM COUNTY BOARD ACTION;

ACTION PURSUANT TO SECTION 15.1-493(G) CONTESTING COUNTY BOARD DECISION; PETITION FOR REVIEW OF CONDITIONAL USE PERMIT; MOTION FOR DECLARATORY RELIEF; AND PRAYER FOR INJUNCTION

Petitioners, Mary-Ellen Candage, Brian Golden, Steve Jobson- Oliver and Lina Shoobridge, Richard Knopman and Jennifer Tallarico, Pascal and Beth Lienard, William and Francoise Mengebier, Brent and Daphne Miller, and Jonas Robinson and Jane Shea, by counsel, pursuant to Section 8.01-184 of the Code of Virginia, 1950, as amended, move for a declaratory judgment against Arlington County, and the County Board of Arlington declaring that the action of the County Board in granting a special use permit to the Defendant, Vanguard Services Unlimited, is null and void and that this Court issue an injunction against the Defendants as hereinafter requested, on the grounds set forth below:

1. Petitioner Mary-Ellen Candage resides at, and is an owner of record of, the premises located at 4316 South Sixth Street, Arlington, Virginia.

2. Petitioner Brian Golden resides at, and is the owner of record of, the premises located at 412 South Taylor Street, Arlington, Virginia.

3. Petitioners Ken and Wyvonna Hill reside at, and are the owners of record of, the premises located at 618 South Stafford Street, Arlington, Virginia.

4. Petitioners Steve Jobson-Oliver and Lina Shoobridge reside at, and are the owners of record of, the premises located at 4407 South Sixth Street, Arlington, Virginia.

5. Petitioner Richard Knopman and Jennifer Tallarico reside at, and are the owners of record of, the premises located at 4406 South Fourth Street, Arlington, Virginia.

6. Petitioners Beth and Pascal Lienard reside at, and are the owners of record of, the premises located at 4313 South Sixth Street, Arlington, Virginia.

7. Petitioners William and Francoise Mengebier reside at, and are the owners of record of, the premises at 4400 South Sixth Street, Arlington, Virginia.

8. Petitioners Paul and Leslie Olkhovsky reside at, and are the owners of record of, the premises located at 4418 South Fourth Street, Arlington, Virginia 22204.

9. Petitioners Jonas Robinson and Jane Shea reside at, and are the owners of record of, the premises at 4308 South Sixth Street, Arlington, Virginia.

10. The Petitioners have standing to bring this cause pursuant to Section 15.1-493 of the Code of Virginia, 1950, as amended, by virtue of the fact that they are property owners in Arlington County and will be aggrieved by the action of the County Board which is the subject of this proceeding.

11. Defendant, Arlington County ("County"), is a political subdivision of the Commonwealth of Virginia.

12. Defendant, County Board of Arlington ("County"), is the governing body of Arlington County, with responsibility to grant or deny applications for conditional use permits.

13. Vanguard Services Unlimited is a corporation transacting business in the State of Virginia, and was the applicant before the County Board of Arlington for the use permit which is the subject of this proceeding. Upon information and belief, it has entered into a contract to purchase the property located at 4317 South Sixth Street in Arlington, Virginia, which is the subject of this proceeding.

14. Dominic Bosco and Barbara Bosco are the owners of record of the property located at 4317 South Sixth Street in Arlington, Virginia. Jurisdiction over these Defendants is afforded by virtue of Section 8.01-328-1(6) of the Code of Virginia as they have an interest in property in this state.

15. On August 7, 1996, Vanguard Services Unlimited ("Vanguard") submitted an application to the County (Use Permit Request #U-2895-96-1) for a conditional use permit allowing Vanguard to operate "a dormitory group home for 22 substance abusing women and their dependent children" in a single-family dwelling at the premises known as 4317 South Sixth Street, located in the Barcroft neighborhood of Arlington. That dormitory group home is known as Demeter House.

16. On August 27, 1996, the Barcroft School and Civic League voted overwhelmingly to oppose the grant of Vanguard's conditional use permit application.

17. On September 12, 1996 Arlington Neighborhood Conservation Advisory Committee voted, by a 12-2 margin, to support the Barcroft School and Civic League in opposing the grant of Vanguard's conditional use permit application.

18. On September 24, 1996, the Arlington County Planning Commission declined to vote on a motion to recommend that the County Board approve the Vanguard request -- the effect of which was not to endorse the application -- and, by a 5-6 margin, defeated a motion to recommend approval of Vanguard's conditional use permit at 18 residents.

19. On October 1, 1996, the Arlington County Civic Federation voted to oppose the grant of Vanguard's conditional use permit on the grounds that it is inconsistent with the spirit and intent of the General Land Use Plan and is inconsistent with R-6 zoning.

20. On October 5, 1996, the County Board voted, by a 3-2 margin, to approve said use permit application, but for 18, not 22 residents, and with several conditions attached to the use permit.

21. The Arlington County Zoning Ordinance provides that conditional use permits "may be issued," provided that the County Board shall find that the conditional use will not: "(1) affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use; (2) be detrimental to the public welfare or injurious to property or improvements in the neighborhood; (3) be in conflict with the purposes of the master plans of the county." Arlington County Zoning Ordinance, Section 36.G.1.

22. For the reasons set forth, the action of the County Board violates the mandates of the Arlington County Zoning Ordinance and therefore is null and void.

23. Petitioner landowners, who reside in and own properties close to the premises at 4317 South Sixth Street, are aggrieved by the County's vote to permit the conditional use ("said use") requested by Vanguard.

24. This Court has jurisdiction over this action pursuant to section 15.1-493G. of the Code of Virginia.

Count I

The Use Will Drastically Change the Character of the Neighborhood; Failure to Observe Va. Code Section 15.1-490

25. Paragraphs 1 through 24 are incorporated herein by reference.

26. The dormitory use approved by the County Board will concentrate eighteen residents, plus part-time staff, volunteers, and other care providers, as well as lawyers, clergy, and other visitors, in a single-family home located at 4317 South Sixth Street, immediately adjacent to five single- family residences.

27. Unlike other dormitory facilities, which typically are located in transition areas in close proximity to commercial zones with higher-density uses or major thoroughfares, the approved site is located on a narrow street in the core of an R-6, One-Family Dwelling district, some one-half mile from the nearest commercial or multi-family use.

28. The number of residents and staff permitted under the use permit far exceeds that of any other dormitory-type facility in Arlington operating under a conditional use permit in an R-6 neighborhood. The population density of said use far exceeds that of any other nearby residence, and the number of occupants in the house will increase the current population density of South Sixth Street between Taylor and Wakefield Streets by more than one-third.

29. The use of the property for a dormitory-type residence will increase substantially the existing level of noise and traffic on the street.

30. In addition, using the property as a multi-resident facility will entail the applicant having to install a commercial-size trash dumpster on the side of the property, having to provide for an external fire escape, and having to repave and enlarge the current driveway to make an expanded parking lot for six vehicles. Following these physical alterations, the property will no longer resemble a single-family residence, will be conspicuously out of place in a neighborhood with small yards and narrow streets, and will likely be unsuitable for use again as a single-family residence, and these facts were known or should have been known to the County Board.

31. The approved site is not suitable for the drastically higher- density use associated with the use permit given by the County, and this fact was known or should have been known to the County Board.

32. The intense activity associated with the proposed use, and the required physical alterations to the proposed site, are not in harmony with the orderly and existing development of the otherwise purely single-family residential character of the surrounding neighborhood, and these facts were known or should have been known to the County Board.

33. The daily pedestrian and automobile traffic, possible police presence, noise, and transiency associated with the proposed use of the property will substantially interfere with Petitioners' reasonable and comfortable enjoyment of their property, and these facts were known or should have been known to the County Board.

34. Section 15.1-490 of the Code of Virginia imposes upon the County Board the duty to give consideration to the impact of the proposed use on the current neighborhood. In granting Vanguard Services Unlimited's use permit application, the County Board failed to give "reasonable consideration [to] the existing use and character of [surrounding] propert[ies] . . . and the encouragement of the most appropriate use of land" and thereby violated the applicable Code section.

35. The County Board's approval of said use at the proposed site is arbitrary, capricious, unreasonable, and inconsistent with good zoning principles. As such, the grant of such use permit is unlawful. In addition, the Board's approval of the use will have the effect of adversely affecting the Petitioners' ability to enjoy and use their property and amounts to a taking without due process of law.

Count II

Failure to Follow Arlington County General Land Use Plan and Barcroft Neighborhood Conservation Plan

36. Paragraphs 1 through 35 are incorporated herein by reference.

37. The Arlington County General Land Use Plan (hereinafter referred to as the "GLUP") is an element of the Arlington County Master Plan. A purpose of the GLUP is to "preserve the existing character of single-family . . . neighborhoods."

38. The use approved by the County Board will not "preserve the existing character of [the] single-family neighborhood" that surrounds 4317 South Sixth Street. Said use therefore is in conflict with the purpose of the Arlington County General Land Use Plan.

39. The GLUP provides that neighborhood conservation plans shall serve as a guide to the County Board and staff when considering proposals for conditional use permits within the boundaries of a neighborhood. The Barcroft Neighborhood Conservation Plan (hereinafter referred to as "BNCP") was adopted in general principle by the County Board on July 11, 1990. Listed among its most important goals is, [that it] "Preserve the neighborhood's essential character as an area of single-family homes." The BNCP further states that Barcroft "[r]esidents . . . want to preserve the uncrowded atmosphere of the neighborhood as much as possible."

40. Under the terms of the GLUP, the Barcroft Neighborhood Conservation Plan should have caused County staff and the County Board to conclude that the proposed Vanguard use permit application was inappropriate for the neighborhood, but the written recommendation by the Arlington County Planning Staff to approve the Vanguard application for a use permit made no mention of the BNCP and, ostensibly, did not consider its impact.

41. Under the terms of the GLUP, the Barcroft Neighborhood Conservation Plan should have led the County Board to conclude that the proposed Vanguard use permit would be contrary to the letter and the spirit of the GLUP. Accordingly, the Board failed to give reasonable consideration to the contents of the Barcroft Neighborhood Conservation Plan.

42. The County Board failed to adhere to its stated procedure and criteria for considering a conditional use permit within the boundary of the Barcroft neighborhood and failed to give "reasonable consideration [to] the [Arlington County] comprehensive plan[,]" Virginia Code Section 15.1-490, and accordingly, the action of the County Board in granting the conditional use permit which is the subject of this proceeding is null and void.

43. The County Board's decision to approve said use is in conflict with the purposes of the Arlington County Master Plan as reflected in the General Land Use Plan and Barcroft Neighborhood Conservation Plan. As such, the approval of said use permit is unlawful.

44. In approving the proposed Vanguard special use permit, the County Board acted arbitrarily and capriciously and in contravention of land use plans it was bound to follow. Accordingly, the action of the Board is not justifiable or sustainable under existing law.

Count III

The Proposed Use Will Cause Irreparable Harm to the Character of the Neighborhood and to Its Property Values

45. Paragraphs 1 through 44 are incorporated herein by reference.

46. The granting of the Vanguard use permit will cause drastic permanent and irreparable economic damage to the Petitioners and the surrounding neighborhood as it will create a multi-family, dorm-like facility for adults and children in a neighborhood which contains small lots and narrow streets and will cause a steep decline in the property values because of the actual and aesthetic problems with an unusual use of this type.

47. At the County Board's hearing on October 5, 1996, competent and objective evidence in the nature of realtors' expert analyses was introduced which conclusively demonstrated that this proposed use will impair substantially the value of Petitioners' nearby properties by diminishing their desirability as single-family homes.

48. The foregoing expert evidence was not effectively rebutted by the County Planning Staff's analysis of the effect of group homes on real estate values in neighborhoods in Arlington.

49. In granting the Vanguard use permit, the County Board failed to apply the Arlington County zoning ordinance "with reasonable consideration for . . . the conservation of properties and their values," Virginia Code Section 15.1-490, and thus violated applicable Virginia law.

50. There is no reasonable legal or factual basis upon which the County Board can find that the proposed dormitory use by Vanguard will not be seriously injurious to property and improvements in the neighborhood surrounding 4317 South Sixth Street. Accordingly, the grant of the Vanguard use permit is arbitrary, capricious, unreasonable, and not in accordance with applicable law.

Count IV

The Use Poses a Threat to the Health and Safety of the Community

51. Paragraphs 1 through 50 are incorporated herein by reference.

52. Upon information and belief, said use permit was issued by the Arlington County Board on the basis, in part, of erroneous statements of material fact made by the applicant Vanguard Services Unlimited concerning, inter alia, the circumstances surrounding calls for police service to Demeter House's current facilities. As such, the use permit granted by the County Board is void. Arlington County Zoning Ordinance, Section 37.1.

53. Contrary to representations made by agents for Vanguard Services Unlimited, upon information and belief, since 1992 there have been 33 calls to the Arlington County Police for service at Demeter House's current locations, 1301 and 1305 South Monroe Street, Arlington, VA. These calls include incidents involving suspicious persons or vehicles (6), robbery (1), larceny (1), wanted subjects (2), simple assaults (2), fighting (1), and "mental subjects" (3). Upon information and belief, several of the 33 calls for police service to Demeter House's current facilities were related to incidents arising within Demeter House or caused by Demeter House residents and/or their associates.

54. Prior to the October 5, 1996, County Board meeting concerning the Vanguard use permit application, County planning staff were requested in writing to obtain copies of police incident reports in order to ascertain the circumstances surrounding said calls for police service at Demeter House and thereby confirm whether the relocation of Demeter House would or would not affect adversely the health or safety of persons residing or working in the neighborhood surrounding 4317 South Sixth Street. Upon information and belief, both County planning staff and the County Board either failed to obtain these reports or failed to have accurate information provided to it prior to taking the action which is the subject of this proceeding.

55. The County Board's decision to grant the Vanguard use permit on the basis that it will have no adverse effect on the health and safety of persons residing or working in the neighborhood surrounding the proposed site at 4317 South Sixth Street was not based upon competent evidence.

56. In fact, the increased size of Demeter House, the past need for police services, and the close proximity to other homes make the proposed use a threat to the health and safety of the community. Accordingly, the action of the County Board in granting the permit which is the subject of this proceeding violates applicable law.

Count V

Upon Information and Belief, the Board Was Not Advised of Alternative Housing Available to Vanguard

57. Paragraphs 1 through 56 are incorporated herein by reference.

58. In addition to erroneous information regarding the need for and the extent of police service to Demeter House at its Monroe Street locations, upon information and belief, the applicant also represented to the Board that alternative housing for the program was not available and that this single-family home in a single-family neighborhood on a small suburban street with a narrow driveway which would have to be expanded into a parking lot was the only available site.

59. Upon information and belief, several alternative sites had been proposed to Vanguard which would have been preferable to the Sixth Street location, but Vanguard arbitrarily and capriciously refused to investigate alternative sites. Accordingly, it was inaccurate to advise the Planning Commission and the Board that no other property was available for the proposed use.

60. Accordingly, the Board was not advised of all salient and relevant facts and based its decision on erroneous information. As a result, the Board's decision is arbitrary, unreasonable, and capricious, and is not supported by applicable law.

Count VI

The Board Did Not Adequately Investigate Vanguard's Ability to Manage Its Operations, Observe the Conditions Placed Upon the Use, and Provide the Service Which Was the Subject of the Application

61. Paragraphs 1 through 60 are incorporated herein by reference.

62. Upon information and belief, Vanguard has experienced financial difficulties for some time and has been in violation of conditions placed upon its current use. Upon information and belief, the Board failed to undertake any independent investigation of the financial condition of Vanguard and its ability to operate the project for which the use is intended. In addition, Vanguard has in the past violated conditions placed upon its current use, and the Board failed to consider that it would most probably do the same at the Sixth Street location.

63. Accordingly, in failing to independently investigate Vanguard's financial capabilities to maintain the property, comply with the conditions imposed upon the application, and effectively operate the project pursuant to the proposed use, the Board acted unreasonably and was arbitrary and capricious in its decision to grant the special use permit.

64. In failing to take into account the fact that Vanguard has violated conditions imposed upon its current use, the Board acted arbitrarily and capriciously and its action is not in accord with applicable law.

Count VII

Nuisance

65. Paragraphs 1 through 64 are incorporated herein by reference.

66. The current property on South Sixth Street is an aberration in and of itself; it is a large barn-like structure that is surrounded by small single-family residences and that fronts onto the rear of a house with minimal setbacks on the front, the sides, and the rear.

67. The conspicuous and architecturally and visually inharmonious appearance of the structure in relation to the surrounding neighborhood will be exacerbated tremendously when 18 adults and children plus staff begin occupying the house.

68. In addition, at the current Vanguard facility, residents and staff will congregate in large numbers on the porch and smoke. The presence of a large group of adults smoking in a neighborhood within 300 feet of an elementary school will not present an image consistent with that of a quiet, desirable place to live.

69. The street on Sixth Street is small and narrow and cannot accommodate the increased traffic which will result if the proposed use is implemented.

70. Vanguard's operation of the Demeter House program under the conditional use permit granted by the County will entail the use of a large commercial dumpster on the side of the property to handle trash. Upon information and belief, at the current location on Monroe Street, there have been complaints about trash not being in the dumpster and about the presence of rodents. Not only will the dumpster be unsightly and aesthetically undesirable, but given the past performance at Monroe Street, it will probably contain trash which may spill out onto the ground.

71. Upon information and belief, there have been complaints at the Monroe Street property about loud noise and music emanating from the structure. Anticipating that the same type of activity will take place at the Sixth Street location, such noise and loud music will disrupt the peace and quiet of the neighborhood and effectively change its character.

72. All of the foregoing undesirable uses will cause a general decline to the neighborhood, flight by current owners as they attempt to sell their properties, and an irreversible decline in the property values of the community. Accordingly, the effect of permitting this use in the location for which it has been proposed is to maintain a nuisance which is contrary to the public welfare and good.

73. For the foregoing reasons, the action of the Board in granting the special use permit is arbitrary, capricious, unreasonable, and not supported by current law.

Count VIII

Failure to Follow Due Process of Law

Paragraphs 1 through 73 are incorporated herein by reference. As the property values decline because of the proposed use by Vanguard, the effect of such a decline will be to cause the adjoining residents to lose the value of their property without adequate compensation. Such a loss would violate the due process clause of the Constitution of the United States.

Count IX

Prayer for Injunction

Paragraphs 1 through 75 are incorporated herein by reference. Any attempted sale or conveyance of the property by the Defendants Dominic Bosco and Barbara Bosco to the applicant Defendant Vanguard for the purpose of using the property pursuant to the wrongfully granted conditional use permit which is the subject of this proceeding is contrary to current law, is violative of the Arlington County Zoning Ordinance, and would have the effect of forever changing the character and nature of the surrounding neighborhood, and accordingly, any such attempted sale or use by the Defendants Bosco and Vanguard should be enjoined by this Court.

WHEREFORE, Petitioners hereby move, through undersigned counsel, for a declaratory judgment that the Arlington County Board's grant of Vanguard Services Unlimited's conditional use permit request #U-2895-96-1 is unlawful, that the Defendants be enjoined as requested, and for such other relief as may be appropriate.

Respectfully submitted,

George W. Campbell, Jr., LAW OFFICES OF

GEORGE W. CAMPBELL, JR. & ASSOCIATES

1401 Wilson Boulevard, Suite 1007

Arlington, VA 22209

(703) 525-8500

Counsel for Petitioners

Mitchell W. Dale (#39872)

Law Offices, 4316 S. Sixth St.

Arlington, VA 22204

(703) 979-1024

Co-Counsel for Petitioners

II. DEMURRER, PLEA IN BAR, AND ANSWER OF ARLINGTON COUNTY AND THE COUNTY BOARD OF ARLINGTON COUNTY (Dated December 5, 1996)

V I R G I N I A: IN THE CIRCUIT COURT OF ARLINGTON COUNTY

MARY-ELLEN CANDAGE, et al.,

Petitioners,

v. In Chancery No. 96-737

ARLINGTON COUNTY,

COMMONWEALTH OF VIRGINIA, et al.,

Defendants.

DEMURRER, PLEA IN BAR, AND ANSWER OF ARLINGTON COUNTY AND THE COUNTY BOARD OF ARLINGTON COUNTY

Defendants, Arlington County and the County Board of Arlington County, Virginia, ("County Board"), (collectively Arlington County and the County Board are referred to hereafter as the "County"), by counsel, respond to the "Appeal from County Board Action; Action Pursuant to Section 15.1-1-493(G) Contesting County Board Decision; Petition for Review of Conditional Use Permit; Motion for Declaratory Relief; and Prayer for Injunction" (collectively "Petition") as follows:

DEMURRER

For its Demurrer, the County states as follows:

1. The Petition fails to state a claim upon which relief may be granted, because it does not allege that the Petitioners are currently aggrieved parties.

2. Counts V and VI of the Petition fail to state claims upon which relief may be granted, because the Counts are based entirely on the nature of the information that was before the County Board when it approved the use permit, which is irrelevant and not a proper subject of inquiry by the Court.

3. Count VII of the Petition fails to state a claim upon which relief may be granted, because the allegations in it rest entirely on speculation that the terms of the conditional use permit will be violated, which is not a proper consideration for the County Board in deciding whether to grant a use permit.

4. Count VIII of the Petition fails to state a claim upon which relief may be granted, because a decline in property values as a result of governmental regulation does not, without more, create a due process violation.

5. Count IX of the Petition fails to state a claim upon which relief may be granted, because the Peition is entirely without any factual allegations to support any claim that the sale of the property is illegal.

6. The Petition fails to state a claim upon which relief may be granted, because it fails to allege that approval was not appropriate as a reasonable accommodation under the federal Fair Housing Act, 42 U.S.C. Section 3601 et. seg.

Therefore the County respectfully requests that the Petition be dismissed, with prejudice, in its entirety and that the County be granted its costs and such other relief as the Court deems proper.

PLEA IN BAR

For its Plea In Bar, the County states as follows:

1. The Petitioners are not aggrieved parties.

2. Even if the facts alleged in the Petition were true, the County Board could have adopted the ordinance approving the conditional use permit as a reasonable accommodation under the federal Fair Housing Act, 42 U.S.C. Section 3601 et. seq.

Therefore, the County respectfully requests that the Petition be dismissed, with prejudice, in its entirety and that the County be granted its costs and such other relief as the County deems proper.

ANSWER

1. The County is without sufficient information to either admit or deny the allegations in paragraph 1, 2, 3, 4, 5, 6, 7, 8, 9, 14, 16, 17, and 19 and therefore denies them.

2. The County admits the allegations of paragraphs 11.

3. As to the allegations of paragraph 12, the County admits that under the County Zoning Ordinance, the County Board acts on use permits for conditional uses. The County does not know what is meant by the term "responsibility" and, therefore, is without sufficient information to admit or deny the remaining allegations of paragraph 12. The County denies that any legal entity exists which is called the "County Board of Arlington."

4. As to the allegations of paragraph 13, the County admits that Vanguard Services Unlimited ("Vanguard") was the applicant before the County Board for the use permit. On information and belief, the County admits the remaining allegations of paragraph 13.

5. As to the allegations of paragraph 15, the County admits that Vanguard submitted an application for a use permit for a conditional use pursuant to Section 36.G of the County's Zoning Ordinance on August 7, 1996, and further states that the application speaks for itself.

6. As to the allegations of paragraph 18, the County states that the Planning Commission failed to pass a motion to approve the use permit sought by Vanguard. The County denies all remaining allegations of paragraph 18.

7. As to the allegations of paragraph 20, the County admits that the County Board approved a use permit adoption of an ordinance and further states that the approval speaks for itself. The County denies the remaining allegations of paragraph 20.

8. The allegations of paragraphs 21, 34, 35, 63, 64, 73, 75, and 77 are legal conclusions requiring no response, but if any response is required, they are denied.

9. As to the allegations of paragraph 25, the County incorporates its responses to paragraphs 1 through 24 as if fully set forth herein.

10. The County denies the allegations of paragraphs 10, 22, 23, 24, 26, 28, 29, 31, 32, 33, 38, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 52, 55, 56, 58, 59, 60, 66, 67, 68, 69, 71, and 72. The County further states that any implication in these allegations that the County Board was required to base its decision on matters brought to its attention during the hearing is denied.

11. As to the allegations of paragraph 27, the County admits that the approved site is located in an R-6 District and denies the remaining allegations of paragraph 27.

12. As to the allegations of paragraph 30, the County admits that some changes to the property, the nature of which is not yet determined, are likely to be necessary for the approved use. The County denies the remaining allegations of paragraph 30.

13. As to the allegations of paragraph 37, the County admits that the County's General Land Use Plan ("GLUP") is an element of the County's Comprehensive Plan (also referred to as the "Master Plan"). As to the remaining allegations of paragraph 37, the County denies that the language, as quoted, is a stated purpose of the GLUP and states that the terms of the GLUP speak for themselves.

14. As to the allegations of paragraph 39, the County admits that in part the GLUP provides that "[T]hese [neighborhood conservation] plans serve as guides to the Board and staff when considering proposals for General Land Use Plan amendments, rezoning applications, site plans, use permits, variances and capital improvements within the neighborhoods' boundaries" and states further that the GLUP speaks for itself. The County admits that the Barcroft Neighborhood Conservation Plan was approved by the County Board on July 11, 1990, but states further that it is not part of the County's Comprehensive (Master) Plan. As to the remaining allegations of paragraph 39, the County states that the Barcroft Neighborhood Conservation Plan speaks for itself.

15. As to the allegations of paragraph 45, the County incorporates its responses to paragraphs 1 through 44 as if fully set forth herein.

16. As to the allegations of paragraph 51, the County incorporates its responses to paragraphs 1 through 50 as if fully set forth herein.

17. As to the allegations of paragraph 53, the County admits that there have been thirty-three (33) calls or eight (8) per year to the Arlington County Police and that the calls include incidents involving suspicious persons or vehicles (6), robbery (1), larceny (1), wanted subjects (2), simple assaults (2), fighting (1), and mental subjects (3). The County denies the remaining allegations of paragraph 53.

18. As to the allegations of paragraph 54, the County admits that a request was made to the County Planning Office from Mitchell W. Dale asking that information from the Police Department be obtained and made available for the County Board's consideration. The County further states that Mr. Dale's letter speaks for itself. The County denies the remaining allegations of paragraph 54.

19. As to the allegations of paragraph 57, the County incorporates its responses to paragraphs 1 through 56 as if fully set forth herein.

20. As to the allegations of paragraph 61, the County incorporates its responses to paragraphs 1 through 60 as if fully set forth herein.

21. As to the allegations of paragraphs 62, the County admits that there have been some minor violations of the current use permit. The County denies that the County Board is required to make an independent investigation and further denies the remaining allegations of paragraph 62.

22. As to the allegations of paragraph 65, the County incorporates its responses to paragraphs 1 through 64 as if fully set forth herein.

23. As to the allegations of paragraph 70, the County denies that it has received complaints about trash outside the dumpster and is without sufficient information to either admit or deny whether anyone else may have received such complaints. The County therefore denies the remaining allegations of paragraph 70.

24. As to the allegations of paragraph 74, the County incorporates its responses to paragraphs 1 through 73 as if fully set forth herein.

25. As to the allegations of paragraph 76, the County incorporates its responses to paragraphs 1 through 75 as if fully set forth herein.

26. The County further states that the County Board's approval of the use permit application was proper and valid under the County Zoning Ordinance, the Virginia Code, and the non- discrimination provisions of the federal Fair Housing Act, and all other applicable laws and regulations.

27. Any allegations in the Petition that are not specifically admitted are herein denied.

Therefore, the County respectfully requests that the Petition be dismissed, with prejudice, and that the County be granted its costs and such other relief as the Court deems proper.

ARLINGTON COUNTY AND COUNTY

BOARD OF ARLINGTON COUNTY, VIRGINIA

By Counsel Barbara S. Drake, County Attorney

Virginia Bar #36425

Carol W. McCoskrie, Assistant County Attorney

Virginia Bar #24395

2100 Clarendon Boulevard, #403

Arlington, Virginia 22201

(703) 358-3100

Counsel for Defendants Arlington County and County Board of Arlington County, Virginia

III. CROSS-BILL OF COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF (Dated December 5, 1996)

V I R G I N I A: IN THE CIRCUIT COURT OF ARLINGTON COUNTY

MARY-ELLEN CANDAGE, et al.

Petitioners,

v. Chancery No. 96-737

ARLINGTON COUNTY, et al.

Defendants.

VANGUARD SERVICES UNLIMITED,

Cross-Complainant,

v. MARY-ELLEN CANDAGE, et al.,

Cross-Defendants.

CROSS-BILL OF COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

COMES NOW Vanguard Services Unlimited, a Virginia non- stock corporation, by counsel, and for its Cross-bill of Complaint for declaratory judgment against Mary-Ellen Candage, Brian Golden, Ken and Wyvonna Hill, Steve Jobson- Oliver and Lina Shoobridge, Richard Knopman and Jennifer Tallarico, Pascal and Beth Lienard, William and Francoise Mengebier, Paul and Leslie Olkhovsky, and Jonas Robinson and Jane Shea states as follows:

COUNT I

(Compliance With Zoning Ordinance)

1. Vanguard Services Unlimited (Vanguard), is the contract purchaser of the premises located at 4317 South Sixth Street in Arlington, Virginia (Property).

2. The cross-defendants are the following persons who claim they are the owners and residents of the addresses listed below (all of which are located in Arlington, Virginia):

Mary-Ellen Candage, 4316 South 6th Street; Brian Golden, 412 South Taylor Street; Ken and Wyvonna Hill, 618 South Stafford Street; Steve Jobson-Oliver and Lina Shoobridge, 4407 South 6th Street; Richard Knopman and Jennifer Tallarico, 4406 South 4th Street; Beth and Pascal Lienard, 4313 South 6th Street; William and Francoise Mengebier, 4400 South 6th Street Paul and Leslie Olkhovsky, 4418 South 4th Street; Jonas Robinson and Jane Shea, 4308 South 6th Street

3. Vanguard applied for a use permit for the Property for a dormitory pursuant to the Arlington County Zoning Ordinance. Vanguard proposed to relocate an existing facility (Demeter House) for mothers and their-children at the Property. A supervised substance rehabilitation program for the mothers who are no longer engaged in substance abuse will be conducted on the Property.

4. Vanguard's use permit application sought approval for 22 mothers and children, and the Arlington County Board, the body that has the duty to pass on use permit application, on October 5, 1996, approved the use permit limited to 18 mothers and children and conditioned the approval on numerous conditions, a copy of which is attached hereto as Exhibit A.

5. The cross-defendants assert that they will be aggrieved as a result of the use pursuant to the use permit and that the approval of the use permit was invalid, because it is not consistent with the provisions of the County Zoning Ordinance for the approval of use permits (Sec. 36 G). The Cross- defendants have filed a legal challenge to the approval of the use permit.

6. The Property consists of a lot of 16,514 square feet located in an area zoned to the R-6 Zoning category. The R-6 zoning category permits lots of 6,000 square feet. The Property is improved with a house of approximately 6,000 square feet, located in three stories. The house on the Property was constructed pursuant to by-right zoning regulations, and all improvements to the house that will be made are also permitted pursuant to by-right regulations.

7. The by-right zoning regulations applicable to the Property permit single-family residence to be occupied by an unlimited number of persons related by blood, marriage or adoption, and the improvements could be occupied by at least 22 persons so related without the need for obtaining a use permit or without being subject to conditions that were imposed on the use permit for Vanguard.

8. The existing Demeter House has been located for several years in a similar single-family neighborhood on South Monroe Street in two houses separated by an alley. This arrangement has required residents and staff to regularly walk across the alley when necessary to be in the other house for some purpose. The existing facility has not adversely affected the health and safety of persons residing or working in the neighborhood of the proposed use, nor has it been detrimental to the public welfare or injurious to property improvements in the neighborhood. In fact, two new houses were constructed in 1996 adjacent to the existing facility, and these houses sold for well in excess of $200,000.00 each.

9. The existing facility has been well accepted by persons residing in the area, and it has been subject to use permit conditions similar to those attached to the use permit for the Property.

10. The conditions attached to the approval of the use permit for the Property will insure that the activity approved by the use permit will not adversely affect the health or safety of persons residing or working in the neighborhood or be detrimental to the public welfare or injurious to property improvements in the neighborhood, and the approved use will not be in conflict with the purposes of the County's master plan.

11. The operation of Demeter House on the property will not adversely impact the area as a result of traffic or noise, nor will it have any other adverse impacts on the area or residents.

12. There are a substantial number of groups homes for similar uses in similar neighborhoods in Arlington County and there have been for several years. The consistent experience with these other group homes has demonstrated that they do not have an adverse affect on health and safety of the community, nor are they a detriment to the public welfare or injurious to property or improvements in the neighborhood. These other group homes have not been in conflict with the purposes of the master plan applicable to the areas in which the group homes are located.

13. The approval of the use permit for the Property was consistent with Section 36 G. of the County Zoning Ordinance and all other applicable provisions of law.

14. Vanguard requires a prompt determination that the approval of the use permit is valid before it goes to settlement on the purchase of 4317 South Sixth Street, Arlington, Virginia.

15. There is an actual controversy between the Cross- complainant and the Cross-Defendants, and the Cross- Complainant has no other adequate remedy.

COUNT II (Compliance with Federal Fair Housing Act)

16. Paragraphs 1 through 15 are incorporated herein by reference.

17. The purpose of the Demeter House is to conduct a supervised substance rehabilitation program for mothers who are no longer engaged in substance abuse and their children. In order to conduct an appropriate supervised substance rehabilitation program, it is necessary to be able to operate in the manner approved by the use permit.

18. It is necessary to relocate Demeter House due to, among other reasons, the cost of maintaining the existing facilities on South Monroe Street and the need to have a facility that can be operated more efficiently by consolidation in one structure with more space for normal activities.

19. The Arlington County Board in considering the application for the use permit for the Property was required by the Federal Fair Housing Act (42 U.S.C. 3601 et seq.) to make reasonable accommodations for the residents of and program conducted at Demeter House.

20. The approved use permit as conditioned by the Arlington County Board constitutes a reasonable accommodation. WHEREFORE, Vanguard Services Unlimited, prays that the Court declare that the approval of the use permit is valid, and enjoin the Cross-defendants from interfering with the use permitted by the use permits.

VANGUARD SERVICES UNLIMITED

By Counsel WALSH, COLUCCI, STACKHOUSE,

EMRICH & LUBELEY, P.C.

2200 Clarendon Blvd., Suite 1300

Arlington, VA 22201

(703)528-4700

By: Jerry K. Emrich, Virginia State Bar No. 4732



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