Post #342: The Sunrise lawsuit: $30M and counting.

Posted on August 9, 2019

First, a tip of the hat to Dave Patariu, a lawyer here in Vienna who obtained a copy of the Sunrise legal complaint from the Fairfax County Circuit Court and shared that with me.  If you want your own copy (.pdf), you may download it at this Google Drive link.

Next  — and don’t get me wrong here, my tax dollars will end up paying for this just as much as yours will — this is not a surprise.   It seemed like the logical thing for Sunrise to do, as I noted in Post #321.

OK, now for a summary of the complaint.  Here’s where it starts to get weird.

The complaint

Primarily, Sunrise is claiming age discrimination, in particular, discrimination that is illegal under the Virginia Fair Housing Law.   The claim is that the Vienna Town Council, based on their words and actions, turned down Sunrise mainly because they didn’t want old people at that location.  The Town Council apparently didn’t think an old folks’ home fit into their “vibrant” and “pedestrian” MAC streetscape.  Not at that location, at the very center of Vienna.

This was all news to me.  I did not realize that discriminatory zoning is an explicit consideration under the Fair Housing Law.  I have since looked it up, and yep, that was explicitly considered when the Federal fair housing law was passed.  I also did not realize that assisted living facilities were covered by the Fair Housing Law.  I looked that up, and they are.  I’m not a lawyer, but to me, that appears to say that you really can sue for discriminatory zoning against an assisted living facility, under the Fair Housing Law.

Further, they claim that the Town’s nominal reason for denying this — parking  — was an “arbitrary and capricious” decision because it was not based on any objective facts or standards.  And for that part, I have to say, yeah, that’s pretty much the way I saw it ( Post #321.)  By the end of the day, Sunrise exceeded any standard by any local jurisdiction.  The Town of Vienna was just kind of making it up as they went along, and nothing that Sunrise could do would satisfy Town Council in this regard.

As an aside:  To me, one significant part of the complaint is that they note that Town Council ignored Town staff’s advice.  Apparently, that’s part of the “arbitrary and capricious” complaint.   Town staff supported the approval of the Sunrise proposal.  But Town Council turned it down anyway.  And the fact that this matters definitely opened up my eyes, because it means that Town staff hold considerable power, and that Town Council disagrees with Town staff at their peril.

Also not boding well, Sunrise mentioned that every other MAC project had been approved, except for theirs.  (Not technically true, I think, as it took two tries to get Marco Polo approved, but the gist of that is right).  You’ve got an oddball carwash/fast-food place dumping traffic into one of the busiest intersections in Vienna (Chick-fil-A-car-wash).  You’ve got a building bigger than a football field, at that same intersection, drawing outstanding opposition from the citizens (444 Maple West).  You’ve got 48 luxury town homes, where the building passed by the BAR was not even remotely the same as the building passed by Town Council (Marco Polo).  You’ve got 37 lux condos that were praised by Town Council, in part, for providing a much-needed single-floor living opportunity for Vienna’s ageing population. (!!!, 380 Maple West).  All of that is A-OK.  And then, there’s Sunrise, which somehow couldn’t make the cut, in that company.(?)

But, mainly, the complaint is that Sunrise was denied because, in effect, Town Council didn’t want an old folks’ home there.  That’s not legal, under the Fair Housing Act.  And Sunrise provided a number of direct quotes, from Town Council members, that, taken at face value, more-or-less indicate that.

What does Sunrise want?

First, they want the court to find that Vienna’s denial of their application was illegal.  And they they want the court to state that the application is reasonable, that Vienna must reconsider it.  And they want the court to “retain jurisdiction” so that, in some many words, Vienna doesn’t find some technicality for denying this again.

Oh, and they want $30M plus all legal and court costs, as compensation for Vienna violating the Virginia Fair Housing Law.    As a lay person, it’s hard for me to tell whether they are kidding about that or not.  Is that just to make sure they got the Town’s attention, or do they really think the Town ought to be slapped with a $30M penalty over this.

Just back-of-the-envelope, I would guess that $30M is about on a par with the net present value of the profits Sunrise would expect to earn over the lifetime of that Maple Avenue facility.  And so while that seems like a large number, this is, after all, U.S. health care.  And in that context, maybe $30M is not so outrageous after all.

Looks like they also want a jury trial over this, if it comes to that.

All I can say is, that $30M sure got my attention.  That amount is on a par with the Town’s annual operating budget.  It would amount to about $2,000 for every man, woman, and child in Vienna.

In general, the value of the penalty is in keeping with the apparent quality of the complaint.  Unlike many legal documents, this one tells a pretty clear story.  It appears to be well-written, it has some clear basis in fact, it has some clear links to the law.  And I expect that the toxic combination of large damages, and the claim of age discrimination, will get Vienna the type of attention that no small town wants to have.


I’ve spent an awful lot of time in Town meetings this past year.  I have now gone back over some of the direct quotes in the complaint, and my take is, I believe Sunrise took many of those quotes out of context.  They seem damning, as presented by Sunrise, but really were not so, if taken in the context of the discussion leading up to them.   Fundamentally, I think out Town Council members were not quoted in a fair manner.  In particular, some quotes from Councilman Noble were, to my recollection, made in the context of a discussion of pedestrian safety issues, not in the context of denying elderly people the right to live in Vienna.  (He is, after all, a transportation engineer.)  I believe that a similar quote from Councilman Springsteen — a guy who has served many years with the Vienna VFD — was also in the context of pedestrian safety, not in the context of having a “vibrant” Maple Avenue.

I can’t say that the Town can defend each and every thing that it did.  I certainly thought that the decision was pretty screwball, at that time, and I’ve said so publicly here.  So, a goofy decision, for sure, as far as I could tell.  But slamming individual Town Council members as being anti-elderly, based on out-of-context quotes — I don’t find that to be an accurate reflection of reality.  At least, not in most of the cases that I looked at.

Next, we can always think of ways in which the Town could make this worse.  E.g., if they deny Sunrise in an “arbitrary and capricious” fashion, and then let one of the favored local developers pick up that property — that would make them look guilty as sin.  Make it look like the “arbitrary and capricious” decision was made with the intention of favoring some other developer.  Whether it was or not.  So let’s hope that’s not part of the trajectory forward.

Finally, I still can’t figure out why Sunrise wants to build on this lot anyway, other than for the ability to have a building on Maple Avenue, passed by 33,000 cars a day.  This is a difficult lot to build on, given the various storm and sanitary sewers that pass under it.  And it would be a very tight fit for Sunrise in any case, with the highest number of beds per acre (Post #279) of any Northern Virginia Sunrise facility.  But want it they do, and they appear to be quite serious about suing the Town for the right to build there.