Post #353: Sunrise lawsuit, the Town of Vienna responds

Posted on August 19, 2019

Courtesy of Dave Patariu and Shelley Ebert, I have a copy of the Town of Vienna’s response to the Sunrise lawsuit (Post #342).  You can access a copy of the Sunrise legal complaint at this Google Drive link.  You can access a copy of the Town’s response at this Google Drive link(LINK FIXED 8:30 AM 8/19/2019 — sorry for the mixup.)

To sum it up, the Town’s response isn’t to deny what was said and done.  Nothing that straightforward.   Instead, the Town asked for two things.  First, they asked that Sunrise be required to provide a copy of every relevant document, recording, staff memo, staff notes, filing, working document, etc. etc. etc.   Second, the Town asked the court to dismiss the complaint because the Town contends that Sunrise has no legal case at all.

To the non-lawyer, there’s a certain Alice-in-Wonderland quality to parts of the Town’s response.  And, to be clear, I had to have parts of this explained to me, fairly slowly.  And so, one major caveat:  what you’re looking at in the rest of this posting is a non-lawyer’s take on what the Town just asked for.

CRAVING OYER.  The first part of the Town’s filing is “Craving Oyer”.  They are asking that Sunrise be required to supply (many) supporting documents for their allegations.  This phrase is apparently a purely Virginia thing, and not found elsewhere.

E.g., in many places in its complaint, Sunrise quotes a Town Council member and gives the date of the meeting.  The Town does not confirm or deny what was said.  Instead, the Town is asking the court to require that Sunrise provide a copy of the relevant video or audio recording, the minutes from that meeting, any staff materials provided in that meeting, any other previously-undisclosed internal staff memos that were generated on that topic prior to that meeting, and so on.  And so on.  And so on.

Now, I find this request particularly humorous, because I actually track the availability of Town of Vienna recordings.  A year ago, you could download the recordings from the Town’s Granicus webpages.  Maybe half a year ago, the Town stopped making those available in that form.  (Coincidence or not, that was after I used public materials from Granicus to make a point that Town Council probably didn’t much like.)   Now, Granicus will only allow those audio/video records to be played, live, on the Granicus player.  You, the public, literally cannot obtain original copies of those recordings from any publicly-accessible source.  And so, neither can Sunrise — they’ll have to ask the Town to provide them.

(So how do I get my copies of Town meeting videos?  The only way I can get audio or video out of the Granicus system is to play the recording in a browser (only Chrome works, on my system), and use Movavi screen recorder to capture the audio and video to a file.  At that point, I have a copy of the Town’s original recording, but typically at lower resolution for both audio and video.  These days, you’d think that a link to the URL where the Town’s recording is available should satisfy the requirements just as well.  I mean, you can see and hear the meeting just as well on-line as you can by playing a file on your own computer.)

So that’s the first Alice-in-Wonderland aspect of this.  The Town is asking the Court to require Sunrise to ask the Town for recordings that only the Town has, and then provide them to the Town (and the Court), in order to verify that what Sunrise says was said, was said.  Before they’ll even consider discussing what was said.

Got it?

And then they piled on with a kitchen-sink request for every possible related document.  Many of which are not public.  For many of which, only the Town knows whether or not they exist (e.g., internal staff memos).

So the first part of the Town’s strategy is neither to confirm nor deny what was said, but appears to be mostly to bury the opposition in a burdensome (and potentially impossible) request for documentation.  For files that aren’t publicly available, for documents that you may or may not know exist, and so on.

Fully realizing that the law is about due process, not justice, that suggests to me that the Town has little interest in discussing the facts of what actually was said.  And so they’re just not going there.  Instead, their response is to ask the court to burden Sunrise as fully as possible with a documentation request.

I suppose that sort of thing works well against opponents with shallow pockets, due to the cost of providing all of that.  Against a major corporation, I’m not so sure.  But because the Town has sole possession of most of the requested materials, this allows the Town to drag its feet, make honest mistakes, lose documents, and otherwise harass Sunrise.  That may be the value the Town expects to get out of that portion of its filing.  It grabs control over the case.

Demurrer. The Town also asks for demurrer, which to my non-lawyer’s understand is not a motion to dismiss, but a statement that the opposition has no case at all.  The best definition I found was on Wikipedia:  “Lawyers informally define a demurrer as a defendant saying “So what?” to the pleading.”  In effect, they claim that Sunrise has no basis to sue for anything.

This again has that Alice-in-Wonderland feel to me.  Here’s an example.

No ability to question any “Fairly debatable” decision.  As I read it, in part, the argument is that because the Town Council voted it down 4-3, you have no right to question why they voted it down.  Because the fact that they voted it down 4-3 means that it was “fairly debatable”, and so cannot be questioned.  It was something that individuals could have different opinions about, and because of that, that decision cannot be questioned.

The reason I find that odd is that it’s self-referential.  It seems to imply that any decision, however arrived at, can’t be questioned if there was some split vote.  So if four Town Council members had literally said “We don’t want fill-in-the-blanks living here” — filling in that blank any way you care to choose — then as long as there was a split vote, that’s OK?

No need to show compliance with comprehensive plan.  Another oddity, to the non-legal reader, is that while the Town’s decision has to comply with the Town’s comprehensive plan, the Town doesn’t have to show or explain why it does or doesn’t comply.  Which, again, is one of those self-referential truth-by-assertion statements.  If the Town does it, then it’s assumed to comply, and they can’t be asked to show that it does, in fact, comply?

(Wouldn’t that have been great if that argument had worked when you were a kid?  “What do you mean, did I clean my room?  Keeping my room clean is part of our agreement, ergo, you have no right to ask me to open the door and prove it.”)

Fair housing law does not apply.  Yet another contention is that the Virginia Fair Housing Law simply does not apply.  The reasoning appears to be that it only applies to “aggrieved persons”, and Sunrise is not “an aggrieved person.”  So while it would be blatantly illegal to deny an old person the right to rent an apartment due to his or her age, the contention is that it’s perfectly legal to use zoning to bar the construction of elderly housing within some part of the Town.

Now that I actually bother to read the law, on the face of it, I don’t think that argument holds water.  You decide. Here’s a link to the actual law.  Here’s the definition:

"Aggrieved person" means any person who (i) claims to have been injured by a discriminatory housing practice or (ii) believes that such person will be injured by a discriminatory housing practice that is about to occur.

If I were Sunrise, I’d say that elderly individuals in this area are about to lose the opportunity to live in the Vienna downtown, solely because they are old.  In that case, Sunrise is the aggrieved person (clause ii) because they believe that harm is about to occur to old people.  (I should say, as I understand it, generically, corporations are persons under the law.  So my naive assumption is that the term “person” above literally includes an entity like Sunrise.)

That said, for me, it’s hard to read the Virginia law as being directly applicable to zoning decisions.  Certainly, there’s no explicit mention that I can spot.  So if it’s covered, it’s covered by inference.  It only talks about (e.g.) bringing up potential violations of the law to a board to be adjudicated.

By contrast, zoning issues are definitely covered by the Federal fair housing act.  And while the Federal fair housing act does not include the elderly as a protected class, it does include the disabled, which presumably covers the overwhelming majority of assisted living occupants.  So I’d say Federal law covers this one.  But if Sunrise wants to sue based on Federal law, they’ll have to go to a different court, I think.

So this may or may not be one of those legal “gotchas”.  Federal law definitely applies to zoning decisions, but does not explicitly cover the elderly per so, and would require going to a different court (I think).  Virginia law covers the elderly, but it’s hard to get any explicit reference to zoning decisions out of the plain text of the law.


No clue.  I’m not a lawyer, so I really couldn’t say if the Town is going to get a judge to dismiss this (demurrer) or not.

I will say that if this is just dismissed out-of-hand, for the reasons stated in the Town’s response, then it looks like the Town is free to make any zoning decision it wants to, for any reason.  I.e., it can’t be asked to show that a zoning decision complies with the master plan.  It can’t be questioned, at all, about the reason for any zoning decision as long as there was a split vote.  And so on.  So if this is dismissed, it looks like the Town can do … pretty much anything it wants.

Which may or may not, in fact, be how Commonwealth law reads in this case.  Seems unreasonable to me, but I have no real idea.  Maybe towns in Virginia do have the right to do anything they please with the zoning decisions, for whatever reason, and cannot be questioned except possibly on a purely factual basis.  Somehow, based on Virginia’s history of racial segregation alone, that sort of license does not quite ring true to me.   But I don’t know.

As to whether the Virginia Fair Housing Law applies or not, again, you’d have to get a lawyer to give you a guess.  It sure seems to me that Sunrise meets the “aggrieved person” definition (ii), but while Federal law definitely applies to zoning decisions, the Virginia law does not explicitly mention that.

To me, the Town’s kitchen-sink request for documents (craving oyer) seems excessive.  But, again, it’s the law.  It’s not about what’s reasonable, it’s about what wins.  So if the Town can force Sunrise to produce every document in that request, I guess the burden of that counts as a win.

All we can do is wait to see what happens next.  I hope to bring that to you as this progresses.