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Letter to the Editor: Governing Behind Closed Doors

To the Editor:

On March 16, the Alexandria City Council passed controversial and sweeping planning changes that are already the subject of litigation. The city passed these changes to transform an honest policy disagreement into Through the Looking Glass litigation tactics, where nothing is as it appears to be. There are two cases in court.

The first, city-initiated litigation attacks a Board of Zoning Appeals (BZA) decision finding that citizens have a right to petition their government in accordance with state law (the BZA is a creature of state law, not the city) and zoning ordinance. The second, citizen-initiated litigation, which is before the Supreme Court of Virginia, is whether the city can manipulate the process to deprive its citizens of due process of law. The city repeated its manipulation of the process in March, which likely will lead to more litigation. Yet City Council passed both new changes after only three weeks of total process, and there was scant discussion of the implications of these changes. It was so scant there was no discussion.

As background, the decision to initiate the changes was made in an executive session of council, in apparent violation of transparency laws. Citizens, of course, have no idea who was present, what was said or by whom, or who voted for what. What we do know is that the city held a press conference a few days later announcing that it had decided in closed session to enact these changes to “get beyond the litigation.”

Not much was spoken about whether either text amendment was a good idea. Indeed, the city blocked release of the text amendments until 10 days before the Planning Commission hearing. It is a common and sound litigation strategy to withhold information until required to reveal it. As public policy, withholding information relevant to a public matter is atrocious government (and gives the lie to the What’s Next effort). Obviously, the city recognized a conflict between governing and litigating, and chose litigating as the priority.

Although the March 5 Planning Commission hearing and March 16 council hearing were entertaining as Kabuki theater, it was nothing more. Multiple witnesses testified against the changes and some testified for it. Yet no one on the Planning Commission or council could discuss the real reason the changes were introduced in the first place: to advance the litigation interests.

One of the changes curtails the due process rights of property owners to petition its government. The Planning Commission (like the BZA last year) raised many questions about the implications of this reform, none of which were answered at council. So now they want a working group to figure out what the new provision means? Why would council pass changes that it does not understand? The city attorney implied the changes are necessary to improve the city’s posture in court. Little was said about the underlying meaning. In English, the city railroaded through changes it does not understand because litigators told them to. Why? The city of course could not discuss or disclose the rationale behind adoption of public policy (on the advice of counsel?) because that would apparently betray litigation strategy. So they remained silent during testimony and enacted sweeping changes with little discussion or understanding.

It is unfortunate that we are now in a place where decisions are not made in public for policy reasons but made behind closed doors, cloaked in secrecy, for the purpose of advancing narrow litigation interests.

It may work; it may not; it may trigger more litigation. The Supreme Court of Virginia and the Circuit Court will tell us soon enough. But we should not be under any illusion that the March 16 changes were done for any other reason than positioning the city and certain developers in court. Having passed the law, we will have to wait to find out what’s in it. In other words, government of the litigators, by the litigators, and for the litigators.

Frank Putzu

Alexandria