lawsuit

BREAKING NEWS — Judge Dismisses Dog Mural Lawsuit

By ARLnow.com

(Updated at 4:40 p.m.) The lawsuit over the legality of a dog mural has been dismissed by a federal judge.

Kim Houghton, the owner of Wag More Dogs (2606 S. Oxford Street), sued Arlington County after zoning officials declared her store’s mural of dogs, bones and paw prints — which faces the Shirlington dog park — to be a form of commercial speech and in violation of the county’s sign ordinance. U.S. District Court Judge Leonie Brinkema dismissed the lawsuit today “with prejudice.”

Undeterred, Houghton vowed to keep fighting.

“We’re going to appeal,” she said when reached by phone at her store this afternoon. “I am disappointed, but it’s not over yet.”

In the suit, Houghton said her mural was a piece of art that was beautifying the park. She objected to the county’s suggestion that the mural could be preserved if she added the words “Welcome to Shirlington Park’s Community Canine Area.”

“I think that once against the county is just seeking to take my mural and make it into an informational sign for themselves,” she said this afternoon. “I’m hopeful that we’ll win on appeal… let the games begin, let’s see what happens.”

More from the county press release:

ARLINGTON, Va. – United States District Court Judge Leonie M. Brinkema, for Virginia’s Eastern District, today dismissed with prejudice the lawsuit brought by Wag More Dogs, an Arlington dog day care and pet grooming business, and its owner, challenging Arlington County’s sign ordinance.

“We are pleased that the judge agreed with Arlington that this issue was about advertising, and that she found the County’s sign ordinance to be fair and reasonable,” said Asst. County Attorney Carol McCoskrie.

Wag More Dogs owner Kim Houghton had filed suit against the County late last year, alleging that it had violated her First Amendment right of free speech in finding that a mural she had commissioned for an outside wall of her business violated Arlington’s sign ordinance.

Houghton had sought an injunction against the County, seeking to have the Court order the County to let Houghton remove a tarp the County had required she place over the mural.

The County argued that Houghton’s case had no merit because the County has the authority to regulate commercial signs and that Houghton had not proven that the sign ordinance discriminates based on content.

In issuing her ruling, Judge Brinkema said that the mural is a “classic form of branding and advertising,” and meets the definition of a sign. The judge found that the County’s sign ordinance is a valid, content-neutral restriction on the size of signs in the M-1 zoning district, even noting that by saying the ordinance was content-based, Wag More Dogs was “barking up the wrong tree.”

Judge Brinkema said that “even taking all of the facts alleged by plaintiff as true, plaintiff’s Complaint states no plausible First Amendment violation under governing precedent.” She dismissed the case “with prejudice,” meaning that the owner of Wag More Dogs will need to appeal the ruling if she wishes to further pursue its claim.

Arlington Will Withdraw HOT Lanes Suit

By ARLnow.com

Arlington County announced tonight that it will be withdrawing its controversial lawsuit against the proposed High Occupancy Toll lane project on I-395. VDOT revealed last week that it’s no longer pursuing HOT lanes on the Arlington and Alexandria portions of I-395, at least partially due to Arlington’s suit.

The county issued the following press release about its decision to halt legal action against the HOT lanes plan.

The Arlington County Board today announced that it will withdraw its lawsuit on the proposed I-95/395 High-Occupancy Toll (HOT) lanes project. The County Board has directed the County Attorney to seek a suspension of court proceedings so that necessary filings to dismiss the case can be prepared.

“With the announcement last week by Secretary Connaughton, it is clear that the County’s objectives have been achieved and the lawsuit can be terminated,” said Arlington County Board Chairman Christopher Zimmerman.

On February 3, the state proposed a new I-95 HOT lanes project that will undergo required environmental review, and will preserve I-395 as a transit and HOV corridor.  “Arlington County filed suit because we saw the potential for irreparable harm to residents of Arlington and others throughout Northern Virginia, and because the issuance of a ‘Categorical Exclusion’ by the Federal Highway Administration left us with no alternative but filing suit,” commented Zimmerman.

The new I-95 project effectively nullifies the Categorical Exclusion that was the basis for the County’s legal challenge. The Commonwealth has stated that it will conduct a thorough Environmental Assessment (EA) of impacts to the environment, public health, and transportation, as required by the National Environmental Policy Act (NEPA). Such an assessment will provide to the I-95 project the level of analysis that Arlington sought for the I-95/395 project, and will allow for greater opportunities for public participation.

In addition, the specific aspects of the initially proposed project that would have adversely impacted transportation in Arlington directly – notably in the Pentagon-Pentagon City-Crystal City area, and at Shirlington – have been eliminated from the new project.

Critical transportation corridor

Arlington continues to work with our regional counterparts to improve transportation options throughout region.  Mobility in Northern Virginia is vitally dependent on the existing HOV lanes, which currently moves far more people per lane-hour than any other roadway in the region.  It is important that the new I-95 HOT lanes project be carefully designed to ensure that there is no degradation of transit capacity in the corridor.

“We applaud the Commonwealth for agreeing to do an Environmental Assessment on the new project, said Chairman Zimmerman  “It is crucial that the impacts of the implementation details of this new I-95 project be carefully evaluated and appropriately mitigated before turning the facility over to a private company for decades. ”

TV Discussion of HOT Lanes Gets Heated

By ARLnow.com

In case you missed it from Friday (we did), County Board Chairman Chris Zimmerman was a guest on TBD’s NewsTalk with Bruce DePuyt program.

The topic of conversation was the failed plan to build HOT lanes on I-395, and Arlington’s lawsuit against the plan. Joining Zimmerman were two big critics of Arlington’s lawsuit: Bob Chase of the Northern Virginia Transportation Alliance and Fairfax County Supervisor Pat Herrity.

Chase and Herrity took turns bashing Arlington’s HOT lanes lawsuit. At one point, Herrity mocked what he described as “claims of racism from probably one of the whitest and richest counties in the area.”

(Zimmerman disputed that the lawsuit claimed racism — instead, he said the case focused on “environmental justice” provisions in the law.)

Things got a bit heated about six minutes into the video above, when Zimmerman and Chase started arguing about details of the suit.

“Bob, Bob, you’re just not telling the truth now… now you’re just making stuff up,” an exasperated Zimmerman said to address one of Chase’s allegations.

“You didn’t see anybody rushing to trial with this thing,” Zimmerman concluded. “We think we had a pretty strong case, I suspect the other side thinks we had a pretty strong case.”

TBD has more about the discussion here.

Local Officials Celebrate HOT Lanes Decision

By ARLnow.com

Arlington County officials and local lawmakers are celebrating VDOT’s decision to scrap its plan to build High Occupancy Toll lanes on the Arlington and Alexandria portion of I-395.

Here’s the county’s official press release:

ARLINGTON, Va. – Arlington County Board Chairman Christopher Zimmerman today welcomed VDOT”s announcement that it is pursuing a new, more limited High Occupancy Toll (HOT) Lanes project on I-95 that will undergo an in-depth environmental analysis.

“The state is now doing, for this new project, what Arlington asked it to do for the I-95/395 project,” said Arlington County Board Chairman Christopher Zimmerman. “The County’s goals have always been to protect transit and High Occupancy Vehicle (HOV) travel in the corridor and to preserve Arlington neighborhoods.”

VDOT’s new project appears to preserve I-395 as an HOV/transit corridor. Questions remain, however, about the impacts of this new project on transit and HOV south of the Beltway. The County trusts that the environmental assessment to which VDOT is now committed to performing will address those concerns.

Arlington is also pleased to see that the state is addressing transportation problems at the Mark Center in Alexandria and the Engineering Proving Grounds in Fairfax County arising from BRAC decisions. These issues were not addressed in VDOT’s original HOT Lanes project. Arlington welcomes the opportunity to examine the HOV/transit connection to the Mark Center that VDOT now says it will construct in addition to the redesigned HOT Lanes project.

Arlington is still reviewing VDOT’s new project and assessing its impact on Arlington’s litigation against the state and federal governments. A key question for Arlington is the status of the Categorical Exclusion granted by the federal government for the original project. In light of VDOT’s decision to proceed with an Environmental Assessment of the new project, it would appear to be appropriate for the Categorical Exclusion to be rescinded by the federal government, or withdrawn by VDOT. Resolution of this issue remains a key factor in Arlington’s decision-making on the litigation.

Arlington remains committed to doing what it has always done – working to protect transit, ensure the ability to efficiently move people and safeguard Arlington neighborhoods. Arlington will continue to work together with neighboring jurisdictions and the state to address the urgent transportation needs of Northern Virginia.

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County Emerges Victorious As State Gives Up HOT Lanes Plan

By ARLnow.com

(Updated at 10:35 a.m.) Arlington County has emerged victorious from its $1.5 million legal battle with the state over the plan to build High Occupancy Toll lanes on I-395.

Virginia Transportation Secretary Sean Connaughton announced today that the state is no longer pursuing its I-395 HOT lanes plan, which the county blocked by filing suit in 2009. VDOT is also canceling plans to upgrade the Shirlington and Eads Street interchanges.

Just hours before the project’s demise was first revealed by the Washington Post, County Board Chairman Chris Zimmerman sent a five-page letter to two top Virginia lawmakers further explaining Arlington’s effort to block the HOT lanes project.

Zimmerman questioned the wisdom of handing the state’s existing HOV lanes over to a foreign company for decades while getting what he described as relatively little in return. Zimmerman argued that the I-395 HOT lanes plan was poorly-designed, could exacerbate traffic congestion and could cause “great harm to the people that we and you represent in Northern Virginia.”

Addressing the lawsuit’s critics, Zimmerman wrote that “carrying on overheated diatribes through the news media is not conductive to conciliation.” He disputed the oft-repeated charge regarding the lawsuit’s insistence that minority populations would be adversely affected by HOT lanes, saying that “Arlington has never called anyone racist.”

Per the charge that Arlington was acting unscrupulously by suing two government officials in their personal capacity, Zimmerman noted that the officials “are of course provided legal representation through government general liability coverage.”

Even though Arlington’s HOT lanes fight is likely coming to a close, the lawsuit may continue to cost the county in the form of ill will in Richmond. As we previously reported, one Fairfax County lawmaker has effectively killed a bill that would renew Arlington’s hotel tax surcharge, which provides about $1 million per year for tourism promotion. Del. Tim Hugo (R) cited the costly HOT lanes suit as evidence that Arlington didn’t need the extra tax revenues.

Richmond Bites Back on HOT Lanes Suit By Blocking Tax Bill

By ARLnow.com

(Updated at 4:35 p.m.) Arlington’s legislative agenda is in danger as the county faces a backlash in Richmond over its controversial HOT lanes lawsuit.

The lawsuit, which has thus far cost the county about $1.5 million in legal fees, was filed in order to block VDOT’s plan to build High Occupancy Toll lanes on I-395. The suit has been ruffling feathers in Richmond ever since, but on Wednesday it came back to bite the county on a key legislative priority.

Del. Tim Hugo (R) of Fairfax County used his chairmanship of a House finance subcommittee to delay action on HB 1513, Del. Bob Brink’s bill that would extend Arlington’s 0.25 percent hotel tax surcharge for another three years.

The surcharge brings in between $800,000 and $1 million each year, which is then used as the county’s tourism promotion budget. But, in a bit of political theater, Hugo had a question waiting for Brink once he explained how much revenue the surcharge brings in.

Why, he asked, can’t the county use the money it has been spending on the lawsuit to promote tourism?

“If they’ve got so much money for silly, abusive, intimidating, frivolous lawsuits like this, then they obviously have plenty of cash in Arlington and don’t need this tax reauthorized,” Hugo said.

Hugo said he objected to the suit generally as a supporter of the HOT lanes project, but he objects specifically to the fact that the county is suing two officials — Federal Highway Administration Administrator Victor Mendez and former Virginia Transportation Secretary Pierce Homer — in their personal capacity, instead of in their professional capacity.

“It’s incredibly wrong… it’s abusive, it’s intimidation,” said Hugo, who noted that he’s “sticking up” for Homer, a Democrat.

Hugo said he “would like to hear from Arlington personally” about the suit. As for the bill, Hugo said he wanted to table it — essentially killing it — but instead decided to wait to see if he hears back from county officials.

The bill “may or may not come up in a week or two,” he said.

Arlington Chamber of Commerce President Rich Doud, who was at the subcommittee meeting to support the bill on behalf of Arlington’s hotels, said Hugo’s action was indicative of the difficult political climate for Democrat-heavy Arlington in Republican-dominated Richmond.

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Views at Clarendon Lawsuit Dismissed, Again

By ARLnow.com

A lawsuit to block an affordable housing deal between the state, the county, a developer and a Clarendon church has been dismissed by a federal appeals court.

In 2004, the county gave its blessing to a plan that would build an eight story affordable apartment complex, known as The Views at Clarendon, on top of the First Baptist Church of Clarendon. The plan was touted for its ability to increase the affordable housing stock in Clarendon while paying for the construction of a new church sanctuary.

The developer would buy property from the church, thus supporting the sanctuary construction, and then pay for the apartment building’s construction with the help of nearly $50 million in loans and tax breaks from the county, the state and the federal government.

After considerable neighborhood outrage and two legal challenges to the building’s imposing design failed to stop the development, Clarendon resident Peter Glassman filed suit in Nov. 2009, accusing Arlington County and the Virginia Housing Development Authority of violating the First Amendment separation of church and state by facilitating the development and providing subsidies to the church.

A U.S. District Court judge dismissed the case in April. Glassman appealed, and in the latest development, the appeal was rejected on Thursday.

In his decision, Fourth Circuit Court appeals judge Paul Niemeyer agreed with the lower court’s findings.

“We can find no factual allegations that support a claim that the County sought to advance the First Baptist Church’s faith, to spread the message of the First Baptist Church, or to become entangled in its religious affairs,” Niemeyer wrote. “Rather, the County’s only interest was to accomplish the secular end of having affordable housing constructed in a highly urban area of Arlington County.”

No word yet on whether any further legal action by Glassman may be forthcoming. Meanwhile, construction of The Views at Clarendon has been progressing steadily.

Update at 4:30 p.m. — The county has released a press release about the case. Here’s an excerpt, after the jump.

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Morning Notes

By ARLnow.com

Santa Visits Cherrydale — More than 300 children swarmed the Cherrydale Fire Station on Sunday afternoon, taking home free presents, stuffed stockings and fresh memories of Santa Claus. The children were beneficiaries of the 80th annual Christmas celebration sponsored by the Cherrydale Volunteer Fire Department. — Michael Doyle

End in Sight For HOT Lanes Suit? — After more than $1 million in legal costs, could the county’s lawsuit over HOT lanes on I-395 be nearing an end? Arlington “has had several positive negotiations that could lead to a settlement outside of court,” reports Ben Giles of the Washington Examiner, citing an interview with County Attorney Stephen MacIsaac.

Libraries Dominate County Manager Online Q&A — What’s on the mind of web-savvy Arlington residents these days? If Friday’s online community chat with County Manager Barbara Donnellan is any indication, they’re quite focused on libraries. Of the 14 questions asked during the question and answer session, six were about Arlington’s libraries. See a transcript here.

Score One for Cuccinelli’s Health Care Lawsuit

By ARLnow.com

Virginia Attorney General Ken Cuccinelli has scored a legal victory in his challenge to President Obama’s health care reform law.

Today, in response to Cuccinelli’s lawsuit, a federal judge ruled that a key provision in the health care law which requires individuals to obtain health insurance is unconstitutional. Obama administration lawyers are planning to appeal the ruling to the U.S. Supreme Court.

In a short Twitter message, Cuccinelli refrained from taking a long victory lap.

“[The health care] ruling is in. Virginia won this round,” he said succinctly.

The ruling will have little immediate effect in terms the law’s implementation. The White House says it expects the challenge to be resolved before most of the health care law’s key changes are implemented in 2014.

Update at 1:50 p.m. — Virginia Governor Bob McDonnell is scheduled to appear on Fox News between 4:00 and 5:00 p.m. to discuss the ruling. Read McDonnell’s statement on the court’s decision here.

Update at 2:05 p.m. — White House spokesperson Robert Gibbs responds to the ruling: “We are confident that the affordable care act will be upheld.”

County Prepares to Fight Sign Lawsuit

By ARLnow.com

Arlington County is preparing to fight a legal challenge to its commercial sign ordinance — the first such challenge since the creation of the ordinance.

County Attorney Stephen MacIsaac says the county has a number of arguments to counter the lawsuit’s claims. The suit argues that regulators are infringing on a small business owner’s free speech by deeming a large mural painted on the side of her building a commercial sign and not artwork.

“I think it should be fairly apparent under the sign ordinance that this is a sign,” MacIsaac said. The mural is “clearly an effort to promote this woman’s business… to depict it as public art, I think, is a bit of a stretch.”

MacIsaaac said that the county’s sign ordinance is consistent with ordinances currently in place in other jurisdictions.

“Our sign ordinance is not unusual in any way,” he said. Arlington’s political sign rules were challenged just over 10 years ago, according to MacIsaac, but this is the first time someone has mounted a formal legal challenge to the commercial sign ordinance.

MacIsaac, the county government’s top legal counsel, added that the his office hasn’t officially been served notice of the suit, which was filed in federal court on Thursday. He expects the litigation to take about a year, and expected the county’s first court appearance to happen at some point this winter, perhaps February.

“We’re sort of in a wait and see mode right now,” MacIsaac said. “Right now we’re just assessing the case and waiting for the timeline to be established. This is going to be a process.”

DEVELOPING: Doggie Daycare Bites County With Sign Lawsuit

By ARLnow.com

(Updated at 1:55 p.m.) Wag More Dogs, the doggie day care business that has been engaged in an ongoing dispute with the county over a large mural facing the Shirlington dog park, has filed a lawsuit against Arlington County and county zoning administrator Melinda Artman on the grounds that Arlington’s sign ordinance violates the First Amendment right to free speech.

Wag More Dogs owner Kim Houghton says she commissioned the $4,000 mural, which depicts dogs, bones and paw prints, to beautify the dog park, which her business abuts. But the county zoning office didn’t see the mural as art, it saw it as a 60 foot by 16 foot commercial sign — well beyond the 60 square feet of signage the store is allowed under the county sign ordinance. Had the mural depicted flowers or anything not dog-related, said county regulators, it would be permitted.

After a long back and forth, Houghton was finally allowed to open her business in September, on the condition that the mural remained completely covered with a tarp. In October, Houghton was told that the sign could be considered a mural if she paid for the words “Welcome to Shirlington Park’s Community Canine Area” to be painted in four-foot high letters.

Shortly after that, Houghton linked up with the Institute for Justice, a Ballston-based libertarian public interest law firm. This morning Houghton and her attorneys filed a lawsuit and asked for a preliminary injunction that would allow the mural to be displayed while the lawsuit makes its way through the courts.

“The decision to file the lawsuit was to protect my freedom of speech and to ultimately prevail in keeping the mural up as it is, instead of turning it into an informational sign for the county,” Houghton said after a press conference at her store this morning.

This morning’s legal filings cite dozens of prior cases, many of which upheld the right of business owners to display signs and artwork.

“What Arlington County is basically saying is that it is allowed to play art critic,” said Robert Frommer, the lead counsel for the Institute for Justice. “We’re very confident of our legal position, because we’re very confident in the First Amendment.”

But Artman, the county’s top zoning official, seemed unfazed.

“My reaction to being sued is that it’s all in a day’s work,” Artman said in a phone interview. “I’ve been sued before, and I’ll be sued again.”

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