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Forget the nitty-gritty

Michael Schwartz June 1, 2012 8

It’s the old sovereign immunity defense.

Virginia Commonwealth University says a $1 million lawsuit filed against it by a restaurant near campus should be tossed out because the school is considered a state agency and therefore can’t be held liable.

The argument is in response to a civil suit filed by Sahara, a restaurant and hookah bar at 813 W. Grace St., that claims a large VCU construction project has scared off customers and cost it thousands of dollars in lost business.

Invoking a plea of sovereign immunity, VCU claims that “as a state agency, [it] is absolutely immune from liability.”

Sahara first filed the suit in March, claiming construction of VCU’s so-called West Grace Housing Project, which consists of a dorm and parking garage, “totally engulfed and overshadowed [the restaurant’s] space.”

The restaurant is sandwiched between two VCU buildings that are each several stories tall. On one side is a finished 94,000-square-foot parking garage with a few ground-level restaurants on the corner of Grace and Laurel streets. On the other is a 162,000-square-foot mixed-used student housing project.

Sahara’s suit, which also names construction company Whiting-Turner Contracting as a defendant, is seeking $1.35 million in total damages.

The sovereign immunity defense protects the state against certain types of liability. Citing legal precedents that say VCU and other state schools are “governmental instrumentalities for the dissemination of education,” VCU argues that it is protected under that umbrella.

And because the construction project that Sahara has a beef with is designed to “assist students with housing,” the school argues it is part of the university’s mission and falls under the reach of sovereign immunity.

VCU spokesperson Anne Buckley said the school does not comment on pending litigation.

VCU is represented in the suit by the state attorney general’s office. Nicholas Simopoulos is working the case for the AG.

The AG’s office declined to comment or answer questions about the suit.

Meanwhile, contractor Whiting-Turner filed its response to the suit, also saying that Sahara’s case should be tossed.

The company filed a demurrer stating that the facts laid out in the case don’t support the legal arguments made by Sahara: “At best, [Sahara] sets out a case of activities in connection with a construction project that were inconvenient to the plaintiff’s business.”

Whiting-Turner is represented by J.H. Revere III, an attorney with Kalbaugh Pfund & Messersmith. Revere declined to comment.

VCU will make its argument for sovereign immunity in front of a judge in Richmond Circuit Court next month.

Whiting will also state its case for dismissal next month.

Sahara is represented by local attorney Darryl Parker. Parker did not return a call by press time.

Less than an acre in size, the Sahara property was most recently assessed at $835,000. The property is owned by a private party.

Sahara claims in its suit that VCU has an ulterior motive to drive the restaurant out of business and purchase the land.

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8 Comments »

  1. David June 1, 2012 at 7:03 am - Reply

    Complaining about adding more to your customer base? VCU should be asking for a commision.

  2. S Green June 1, 2012 at 8:17 am - Reply

    That was my thinking as well. Most restauranteurs would kill to have a captive audience like they now do, being the only restaurant sitting between these large residential buildings.

  3. Jay June 1, 2012 at 11:26 am - Reply

    S Green, only one of the new buildings is residential (the one to the immediate west of Sahara). The one east of it is a parking garage with 2 or 3 restaurants on the ground floor.

    There’s no lack of dining competition in the area. Directly across Grace street is a Chipotle and Panera. Not to mention the handful of restaurants one block west on Grace (Strange Matter, Ipanema, Panda Veg, Thai Top Ten, Saigon, etc), one block east (Evergreen Chinese, Sally Bell’s Kitchen) and the places one block north on Broad.

    Sahara has been losing it’s mojo/popularity for a while. It was fairly popular among the late night crowd when I was a freshman in 2007 but has really been going downhill since then.

    I’m sure VCU has offered them good money for the property. Should have took the money and never looked back.

    To me, this looks very similar to a case of a property owner in DC from a few years back. A developer offered the owner a nice bit of money (a couple million I believe) for his lot but the owner repeatedly refused, holding out for a bigger offer. Eventually the developer just built around the hold-out property and completely closed it in on 3 sides.

    See it here: http://www.virtualfunzone.com/slike/place/6-extraordinarily-stubborn-nail-houses/6-extraordinarily-stubborn-nail-houses14.jpg

    Last I heard the owner was struggling to sell it for a fraction of what he was offered.

  4. Ruben Foster June 1, 2012 at 2:07 pm - Reply

    I am not an attorney by any stretch of the imagination, but I bet VCU comes out on top here. I can’t see this guy getting $1 from this suit.

  5. Stuart Squier June 1, 2012 at 4:44 pm - Reply

    I can’t comment on the legal case, but the problem is that Sahara’s building is set back too far from the street. It’s only become apparent now that the big new VCU buildings are so much closer to the street after the longtime surrounding surface lots made it easy to see (it was the only building on that side of the block.) The building is in a B-4 business zoning district, which specifies a maximum 10 foot setback from the right of way. The Sahara building is set back approximately 55 feet from the right of way, much too far for the urban form of a central city block. For whatever reason there was a period of time where they let builders do that suburban typology of building in the area, like the Hardees at Broad and Shafer, and the Pizza Hut at Grace and Laurel. Now we can see that the programming in those types of buildings will fail in urban areas.

  6. Johnny Richmond June 3, 2012 at 9:03 am - Reply

    VCU says a $1 million lawsuit filed against it should be tossed out because the school is considered a “governmental instrumentality for the dissemination of education

    bwahaha haaahaha

    I call it a mega million dollar monstrosity that has engulfed most of the charming flavor and culture of the area it is overwhelming… while leaving pockets of decadence and criminality it doesnt want to deal with…
    The architecture is hideous as a whole.. and looks like a futuristic compound of sterility and android development…

  7. Brad June 4, 2012 at 6:17 am - Reply

    Johnny Richmond, I don’t remember the parking lots providing charming flavor and culture over the past decade. This development on Grace is creating density within the Monroe Park campus and potentially pulling students out of some nearby neighborhoods so hopefully the market will allow for single family conversions instead of lousy student triplexes.

  8. Johnny Richmond June 4, 2012 at 2:28 pm - Reply

    Ive seen how those fake brick monopoly hotels have “created density” north of Broad and wiped out single family… Oregon Hill and it’s character is also getting swallowed… as are the historic homes and buildings east of Belvidere… plain ugly and looks like a militant zone if you ask me

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