The Arlington County Board has unanimously voted to appeal a judge’s ruling on Missing Middle zoning changes.
The county’s lawyers had previously said they planned to contest the circuit court decision, which prevents the county from issuing any more permits under the much-debated Expanded Housing Option. However, the Arlington County Board had not held a public vote on an appeal until yesterday (Tuesday).
“The Board considered adopting a revised ordinance, but determined that it is not feasible to do so based on the legal construction and substance of the judge’s ruling,” Chair Libby Garvey said. “We and many jurisdictions across Virginia are concerned that this ruling will have impacts that extend well beyond our EHO policy, impacting our current decades-long understanding of how land use decisions are made and implemented under local jurisdiction.”
No members of the public spoke prior to the vote, which Garvey introduced as the final order of business at an evening meeting. The item was not listed on the meeting’s agenda.
A county webpage with extensive documents related to the lawsuit — including trial transcripts, evidence presented to Judge David Schell and an FAQ — went live this morning.
Questions for a higher court
Schell’s final order on the lawsuit rules against the county on four counts.
It finds that the County Board failed to adequately consider localized impacts of its decision, unlawfully delegated authority to issue permits to county staff, violated state tree canopy requirements, and failed to follow proper procedure in initiating the approval process for the EHO ordinance.
This last finding has proved particularly troublesome for the county. In the final order, Schell wrote that Virginia law required the county to file a “resolution to amend” before filing a “resolution to advertise” the ordinance.
“The use of the term ‘initiate’ [in Virginia law] mandates that the resolution to amend must be the first step in the process and not a middle or ending step,” he wrote. “A resolution to advertise is a separate later step in the process. A two-step process is required, first a resolution to amend and then a resolution to advertise.”
Both Schell and the county have said that this finding, while technical in nature, could have broad implications.
On Oct. 1, less than a week after the circuit court ruling, the County Board held a special meeting concerning 10 active “request to advertise” resolutions on zoning and land use items. All of the resolutions contained language indicating that the Board would “consider” adopting the resolutions.
The Board re-adopted the resolutions, swapping out the word “consider” for the phrase “resolves and intends to adopt.”
The intention of this decision, according to a county staff report, was “to comply with the ruling and allow County business to continue as scheduled.
Schell noted in his ruling, however, that a simple fix for this issue may not be possible.
“The County Board argues including both resolutions in the resolution to advertise is the way that it has been done in the past in both Arlington and Fairfax without difficulty,” he wrote. “That may be true, but no court has sanctioned or reviewed that practice. The court is unable to ignore carefully crafted statutory language.”
Garvey argued that the county has an imperative to appeal a finding with such undefined and potentially extensive implications.
“These concerns must be addressed and clarified by a higher court,” she said. “We believe that the county has fully complied with Virginia law and has good grounds for an appeal.”
Next steps
In court last month, county counsel estimated that it will be at least a year before this case goes to the Virginia Court of Appeals.
In the meantime, Schell has authorized in-progress EHO projects to continue. However, developers for these projects must place a notice in land records indicating that future landholders are making a gamble.
Depending on how ongoing litigation plays out, Schell noted last month, there is a chance that future occupants of these properties might have to move, and future property owners might have to change the nature of the buildings.
“You’re taking a huge risk, in my humble judgment, if you’re building a six-plex or a four-plex while the case is pending in the court of appeals,” the judge opined.
A complete statement from the County Board about its appeal — posted on the new county page for the EHO trial — is below.
Since late September, the Board has deliberated on the ruling in the Expanded Housing Option Development trial (Nordgren v. Arlington County Board). We have heard from residents, reviewed the final order, and consulted with both the County Attorney and outside legal counsel.
The Board has directed the County Attorney to appeal the ruling. The Board considered adopting a revised ordinance but determined that it is not feasible to do so based on the legal construction and substance of the judge’s ruling. We, and many jurisdictions across Virginia, are concerned that this ruling will have impacts that extend well beyond our EHO policy, impacting our current, decades-long understanding of how land use decisions are made and implemented under local jurisdiction. These concerns must be addressed and clarified by a higher court.
We believe that the County has fully complied with Virginia law and has good grounds for appeal. While we await the appeal, staff will adhere to the ruling as it stands. The County will also continue its work to address housing needs across our community.
