EHO Lawsuit Guide
This article presents an overview of the lawsuit filed in April 2023 by 11 Arlington homeowners against Arlington County. The lawsuit attempts to overturn the County’s 2023 approval of Expanded Housing Options (EHO) zoning ordinance amendments. One of ArlingtonWINs’ goals is to ensure that unbiased information on the lawsuit is more available to the general public. To that end, we are providing a factual timeline of each phase of the lawsuit from filing through the eventual conclusion.
Overview of Zoning Legislation and Litigation
Zoning legislation is established by each local jurisdiction -- one of the rare instances in Virginia where a jurisdiction, and not the state legislature, has significant control. Virginia’s state laws contain “enabling statutes” that empower each local jurisdiction to create their own zoning ordinance. Local ordinances must, of course, fit within the framework of these enabling statutes.
Zoning lawsuits filed by residents often allege a failure to comply with (i) a state statute, and/or (ii) prior case law (court opinions ruled upon by the Virginia Supreme Court).
The EHO Lawsuit
2023: April > May > June > July > August > September > October > November > December
2024: January > February > March > April > May > June > July
April 2023: The Lawsuit is Filed
April 21, 2023: the law firm of Blankingship & Keith filed with the Arlington Circuit Court a Complaint for Declaratory Judgment and Injunctive Relief, on behalf of 11 Arlington residents (the “Plaintiffs”), owning nine residential properties.
The named defendants were (i) the County Board of Arlington County, Virginia and (ii) the County Planning Commission.
Within the Complaint there are seven separate “Counts” (which can be characterized as 7 different arguments to nullify the zoning amendments).
Each Count contains a “request for relief”, asking the Court to rule that the zoning amendments are “void ab initio”. In the context of zoning litigation, such a request asks that the zoning amendments be deemed null and void from the moment they were created, as if they never existed in the eyes of the law.
The Seven Counts
The seven Counts filed by the Plaintiffs cover different issues, consisting of (i) allegations of facts that would need to be proven, and (ii) conclusions of law, as interpreted by the Plaintiffs and their counsel.
The Counts can be summarized as follows, generally all based on an alleged failure to comply with Virginia state law:
I. The Board failed to initiate a resolution to amend the zoning ordinance.
II. The Board failed to properly advertise the zoning amendment.
III. The Board failed to reasonably consider required factors.
IV. The Board unlawfully delegated legislative authority to staff members.
V. The Zoning Amendment is arbitrary and capricious.
VI. The Board failed to comply with state FOIA statutes.
VII. The tree requirement is contrary to state law.
May 2023: The County Responds to the Complaint
May 23: the County Board and the Planning Commission, through its County Attorney, filed a “Motion Craving Oyer, Demurrer and Plea in Bar”, asking the Court for dismissal of the lawsuit. The Motion Craving Oyer simply requests that referenced documents in the Complaint be deemed part of the record.
The Demurrer makes the following assertions:
The Plaintiffs lack standing to assert any of the claims (that is, they are not proper parties to a lawsuit challenging this specific zoning amendment)
The matter is not “ripe for action” (there is no current harm, and any allegation of harm is speculative)
The seven counts fail to “state a claim for which relief can be granted” (most typically, this means that a complaint failed to properly allege one or more of the required elements of an action.)
Six of the seven counts state no cause of action against the Planning Commission, and those counts should be dismissed as to the Planning Commission
The Plea in Bar requests dismissal of Counts I through III, and Counts V and VI, based on facts alleged in the Plea in Bar.
Plaintiffs filed a request for a hearing on Count VI. Arlington judges filed notice that they are recusing themselves from being appointed as a judge in this matter.
June 2023: Briefs Are Filed
On June 15, 2023, the Plaintiffs filed a legal brief with the Court, containing their arguments on Count VI. The Defendants filed a brief in response.
July 2023: A Judge Is Appointed
An order filed on July 5 states that Judge David Schell is appointed as judge for this case. Judge Schell is a retired Fairfax County Circuit Court judge.
On July 31 an order is signed, scheduling a hearing on September 19 on the FOIA Count (Count VI), and on the matters in the County’s Demurrer.
August 2023: More Briefs Are Filed
The parties filed legal briefs in support of their positions, in contemplation of arguments being heard on September 19.
September 2023: The Judge Holds a Hearing on Substantive Matters
September 19: Judge Schell heard arguments provided by counsel for both sides, dealing with the Demurrer arguments of the County. The judge also heard testimony from the Plaintiffs on Count VI. The judge said he would rule on the matters at a later date.
October 2023: The Judge Gives His Opinion and Dismisses One Count
October 19: Judge Schell provides an oral opinion from the bench. In matters of demurrers and pleas in bar, judges must base their rulings on the assumption that the allegations are true (though allegations will need to be proven at trial). The judge dismissed the Demurrer and Plea in Bar. Six of the seven Counts survive the Demurrer. Because the Plaintiffs provided evidence on Count VI, the judge was able to rule on Count VI on its merits; the judge dismissed the FOIA claim of Count VI.
November 2023: The Judge Signs Two Orders
At a hearing on November 16, 2023, the judge signed two orders that were written by the attorneys, to comply with his ruling in October. Counsel for both sides objected to the rulings that were not in their favor. Objections are usually made to preserve the right to appeal such rulings (with appeals typically being filed after the trial ends).
A trial date was set for 5 days in July of 2024 (July 8-11, and 15), without a jury.
December 2023: More Motions (and Legal Briefs) Are Filed
The Plaintiffs filed a motion for the judge to reconsider his dismissal of Count VI. The Defendants filed a motion to allow the Defendants to file an immediate appeal with the state appeals court (known as an “interlocutory appeal”) on the issue of standing. Legal briefs are filed in support of these motions.
January 2024: Motions to Reverse the Judge’s October 19 Rulings
Om January 5, 2024, attorneys with the law firm Gentry Locke filed notices to represent the County, to be co-counsel for the Defendants (along with the County Attorney’s office).
January 11: At the hearing Judge Schell denied the Plaintiffs’ motion to reconsider and denied the County motion for an immediate appeal on the standing issue.
February 2024: Orders Are Entered and the Defendant Responds
In early February, orders are signed by the judge based on the January 11 rulings.
On February 22, 2024, an Order entitled “Omnibus Order for Efficient and Orderly Case Administration” is signed that requires the Defendants to file an Answer to the Complaint, and notes that the parties have agreed to develop a plan for discovery. This stage involves depositions, interrogatories, document production, designation of expert witnesses, and more.
On February 23, 2024, the Defendants filed their “Answer and Affirmative Defenses.”
March 2024: The Planning Commission is Dismissed as a Party
On March 1, 2024, the Defendants filed a Motion to dismiss the lawsuit as to the Planning Commission. The motion takes the position that a planning commission is not a proper defendant to a zoning amendment challenge.
On March 19, 2024, the parties submitted to the Court an Agreed Order dismissing the Planning Commission.
April 2024: A Plaintiff Withdraws and a Discovery Dispute Arises
In early April the judge signed an order withdrawing one of the plaintiffs (Kate Pernia).
The Defendants issued and served a subpoena duces tecum on Dan Creedon, an Arlington resident, and a non-party. A subpoena duces tecum is a type of subpoena that is used to require a witness to produce documents pertinent to a proceeding. On April 29, 2024, Plaintiffs’ counsel filed a Motion to Quash the Subpoena Duces Tecum.
May 2024: Discovery Disputes and Plaintiff’s Motion to Dismiss
Various matters involving discovery are filed this month. A June 7 hearing is scheduled on a number of matters.
The Defendant filed an Amended Answer, in order to add some affirmative defenses. The Plaintiffs amended their Complaint, to correct some defects in listing the correct form of ownership of properties (some properties are held in trust). The Plaintiffs filed a Motion for a Partial Summary Judgment, on the first two counts.
June 2024: Witness Disputes and a Motion Fails
On June 7, the hearing on the Subpoena Duces Tecum served on Dan Creedon was a virtual hearing. The parties had come to an agreement regarding Creedon; the parties submitted an order to require Creedon to supply specified documents, and to allow the Defendant to call Creedon as a witness.
On June 10 Defendant filed a Motion in Opposition to Partial Summary Judgment, stating that the motion must fail because Plaintiffs need to prove, through evidence, that the Plaintiffs have established their standing rights.
On June 12 the Plaintiffs filed a notice to withdraw its Motion for Partial Summary Judgment. On June 14 a flurry of motions and notices were filed by the parties, generally relating to the limits of expert testimony at trial. A hearing was scheduled for June 28 to hear the motions regarding expert testimony.
July 2024: TRIAL
The trial is scheduled for 5 days, beginning on Tuesday July 8. In cases similar to this one, and based on Judge Schell’s prior rulings, one can expect a period of several weeks between the trial itself and the Judge’s rulings on the case.
On July 1, the Arlington Chapter of the NAACP submitted an Amicus Curiae brief in the lawsuit.