County Board Votes to Appeal Expanded Housing Options 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.”
At its November meeting, the Arlington County Board voted unanimously to appeal the judge’s decision in the Expanded Housing Options (EHO) case, also known as Nordgren vs. Arlington County Board. At the time of the vote, Board Chair Libby Garvey read prepared comments on the decision to appeal. She noted that the County Board members had considered passing a revised ordinance, but determined that was infeasible because of legal issues in the judge’s ruling that have impacts beyond EHO. Now, the appeal process will begin and is likely to last between one and two years.
In the interim, because of the partial stay granted last month, the 45 current EHO permit holders technically have the option to continue. In reality, very few are likely to continue as EHO development because of the serious risks posed by the ongoing litigation that make obtaining financing and title insurance for the properties infeasible. Some developers may argue that their development rights are “vested” under state law, which would allow them to move forward without the conditions and risks created by the judgement and the partial stay. It is not yet clear whether that is a realistic option.
The County also recently announced a new public EHO Trial and Appeal Information webpage with the full trial transcripts and the County’s evidence, as well as a set of Frequently Asked Questions about the ruling and process.
Slide from Arlington County’s evidence in the EHO trial obtained from the EHO Trial and Appeal Information website. According to the site: “The data shows that while the population has increased, water usage has decreased. This is due in part to more efficient modern appliances and infrastructure as redevelopment occurs. The County’s system currently has so much excess capacity that EHO development would have a marginal impact on the capacity of the system.”
