On Friday, September 27, Judge Schell is expected to rule on the case against Arlington’s Expanded Housing Options (EHO) ordinance.

The lawsuit brought by the plaintiffs originally included seven separate “counts,” or claims about why the ordinance should be invalidated. The judge will rule on each count, so it is feasible that the county will win some and the plaintiffs might win some.

So in order to understand the ruling, we’ll need to have a better understanding of the substance of each of the counts in the lawsuit. Below is a very brief overview of each of the six remaining counts being considered. 

I. The Board failed to initiate a resolution to amend the zoning ordinance. 

Plaintiffs claim that the county did not “initiate” the zoning amendment in the proper way, referring to Virginia Code § 15.2-2286(A)(7). 

The response: The Board followed the standard approach used for decades by Arlington and other jurisdictions to advertise and vote on the zoning amendment, which included a vote on a Request to Advertise, followed by the final vote on the ordinance. Virginia law does not require an independent and separate vote in order to start the process. 

II. The Board failed to properly advertise the zoning amendment.

Plaintiffs claim that the amendment was not properly advertised because it did not provide a descriptive summary of the proposed action, referring to Virginia Code §§ 15.2-2204(A)* and 15.2-2285(B) & (C). They also claimed that the options provided in the advertisement were too confusing. 

The response: Advertisement of the amendment followed the standard approach used by Arlington and other jurisdictions. The law did not require a detailed explanation as part of the published advertisement itself, and the use of options as part of the advertised amendment was aimed at providing more transparency rather than less. In addition, the Plaintiffs waived any alleged defect when they actively participated in the hearing, indicating that the advertisement was effective.

* A 2023 amendment deleted the “descriptive summary” portion of Code § 15.2-2204(A), but it was enacted after EHO was adopted.

III. The Board failed to reasonably consider required factors. 

Plaintiffs claim that the county did not consider the factors required under Virginia Code §§ 15.2-2283 and 15.2-2284.

The response: All factors were considered through staff analysis and community and consultant input during the multi-year study, and the law in no way requires formal studies by outside consultants. Highly qualified staff experts evaluated potential impacts on transportation, schools, water and sewer, stormwater, trees, the comprehensive plan, and other issues. 

Prior case law has concluded that courts should not substitute their own judgment for that of a legislative body. The standard is whether the issue was “fairly debatable” and does not require that the policy conclusion meets any other evidence standard. 

IV. The Board unlawfully delegated legislative authority to staff members.

Plaintiffs claim that an EHO development is a special use that should require a decision by Board members in each case, referring to the definition of “special exception” in VA Code § 15.2-2201.

The response: EHO approvals are by-right with clear requirements, not “special exceptions” that would require review and approval by the Board. The Board has the legislative authority to define what it considers to be a by-right use in each zoning district. 

V. The Zoning Amendment is arbitrary and capricious.

Plaintiffs claim that the county’s adoption of EHO violated its enabling authority for zoning under Virginia law. 

The response: As with Count III, the county must meet the “fairly debatable” standard, and it is clear that reasonable consideration was made of all required factors.

VI. The Board failed to comply with state FOIA statutes.

This count was dismissed by the judge in October 2023 after a hearing of the evidence. The judge ruled in favor of the county, saying it did not violate the FOIA statute. 

VII. The tree requirement is contrary to state law.

Plaintiffs claim that the tree provisions in the EHO ordinance exceed what is allowed under the Chesapeake Bay Preservation Act, VA Code § 15.2-961.

The response: The requirements under the Chesapeake Bay Preservation Act can exist side-by-side with the EHO tree provisions without conflicting. In addition, the county has authority to implement “incentive zoning” where, according to state law, additional density is allowed in exchange for certain benefits provided by the developer. The developer is not required to meet the greater tree requirements if it chooses to develop other by-right uses on the property.