Deep Dive: What Really Happened in Arlington County's Zoning Case

Reading Judge David S. Schell's ruling invalidating Arlington's single-family zoning amendments

Retired Fairfax County Circuit Court Judge David S. Schell

On September 27, 2024, Judge David S. Schell ruled from the bench that Arlington County’s Expanded Housing Option [EHO] “…zoning amendment is void ab initio, and the County Board and the County of Arlington are hereby enjoined and prohibited from issuing permits for or approving applications of EHO development pursuant to the zoning amendment.”  Ab initio is a Latin term meaning “from the beginning.”  Void ab initio describes an action that never had legal effect.

The transcript of Judge Schell’s ruling striking down the EHO amendments is viewable

EHO authorized the construction of up to six units on lots in Arlington’s single-family housing zones. Judge Schell is also hearing the case challenging Alexandria’s Zoning for Housing (ZFH) zoning amendments which, among other changes, allow the construction of up to four units in single-family zones.  Depending on who is talking, there are various predictions about the effect of Judge Schell’s ruling on Alexandria’s case.

What follows describes why Judge Schell ruled for the plaintiffs on four counts in the EHO case—which has not been fully covered in the media—and how his rulings may affect the prospects for EHO’s revival.  No forecast or analysis is offered about the final results of the EHO or ZFH litigation, or the merits of changing single-family zoning to permit multi-unit dwellings.

The EHO case’s essence is whether a locality and its governing body correctly followed Virginia law in amending a zoning ordinance.  Judge Schell ruled for the plaintiffs on Counts One, Three, Four and Seven of a seven-count complaint. Some of the defects identified by Judge Schell appear to be readily curable by the County Board; others may be more problematic.

Count One—The County’s Failure to Adopt an Initiating Resolution or Motion Judge Schell found that while the proposed EHO zoning changes were properly advertised, the Arlington County Board failed to adopt a legally-required separate resolution to amend its zoning code. The ruling states:

The code mandates a simple process. The governing body must pass a resolution providing for amendment to the zoning regulations. In addition, pursuant to Code Section 15.2-2204, the governing body must authorize advertisement of public hearings. In the case before us, the governing body did not pass a resolution separate from the resolution to authorize advertisement of public hearings.

If the EHO zoning changes are to be revived, the County Board must adopt a separate resolution to initiate amendments to the zoning code

Count Three—The County’s Failure to Address Storm Water and Sewer Issues Judge Schell found that the County Board failed to take into account the potential effect of the EHO zoning changes on local sewer laterals connecting to the County’s storm and wastewater infrastructure:

… the Board only needs to show some evidence of reasonableness in its decision to defeat this count. The difficulty for the Board, in this case, is the lack of any consideration of the effect of additional sewer water and storm water on the local laterals from single-family homes along the length of the sewer system.

Laterals are defined as the pipes from the homeowner’s home to the county sewer system. It appears from the evidence that no consideration was given to the effect of additional influx of sewage from additional units built on the lot where a single-family dwelling once stood.  There is no evidence that the Board considered that a sixplex, with at least six toilets, additional washing machines, showers, sinks and dishwashers would increase the flow in the county sewer system so that home-owners sharing the sewer line with that sixplex would suffer sewage back up into their homes.  No study was brought forward that looked at this additional flow on the laterals coming from single-family homes on the sewer system.

The type and scope of a storm water and sewage infrastructure study that will address Virginia’s legal requirements for the adoption of zoning ordinances is a relevant and important question.  Arlington County’s online permits tracker is viewable

It shows that EHO permits granted to date are in scattered locations.  A sixplex on one block may cause the negative storm water and sewer flow effects that Judge Schell’s ruling describes while a sixplex on another block may have no such effects.  If Judge Schell’s Count Three ruling is not overturned on appeal, it will be interesting to see how the county addresses the required study of the impact on local sewer laterals necessary to revive EHO.

Count Four—The County Board’s Unlawful Delegation of Legislative Authority Judge Schell ruled that the County Board improperly delegated its legislative authority to its staff:

In the case before us, it is uncontradicted that a permit is required in order to build a EHO housing unit on a single-family zoned lot. The evidence makes clear that no one can build such a EHO housing unit without a permit. The evidence also clearly shows that, for the purpose of this statute, the zoning in the affecting area has not changed. The zoning is still single-family homes on the appropriate lots.

So, the construction of EHO housing is changed in the general regulations of the zoning district.  The issuance of these permits has been delegated to staff and not to the appropriate legislative entity for scrutiny. This removes the special exception procedure, which would require a public process, localized studies, public participation, and consideration of the protection of neighboring residents from the excepted use. Such an assignment of legislative scrutiny is not allowed or authorized under Virginia case law…

Media reports (The Washington Post, “Arlington ends single-family-only zoning,” March 22, 2023; The Washington Post, “Counties and states are ending single family zoning. Homeowners are suing,” July 8, 2024) have said that Arlington and Alexandria, by adopting EHO and ZFH, “ended” single family zoning.

However, Judge Schell reasoned that if single-family zoning exists as a zoning ordinance category (as it still does in Arlington and Alexandria) then the case-by-case legislative special-use permit process (including review and permit granting by the governing body) is legally required.

Count Seven—EHO’s Defective Provisions Regarding Arlington’s Tree Canopy   Section 15.2-961 of the Virginia Code says that localities, including Arlington and Alexandria, “…may adopt an ordinance for the planting and replacement of trees during the development process pursuant to the provisions of this section.”  Subsection C says, “In no event shall any local tree replacement or planting ordinance adopted pursuant to this section exceed the requirements of this subsection.”  The complete statute can be seen

Section 15.2-961 is elective, not mandatory—localities may adopt a tree planting ordinance as part of the development process. Judge Schell ruled that, “The provisions of the EHO regarding tree canopy are directly contrary to the requirements of 15.2-961.  And, in fact, exceed the requirements of 15.2-961.” 

Accordingly, for EHO to be revived whatever it says about Arlington’s tree canopy must be changed to align with Section 15.2-961 or EHO must be changed to say nothing about tree planting which could reduce the number of trees in the County’s tree canopy unless EHO permittees voluntarily replace the trees they remove when multi-unit dwellings are built.

Where Things Go from Here Judge Schell’s ruling appears to apply the facts of EHO’s adoption to principles of Virginia law.  While litigants may settle their disputes, it is difficult to see a settlement, or another avenue that revives EHO, that does not address the four issues on which Judge Schell ruled for the plaintiffs.

Judge Schell’s bench ruling, while important, is almost certainly not the last word in the EHO case.  The ruling directs the submission, by October 25 or earlier, of an Order for signature by Judge Schell. Either the plaintiffs or the County may appeal adverse decisions in the Order and the outcomes of such appeals are difficult to predict.

The effect of Judge Schell’s ruling on existing EHO permittees is another concerning and potentially uncertain matter.  Arlington County’s Department of Community, Planning, Housing & Development sent letters to EHO permittees saying that as a consequence of Judge Schell’s ruling:

… the County must void all EHO permits and halt all associated review processes. If you have a previously approved EHO permit, it is now void, or simply put, no longer exists. Furthermore, we cannot take any further actions and/or process any other permits (demo, building, trades, etc.) related to your EHO development. If you have an EHO permit application currently under review, besides voiding the permit, staff will take no further actions in that process. If you have already begun active construction activity for your project, we will be reaching out to you separately with additional information.

The practical effect of Judge Schell’s ruling may be to test whether Arlington’s leaders have the political will to remedy the four defects—adoption of an EHO initiating resolution, the absence of an analysis of EHO’s localized impacts on sewer laterals, lack of fidelity to the legislative special use permit process, and changing or dropping EHO’s tree planting component—that underlie the suspension of EHO and to adopt a revised version of the ordinance. 

If that political will exists, the result will likely be more of the extensive community debate for which Arlington County is justly famed.

Your comments are very welcome.

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