Is count 4 based exclusively on the fact that the relevant zoning districts are called "One-Family Dwelling Districts"? Are you of the opinion that if they were just called "Residential Districts" that the judge would have dismissed this count?
Additionally, is the "permit" required for EHO's (which were allowed by-right) referencing the administrative approvals? The order says "it is uncontradicted that a permit is required in order to build a EHO housing unit on a single-family zoned lot." Without having seen the language in the original ordinance, what "permit" was required if they were described as by-right?
I think, but am not sure, that Judge Schell based his Count 4 ruling both on the need for a special use permit and on the fact that the zoning classification had not changed. I think this language from his ruling may be relevant:
The first question is just, What is a special exception? The simplest and easiest answer is
that a special exception is as defined in 15.2-7 2286(A)(1). That code section defines a special
exception as, quote, A special use that is not permitted in a particular district except by
special-use permit granted under the provisions of this chapter and any zoning ordinances adopted herewith, end quote.
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.
Ahh, so while the EHO was permitted as a by-right use in the ordinance, Judge Schell was of the opinion that a special use permit *should have* been required because of the underlying zoning still being single-family homes. I think his sentence that "it is uncontradicted that a permit is required in order to build a EHO housing unit on a single-family zoned lot" is confusing, because in fact a permit was not required, as it was by right. But his opinion is that it is obvious that a special use/exception permit *should* be required.
I also wonder what implication his ruling in count 1 will have on ordinances adopted across the state. It seems it could have a similar impact to DAVID BERRY, ET AL. vs BOARD OF SUPERVISORS OF FAIRFAX COUNTY that ruled the rewrite of Fairfax's zoning ordinance void based on the adoption process playing out at virtual meetings and violating open meeting provisions of the Virginia FOIA. That ruling left localities scrambling to re-adopt ordinances that may have been originally adopted in violation. I wonder how many zoning ordinances and amendments to ordinances have been adopted in violation of Judge Schell's findings in count 1. Could be messy, though I suppose that would fall under the 30-day right to appeal? So maybe it's not an issue.
Is count 4 based exclusively on the fact that the relevant zoning districts are called "One-Family Dwelling Districts"? Are you of the opinion that if they were just called "Residential Districts" that the judge would have dismissed this count?
Additionally, is the "permit" required for EHO's (which were allowed by-right) referencing the administrative approvals? The order says "it is uncontradicted that a permit is required in order to build a EHO housing unit on a single-family zoned lot." Without having seen the language in the original ordinance, what "permit" was required if they were described as by-right?
Conor: Thank you for taking the time to write.
I think, but am not sure, that Judge Schell based his Count 4 ruling both on the need for a special use permit and on the fact that the zoning classification had not changed. I think this language from his ruling may be relevant:
The first question is just, What is a special exception? The simplest and easiest answer is
that a special exception is as defined in 15.2-7 2286(A)(1). That code section defines a special
exception as, quote, A special use that is not permitted in a particular district except by
special-use permit granted under the provisions of this chapter and any zoning ordinances adopted herewith, end quote.
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.
Ahh, so while the EHO was permitted as a by-right use in the ordinance, Judge Schell was of the opinion that a special use permit *should have* been required because of the underlying zoning still being single-family homes. I think his sentence that "it is uncontradicted that a permit is required in order to build a EHO housing unit on a single-family zoned lot" is confusing, because in fact a permit was not required, as it was by right. But his opinion is that it is obvious that a special use/exception permit *should* be required.
I also wonder what implication his ruling in count 1 will have on ordinances adopted across the state. It seems it could have a similar impact to DAVID BERRY, ET AL. vs BOARD OF SUPERVISORS OF FAIRFAX COUNTY that ruled the rewrite of Fairfax's zoning ordinance void based on the adoption process playing out at virtual meetings and violating open meeting provisions of the Virginia FOIA. That ruling left localities scrambling to re-adopt ordinances that may have been originally adopted in violation. I wonder how many zoning ordinances and amendments to ordinances have been adopted in violation of Judge Schell's findings in count 1. Could be messy, though I suppose that would fall under the 30-day right to appeal? So maybe it's not an issue.