The Arlington County Council voted unanimously to appeal a judge’s decision regarding Missing Middle’s zoning changes.

County attorneys previously said they planned to contest the circuit court decisionwhich prevents the county from issuing further permits under the highly controversial expanded housing option. However, the Arlington County Council had not held a public vote on an appeal until yesterday (Tuesday).

“The Commission considered adopting a revised order, but determined that this was not possible based on the legal construction and content of the judge’s decision,” said Chair Libby Garvey. “We and many Virginia jurisdictions are concerned that this decision will have impacts that extend far beyond our EHO policy, impacting our current, decades-old understanding of how land use decisions are taken and implemented under local jurisdiction.”

No members of the public spoke before the vote, which Garvey presented as the final agenda for an evening meeting. The item was not included in the meeting minutes agenda.

A county webpage with numerous documents related to the trial – including trial transcripts, evidence presented to Judge David Schell and an FAQ – were posted online this morning.

Questions for a higher court

Schell’s final order on the trial rules against the county on four counts.

It concludes that the county board failed to adequately consider the localized impacts of its decision, illegally delegated authority to issue permits to county staff, violated state canopy requirements forester and did not follow the proper procedure to initiate the process of approving the EHO order.

This last observation proved particularly embarrassing for the county. In the final order, Schell wrote that Virginia law required the county to file a “resolution to amend” before filing a “resolution to announce” the ordinance.

“The use of the term ‘initiate’ (in Virginia law) requires that the amending resolution be the first step in the process and not an intermediate or final step,” he wrote. “Resolving to advertise is a separate next step in the process. A two-step process is required, first a resolution to be amended, then a resolution to be announced.

Schell and the county said the discovery, while technical in nature, could have broad implications.

On October 1, less than a week after the circuit court’s decision, the county board held a special meeting regarding 10 active “request for publicity” resolutions on zoning and land use topics. All resolutions contained language indicating that the Council would “consider” adopting the resolutions.

The Council readopted the resolutions, replacing the word “consider” with the phrase “decides and intends to adopt”.

The intent of this decision, according to a county employee reportwas to “comply with the decision and allow county business to continue as planned.”

Schell noted in his ruling, however, that a simple solution to this problem may not be possible.

“The County Council maintains that the inclusion of both resolutions in the Advertising Resolution is how it has been done in the past in Arlington and Fairfax without difficulty,” he wrote. “That may be true, but no court has sanctioned or reviewed this practice. The court is incapable of ignoring carefully crafted statutory language.

Garvey argued that the county has an imperative to appeal a finding with such unclear and potentially far-reaching implications.

“These concerns need to be examined and clarified by a higher court,” she said. “We believe the county has fully complied with Virginia law and has good cause to appeal.”

Next steps

In court last month, the county attorney estimated it will be at least a year before this case reaches the Virginia Court of Appeals.

In the meantime, Schell has authorized the continuation of current EHO projects. However, the promoters of these projects must make a note in the land registers indicating that future land owners are making a bet.

According to Schell last month, depending on the evolution of the ongoing litigation, it is possible that the future occupants of these properties will have to move and that the future owners will have to modify the nature of the buildings.

“You are taking a huge risk, in my humble opinion, if you build a sixplex or a fourplex while the case is pending before the court of appeal,” the judge said.

A full statement from the county board regarding its appeal – posted on the county’s new page for the EHO lawsuit – can be found below.

Since late September, the Board has deliberated on the decision in the Expanded Housing Option Development lawsuit (Nordgren v. Arlington County Board). We heard from residents, reviewed the final order, and consulted with the county attorney and outside legal counsel.

The Commission ordered the county attorney to appeal the decision. The Commission considered adopting a revised order, but determined that this was not possible based on the legal interpretation and content of the judge’s decision. We, along with many Virginia jurisdictions, are concerned that this decision will have impacts that extend far beyond our EHO policy, impacting our current, decades-old understanding of how EHO use decisions Lands are taken and implemented under local jurisdiction. These concerns must be examined and clarified by a higher court.

We believe the County has fully complied with Virginia law and has good grounds for appeal. Pending appeal, staff will respect the decision as it is. The County will also continue its efforts to address housing needs throughout our community.