0
0
Note: Hyperlink references are underlined/bolded below to make them easier to find in the website format.
March 14, 2024
Libby Garvey
Chair Arlington County Board
Ellen M. Bozman Government Center
2100 Clarendon Blvd, Suite 300
Arlington, VA 22201
Need for Greater Transparency of EHO Permit Approvals; Defects in Review Board of Zoning Appeals Procedures for Appeals of EHO Permit Determinations
Dear Chair Garvey:
There is an urgent need to review and improve the County’s flawed process for notifying residents of Expanded Housing Options (EHO) applications and permit approvals in their neighborhoods, and to correct serious defects in the Board of Zoning Appeals (BZA) process. Learning of an EHO permit approval is unnecessarily opaque and the process of filing a BZA appeal is unfair and burdensome for Arlington residents, particularly due to the short 30-day deadline for filing a BZA appeal, which begins tolling before residents could even have notice of an EHO permit approval. Relatedly, the BZA process as the County is currently implementing appears to potentially violate requirements of Virginia law as well as broader due process requirements, with residents being unable to reasonably fully exercise their rights in relation to BZA appeals of EHO permits. Below please find a discussion of some of the expanding list of issues and defects with the County’s BZA appeal implementation that continue to come to light.
(1) EHO Permit BZA Appeal Process Lacks Transparency – No Notice Given of EHO Permit Approvals to Neighbors but BZA Appeals Must be Filed 30 Days from Permit Approval
The failure to notify residents of EHO permit applications and subsequent approvals near their homes reflects a detrimental lack of transparency and an approach out of normal zoning practices and policies. This issue could be easily rectified by the County if it so chose.
In their March 10, 2023 report for the March 18, 2023 County Board meeting for considering the EHO rezoning, on “Tracking and Reporting,” Staff committed to, “publish real-time data on permit applications and approvals through the Open Data Portal (p. 32).” Almost a year after County Board approved the EHO upzoning, there appears to be no such information. A search for “Expanded Housing Options” or EHO yields no results on Open Data Portal.
Staff instead has a weekly update to a so-called Expanded Housing Options (EHO) Permit Tracker website. Staff seeks to update the tracker by noon on a given Friday. EHO applications approved after 12 PM, however, seemingly will not appear on the tracker until a week later. Thus, a potential BZA appellant would unfairly lose up to seven days of the thirty days even if they consistently checked the tracker based on when that 30-day clock begins to run. This recently happened in the March 1-8, 2024 period. An EHO permit approved on March 1 only was only published on the March 8 tracker.
This “passive” providing of information is not fair to County residents and undercuts residents ability to exercise their right of appeal to the BZA in these circumstances. The extensive EHO rezoning of Arlington means residents of all neighborhoods now are at risk of impact from an EHO application. Thus, a large number of Arlington residents are placed in the untenable position of having to on a weekly basis check the EHO website every Friday after 12 PM to see if an EHO permit application was made or approved in their neighborhood, attempt to obtain details of the application – a time consuming FOIA process – and study them thoroughly to understand whether there is a basis and/or reason to file a BZA appeal.
However, as illustrated by the 3802 14th Street North appeal for the February 22, 2024 BZA meeting (see below), where the appellant learned about the EHO permit by accident rather than by design, the website is inadequate method for the purpose of timely notifying of neighbors of an EHO permit submission or an approval.
Does the County really believe that every resident that might be interested in knowing if an EHO permit is approved on the property next door should have to go every Friday and check a website to see if their neighbor has received an EHO permit approval? This reality is even more absurd when noting that for much simpler matters, like a patio variance, County Staff notifies adjacent property owners by mail and posts notices around the immediate neighborhood.
Anything less than service notice along with notices posted in the neighborhood in relation to EHO permits and approvals, just like someone would receive if their neighbor tweaked their patio, is unconscionable and reinforces perceived County biases regarding EHO zoning and applications and appeals.
Unfair Fees and Burdensome Process to Appeal an EHO Permit Approval
Despite the importance of the BZA appeal process as a check on the propriety of EHO permit approvals, the process is unnecessarily onerous and overly complicated for residents. There is a $646 fee to file a BZA appeal (but there is no fee for developers to submit an application). To research, prepare and pursue an appeal involves significant resources (time and expense). Residents typically must file a Freedom of Information Act (FOIA) request to receive details of the developers’ permit applications because the County does not provide these documents online. The County takes significant time, sometimes including an additional extension of time to respond – before eventually providing these documents. In some instances, almost the entirety of the 30-day appeal window has lapsed. The resident is also strapped with paying a fee just to receive these documents. Only then is a resident positioned to evaluate an application which often includes a large number of plans, figures and other technical papers, to consult technical experts or legal representation, and to decide whether or not to appeal, much less draft their appeal and supporting rationale and evidence. Of course, on the flip-side, the EHO applicant, often a well-resourced developer, has prepared these plans at its own pace over numerous months and applied for the permit at a time of their convenience without paying a fee.
Shortcomings of the BZA process are evident in a resident’s appeal of an EHO permit issued for 3802 14th Street North at the February 22, 2024 BZA meeting (see p. 43, Attachment A, Timeline of BZA appeal). The resident had no direct notice of the issuance of the permit and learned of it later from a neighbor. He then submitted a FOIA request to obtain the developer’s plans to ascertain if there were any errors in approving the permit application. The resident then filed his appeal online within the 30-day period, checked on the status of the appeal online, and saw that it had been routed to someone else within the County. Only after the 30-day deadline passed did the resident learn that the County has routed his appeal to the wrong County office. The BZA, nonetheless, voted 3-2 to dismiss the appeal as untimely, despite the clear County errors that frustrated the resident’s efforts to take advantage of his right of appeal to the BZA.
Questions of Fairness in BZA Hearings
According to the County’s website, the BZA is a “quasi-judicial body“ that can review the decisions of the Zoning Administrator. Comments by some BZA commissioners, however, raise questions about the true “impartial” quasi-judicial nature of the BZA’s role here given apparent biases among some of the commissioners based on their comments and rationales for their EHO related decisions recently.
At the January 24, 2024 BZA meeting, at the conclusion of the hearing on the Zoning Administrator’s decisions regarding the permit approval for two 6-unit buildings adjacent to one another, one on 4015 and the other on 4019 7th Street South, one BZA member seem to reveal a blanket prejudice against EHO appellants stating that the appeal being heard was about “opposition to the passage of EHOs by the elected County Board;” that the “appellants have chosen to nitpick” to “undo the will of the County Board;” and that “this appeal has zero business being in front of the Board of Zoning Appeals.” (See January 24, 2024 meeting at 1:51). The apparent bias by the Commissioner expressing those sentiments were highlighted by another BZA member displaying significantly more professionalism and a better understanding of the BZAs important responsibilities in the County as a quasi-judicial body. She disassociated herself from the other Commissioner’s comments and noted that the appeal raised “very legitimate concerns.”
The appearance of bias is not only apparent in the statements and disposition of some of the BZA adjudicators, but also in the very structure and manner with which these appeals are conducted. During an appeal hearing of an EHO permit, the BZA considers the arguments by the Zoning Administrator who made the decision at issue (thus of course purports it to be correct) and also the views by those opposing that decision, essentially opposing viewpoints that one might expect to find at opposing positions or tables in a court or board room.
However, in these Appeals one of the interested parties – the Zoning Administrator – sits at the dais with the five BZA commission members, presents their arguments with little to no restraints in their presentation and their ability to answer questions of the Commissioners. In addition, County staff prepares in what appears to be every instance a detailed memoranda to the BZA Commissioners fully supporting the decision of their senior official – the Zoning Administrator. The residents challenging the issuance of EHO permits are positioned to sit down below and facing the panel of BZA members, the Zoning Administrator himself, and additional County staff. Resident – Appellants right of reply or rebuttal to assertions made by Commissioners or the Zoning Administrator is extremely limited and seemingly at the complete discretion of the BZA Commission’s Chair. Based on these experiences, perceived County biases against residents and in favor of land developers would appear reinforced and warranted again here merely on appearances.
(2) EHO BZA Appeals Revealing Expanding List of Problems with EHO Ordinance and County’s Application
Errors in County understanding of requirements of its own Ordinance and failures to comply with Virginia law on basic zoning requirements such as setting and collecting a fee for EHO applications reinforce the continually expanding list of serious defects with the EHO ordinance.
County withdraws EHO permit. A BZA appeal uncovered a flaw in an EHO application causing it to be withdrawn, as one of many instances where applications are incorrectly granted as a result of the County misapplying its very own Ordinance requirements. Here, days before the BZA February 22, 2024 meeting having an appeal of an EHO permit issuance, the County reversed itself and rejected the permit application.
The five Arlington residents who brought the appeal hired a professional engineer who concluded that the County had insufficient information in the permit application to determine if the plans complied with the EHO zoning rules for lot coverage, building placement, stormwater management, parking, and other issues.
But for the residents’ appeal, the developer could have moved forward with the EHO-approved plans for the 3-story, 7,987 square foot gross floor area, 5-unit building – replacing a one-story single-family home at 5630 8th Street North. The County continues to issue EHO approvals not because they satisfy the requirements but because the County wants EHO approvals, again fostering resident’s perceived bias against them and in favor of EHO developers.
County reversal on no EHO permit application fees. Similarly, a BZA appeal apparently led the County to reverse its policy on no fees for EHO permits. The appeal on the 4015 and 4019 7th Street South properties heard at the January 24 BZA meeting argued amongst it several points the EHO permits were invalid because, “They were issued without collection of fees in violation of ACZO §15.1.5. (p. 2)”
The Zoning Administrator refuted this point and the BZA supported this decision, but the County seemingly now agrees the lack of a fee for MMH/EHO permit applications is in violation of state law. Arlington’s Planning Commission on March 4 considered the County should adopt a fee of $513 to apply for these MMH/EHO permits (p. 2). This is a welcome and long overdue step to bring the EHO permitting process more in line with other permitting fees. The Commission unfortunately also considered an increase in the fee that residents must pay to seek a BZA appeal from $646 to $1,066 (p.11). This, however, create a bigger barrier for Arlington residents who decide to appeal to the BZA and have a greater impact on Arlingtonians of more limited means. And again, how can the Community not believe the County is biased towards EHO and developers submitting applications and against residents when the County only institutes a fee for developers when appeals show the lack of an EHO application fee violates Virginia Law. And then at the same time the County seeks to almost double the resident appeal fee so it will now be twice as much as developers would pay to have an EHO application considered.
Recommendations:
AFUT believes the County should take the following steps now to mitigate some of the expanding list of defects and problems in the EHO ordinance implementation as described herein:
- Arlington residents should be given notice of EHO permit applications and approvals near them, just as neighbors are given notice for variance requests, including where to find the permit application or approval on the County’s website. This is already in existence for most zoning occurrences. This is wholly within the County’s ability and purview if it wishes to administer a more transparent process for the community and one that aligns more with normal zoning and land use practices.
- The County should provide free online access to EHO permit applications and permit approvals and eliminate the need for residents to have to file FOIA requests to find the details of an approved permit. The current requirements are overly burdensome and wholly ineffective in providing information to residents and those directly impacted.
- The County should review the BZA procedures and practices and further consider providing training for BZA Commissioners to ensure anyone sitting in this important quasi-judicial Community role is able to do so in a fair and impartial manner so as to improve community trust in the process.
- The BZA appeal fee should not be increased but lowered to ensure Arlingtonians can exercise their legal right if they choose to do so.
We look forward to the County Board at least taking steps to rectify the problems in the EHO permit and BZA appeal process that we have identified herein.
Arlington prides itself on its open and inclusive decision-making. It is imperative that the County Board address the lack of transparency in the EHO application and approval process, the issues of perceived political bias of certain BZA commissioners that appears to interfere with their quasi-judicial role, and the raising of fees for BZA appeals that further undercut residents in exercising their rights to challenge incorrectly issued permits.
Representatives from AFUT would be happy to meet with you to discuss these proposed reforms. We look forward to hearing by way of response as to the specific actions this Board will be taking in the next few weeks to address these issues.
Sincerely,
David Gerk for
Arlingtonians for Upzoning Transparency (AFUT)
Cc: Members, Arlington County Board
Mark Schwartz, Arlington County Manager
Richard Kaplan, Chair BZA
