DEVELOPING: A group of residents is suing the county over Missing Middle

(Updated at 1:35 p.m. on 4/26/23) A group of residents has filed a lawsuit in Arlington Circuit Court alleging the zoning changes called Missing Middle are illegal.

The residents say Arlington County ran afoul of state law by rushing through the changes without considering impacts on infrastructure and community resources — a frequent criticism of the years-long policy discussion.

Last month, the Arlington County Board approved changes to the zoning code allowing up to six-unit dwellings on lots previously zoned only for single-family homes. The Board did approve a set of limitations intended to control the pace and impact of development, including parking minimums, permit caps and tree planting requirements.

According to “Arlington Neighbors for Neighborhoods,” a group that issued a press release on behalf of the plaintiffs, that was not enough.

“State law requires that zoning ordinances consider needs for transportation, schools, parks, recreation, and public spaces, as well as the conservation of natural resources,” the statement said. “The law also requires consideration of a locality’s comprehensive plan, which addresses stormwater, sanitary sewer, water distribution and more.”

The group said the lawsuit claims Missing Middle — also referred to by the county as “Expanded Housing Options” or EHO — is “arbitrary and capricious and bears no reasonable relationship to public health, safety, morals or the general welfare, as required by state law.”

(In addition to issuing a press release, Arlington Neighbors for Neighborhoods “has raised funds to support the litigation,” an attorney for the plaintiffs told ARLnow.)

Their lawsuit says the county also violated state law the following ways:

• The zoning amendment process was not initiated by a proper Planning Commission motion or County Board resolution
• The zoning amendment was not properly advertised
• The EHO cap is a special exception to the zoning regulations and requires County Board review of applications
• The County Board failed to share with the public documents that were furnished to it about EHO
• The county violated the Dillon rule by knowingly requiring a number of shade trees that exceeds what Virginia allows localities to impose

Their petition asks the Circuit Court to declare that the zoning amendments violate state law and prevent the county from issuing EHO permits.

The allegations that the County Board violated Virginia Freedom of Information Act laws may require a hearing in the coming days, said another anti-Missing Middle group, Arlingtonians for Our Sustainable Future (ASF), in an email newsletter today.

“There will likely be other hearings in the coming months,” ASF said. “Then, of course, there may be appeals. Any complaint in a lawsuit consists of allegations which must be proven in court, and challenging zoning is surely an uphill battle.”

ASF noted that the FOIA allegation resembles a successful lawsuit against Fairfax County that led to the overturn of zoning changes it made two years ago. Last month, the Virginia Supreme Court declared the county’s 2021 zoning modifications void because the new code was adopted at a mostly virtual meeting.

One of the Fairfax County plaintiffs even advised Arlington residents in a post on Nextdoor to file a lawsuit.

“Sue them,” she said in response to a post musing about recalling the Arlington County Board. “We just won our lawsuit… it took two years, but it was worth it.”

In response, two residents pointed out that her victory was on procedural grounds due to how the meeting was conducted.

“It will likely pass again, with in-person public hearings and votes,” said one Donaldson Run resident. “Congratulations, you’ve succeeded in wasting taxpayer dollars and time.”

Another Nextdoor user pointed out that the Fairfax ruling is possibly not as germane as people think.

“I don’t see how the ruling could affect Arlington’s vote… as the board has been convening in person for a year now, so the vote (and public comment) was in person and the outreach surveys were in person,” she said.

Shortly after the unanimous Missing Middle vote in March, another group formed to oppose the changes, Arlingtonians for Upzoning Transparency (AfUT), released a statement hinting at a potential lawsuit. After it was announced this afternoon, both AfUT and ASF said their groups are not involved in the suit.

“AfUT just learned of this filing and will be learning more about it,” member Richard Epstein told ARLnow. “AfUT is not a plaintiff nor otherwise involved in the lawsuit. Many residents as well as AfUT itself raised serious concerns about the process the County Board pursued in passing its Missing Middle Housing/EHO plan. It is critically important that the County Board complies with the law in the actions that it takes.”