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County approves more Missing Middle projects after trial date set for lawsuit

An anti-Missing Middle sign in front of a house in Westover (staff photo by Jay Westcott)

Although Arlington County is set to go to court next summer over its Missing Middle zoning ordinances, it has not stopped approving these new housing projects.

Judge David Schell has scheduled a 5-day trial to begin on July 8, 2024 after ruling in October that the 10 residents suing Arlington over the ordinances had standing. Among other claims, they argue the county violated state law by not sufficiently considering the impacts of Missing Middle.

“The court found it ‘readily apparent’ that a homeowner whose land is rezoned could sue, adding that it would be difficult to understand how such a property owner would not have standing,” per a press release from Arlingtonians for Upzoning Transparency, or AfUT, a group that formed in opposition to the ordinances but is not a party to the case.

“Such a challenge, the Court stated, was a ‘quintessential use’ of the law,” it continues.

The county disagrees. Arlington County Board Chair Christian Dorsey told AfUT in an email it “is wholly within the purview of the local legislative body, which has the constitutional authority to make countywide land use decisions, revisions, and repeals if necessary.”

“It is our position that the Judiciary should not substitute its judgment for decision-making expressly reserved for the local legislative body,” Dorsey continued.

Arlington County will attempt to appeal the judge’s standing decision in a hearing on Jan. 11. Should the judge grant the appeal, the Virginia Court of Appeals would decide whether to accept the case.

“The County’s hubris in claiming that the courts don’t have a role in reviewing EHO zoning is astonishing,” says Dan Creedon, speaking for Arlington Neighbors for Neighborhoods, the organization that is financially supporting the lawsuit. “But now that a trial date has been set, and maybe reality is setting in, the County is seeking an appeal that could delay the trial and add tremendous expense to the litigation.”

The residents, meanwhile, plan to appeal the judge’s decision to deny its claim the county violated Freedom of Information Act laws in how it disseminated information to the County Board and the broader community.

“They had argued that they asked the County clerk for all public comments and the clerk emailed a link to the County website that had only a few letters,” anti-Missing Middle group Arlingtonians for Our Sustainable Future said in a press release last week, after the trial date was set. “A FOIA request revealed, in fact, the County had far more.”

Twenty-one Missing Middle projects — about a third of the 58 permits currently allowed per calendar year — have been approved as of last week, according to the county’s permit tracker. Five are under their first or second review, eight had their first review rejected and one application was withdrawn.

None of the projects are located in the county’s zoning districts with the largest lot sizes, or 8,000 to 20,000 square feet.

Developers who spoke to ARLnow said their project’s status depends on how many of the required permits they have in hand.

Home builder Ned Malik, whose Bluemont neighborhood project has started demolition following county approval, says he is undeterred by the lawsuit.

“We’re hoping to get started on construction in the first quarter of 2024,” Malik says. “We are moving forward on it. We definitely would be a witness for the county [as to] why it’s a much-needed thing, smart thing to do.”

As for the lawsuit, he says the “not-in-my-neighborhood attitude” on display shocks him. He is confident the outcome will be in the county’s favor but, if not, he says he would appeal the decision.

“Arlington… is trying to make homes affordable where people want to live, work and play, so we can cut down on unnecessary travel, traffic, pollution — all those things,” he said. “It’s for the greater good for everybody who wants to live in Arlington. The county should be lauded as taking a bold step to make this happen. Hopefully, other counties will follow suit.”

Former Arlington County Board candidate Natalie Roy, who now publishes a newsletter called “EHO Watch” — EHO stands for Expanded Housing Options, another term for Missing Middle — says she has several key questions.

“What happens if a builder completes their construction before July?” she writes in her most recent missive. “What happens to projects that are in process or have not even started construction?”

Asked if Arlington has a contingency plan for approved projects, given the trial, a spokeswoman for Arlington’s planning department said the county cannot comment on active litigation.

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