The first Missing Middle case to be heard in Arlington Circuit Court was dismissed last week, but legal fees in another lawsuit against the county continue to balloon.
The dismissed lawsuit related to a pair of planned six-plexes in Alcova Heights, approved after the Expanded Housing Option changes. A judge struck the suit down on Friday “due to technical defects,” Zachary Williams, an attorney for developer Classic Cottages, told ARLnow.
“Our client is very pleased with the result and intends to proceed to build the project as approved,” he said.
Plaintiff Kelly Reed is “currently evaluating her options going forward,” Reed’s attorney, Aristotelis Chronis, said.
This news comes as attorney fees from a more expansive lawsuit against EHO have mushroomed in recent months. The county paid the law firm Gentry Locke $173,879 between March 30 and April 30, for a total of nearly $300,000 in spending since January, invoices show.
The dismissal
Reed had originally approached Arlington’s Board of Zoning Appeals with concerns about the proposed development at 4015 and 4019 7th Street S. She asserted that the project permits were unlawfully issued and do not conform to county zoning requirements.
“This is not a pro- or anti-EHO case,” she said in January. “This case has ramifications far beyond EHO and regardless of use, as this case is about getting the math right. It’s about following the rules. It’s about not cherry-picking definitions. Please correct the staffs’ errors and reject the wrongly approved permits.”
When the county rejected Reed’s effort, she appealed to the Circuit Court.
The dismissal concerns Reed’s standing to pursue legal action, rather than the merits of her arguments, attorneys said. Previous filings had failed to indicate how, specifically, she believed the planned development would harm her.
“Reed makes a single conclusory statement that she is an ‘aggrieved and adversely impacted’ party because the BZA decision adversely impacts the use and enjoyment of her property,” a motion to dismiss says. “Reed alleges no facts showing she is aggrieved.”
The Board of Zoning Appeals was listed as a defendant in this case along with Classic Cottages.
“This is the first EHO case heard in the Circuit Court,” the county said in a brief statement. “Each case is unique and the County will consider and defend each case on its own merits.”
Growing fees
Meanwhile, a scheduled trial for a higher-profile Missing Middle lawsuit is just weeks away.
A five-day trial over whether the county followed appropriate procedures in approving Missing Middle zoning changes is slated to begin July 8, according to court records.
Since the start of this year, the county has spent $295,267 on attorney fees related to this case. More than half of that spending was in April, per invoices.
A GoFundMe campaign to support the plaintiffs in that lawsuit has garnered some $82,000 since last June.
Community responses to the litigation have laid bare schisms in Arlington political life.
It has been a significant talking point in the Arlington County Board race, especially for Missing Middle critics Natalie Roy and Julie Farnam. Roy’s newsletter, EHO Watch, continues to criticize county spending on legal fees and encourage residents to contribute to the GoFundMe.
“Based on the current activity, the County’s tab for the outside law firm is expected to reach or exceed $500K soon,” Roy said in her newsletter today (Tuesday). “The County is burning through our tax dollars during tight budget times.”
Another County Board candidate, Tenley Peterson, was originally a defendant in the case because of her role in recommending the Missing Middle changes as a member of the Arlington Planning Commission.
In an informal ARLnow poll, 56% of responders said they support this lawsuit and another suit against the Pentagon City Sector Plan, while 36% said they do not.
