Arguments about the way Arlington approved Missing Middle have taken center stage this week in the civil trial over last year’s hotly contested zoning amendments.
Testimony on behalf of the plaintiffs concluded yesterday (Wednesday) as attorneys continue to argue that Missing Middle zoning changes should be invalidated because they say the county improperly advertised the changes and failed to adequately study them, among other allegations.
Judge David Schell, who will make a judgment on the case in Arlington Circuit Court, heard from experts testifying that the county should have conducted more thorough research before approving the changes.
Engineer Steven Quinn testified yesterday that an influx of additional housing units could cause backups in neighboring properties’ sewer systems. The county, he said, “didn’t make any consideration whatsoever” of how Missing Middle, which allows for the development of up to six-unit multifamily homes on previously single-family only properties, might affect localized conditions in sewer lines.
“They completely ignored [possible impacts], at the peril of the existing residents,” he said.
A Monday press release from Neighbors for Neighborhoods, an anti-Missing Middle organization bankrolling the lawsuit, underscores the significance of this line of argument. Failure to conduct more extensive impact studies is one of six counts against the county in legal filings.
“Central to the plaintiffs’ complaint is Count III, which alleges that the county failed to conduct proper studies of the impact of increased density from EHO development on infrastructure, as required by Virginia law when zoning changes were made,” Neighbors for Neighborhoods said.
Real estate attorney Ked Whitmore, however, told ARLnow that he believes the trial’s outcome will probably hinge on technical matters, such as information included in legal advertisements.
The complaint filed last April alleges that legal notices about Missing Middle “failed to contain a descriptive summary, generate informed public participation, or allow citizens to reasonably determine if they were affected by the proposal.”
In May, the Virginia Court of Appeals declared the Pentagon City Sector Plan void ab initio because of a lawsuit that made a similar claim. The county proceeded to re-advertise hearings on the sector plan, which is scheduled to return to the Arlington County Board for a second vote.
It is “very unlikely,” in Whitmore’s view, that the court will rule in favor of plaintiffs on issues related to the substance of Missing Middle or how the county researched the change.
“It is very hard to go to the court and and to try to get them to overturn what is a legislative opinion by a local government,” he said. “I think it would be very difficult to say, ‘This was arbitrary. This didn’t rely on studies.’ You can disagree with a decision by a local government, but to have it declared void for a substantive rather than a procedural reason is very hard.”
This week, the plaintiffs’ case has survived one motion to have four of the six counts dismissed, and another motion to have the entire case dismissed over arguments about the plaintiffs’ legal standing. Schell did not reach a final ruling on the latter motion, but took it under advisement.
Dan Creedon, one of the founders of Neighbors for Neighborhoods, called these denials “a huge victory for Arlington residents.”
“The plaintiffs’ case shows that the County Board did not follow Virginia law in adopting its sweeping zoning changes,” he said. “And that is what this case is about.”
Earlier this week, plaintiffs secured another win after Schell ruled to allow testimony from the county’s retained expert on the Expanded Housing Option, Partners for Economic Solutions. Critics of Missing Middle accused the county of trying to hide facts about how PES conducted its study, as well as how PES reached an estimate of how many new properties Missing Middle would add each year.
“Why would the County want to keep its own consultant out of court?” opponent and former County Board candidate Natalie Roy asked in her EHO Watch newsletter today. “It might be PES admitting its supposed calculation about EHO’s impact came down to a ‘guess,’ and was ‘solely in its head.’ Or maybe it is because PES admitted it did not talk to any developers about EHO or attend the public forums as their contract stipulated.”
County spokesperson Ryan Hudson told ARLnow that Schell “initially ruled to not allow the testimony only because Arlington County did not have an opportunity to cross examine PES.”
“However, on Monday, the judge decided to make things equal for both parties by 1) admitting the plaintiff’s deposition with PES into the record, and 2) allowing the County to conduct its own deposition so it can adequately cross-examine PES,” he said.
Testimony for the defense began yesterday afternoon with Housing Arlington Coordinator Richard Tucker explaining the county’s rationale when conducting initial studies on Missing Middle. County staff’s intention, he said, was to explore ways to improve housing affordability and combat a trend of developers demolishing small single-family homes to replace them with larger, more expensive houses.
After the trial’s conclusion, Whitmore said it will probably take some time for the court to reach a decision — perhaps around a month, although he noted, “that’s really hard to say.”
No matter the outcome of the trial, he said an appeal is almost guaranteed, kicking off another lengthy legal process.
“It can take years,” Whitmore said. “I mean, it takes a very long time.”
This story has been updated with a comment from county spokesperson Ryan Hudson.
