Last week’s ruling that put Missing Middle zoning changes back on the books in Arlington presents a major setback for plaintiffs, experts say.
The determination in the Virginia Court of Appeals, which found last year’s circuit court ruling invalid for procedural reasons, could substantially set back the timeline for the case and require even more resources to support a privately funded lawsuit.
Plaintiffs are currently seeking to reverse the impacts of last Tuesday’s court decision.
If they’re unable to do so, however, they’ll find themselves having to redo the trial that took place last July, which ended in Circuit Court Judge David Schell overturning the Expanded Housing Option. Only this time, they might have to contend with far more defendants, Zach Williams, land use and zoning attorney at Venable LLP, told ARLnow.
This is because the appeals court ruled that all developers in the 45 previously approved EHO projects are “indispensable parties” that need the opportunity to be included in court proceedings.
“Everything becomes a lot more complicated,” Williams said. “It becomes more expensive. It becomes procedurally a lot more chaotic.”
Even if only a few of the developers opted to sign on as defendants, they could cause a lot of trouble for plaintiffs through additional filings and arguments.
“You can just imagine how that would create difficulty and add to a lot of expense — not just process-wise, but you could have different attorneys in different parties with different defenses,” Williams said. “You could have folks come up with different arguments that you have to deal with when you get to trial.”
That’s assuming, of course, that the most recent ruling is upheld. In an expedited motion for stay filed in the appeals court on Thursday, plaintiffs indicated plans to take all available steps to combat it.
The filing seeks to prevent Arlington County from approving any additional EHO projects until the case is resolved.
“Appellees intend to seek additional appellate review before this Court and if necessary, before the Supreme Court of Virginia,” plaintiffs wrote. “Unless this Court’s order is stayed, the County Board and developers will immediately start to remake Arlington County in ways that cannot be undone even if the trial court’s correct decision is reinstated.”
In addition to challenging the appeals court’s ruling on procedural grounds, they argued that EHO developers can’t be considered necessary parties to the case because it hinges on a locality’s legislative decision.
“In every similar case involving a challenge to a locality’s legislative act, the necessary parties have been the challenger and the local governing body, not every person conceivably affected by the outcome,” plaintiffs wrote.
One issue for this line of argument, in the view of real estate development lawyer William Barnes Lawson, is that Schell ordered developers to place a notice in land records warning future landholders about possible risks associated with purchasing an EHO property.
“In talking with some builders and land use lawyers, that action seemed to immediately make every builder with permits a necessary party, so that they can have input into how to word a notice, and what their status should be if the ordinance is void,” Lawson told ARLnow.
One of Williams’ biggest questions right now is how the county will handle EHO permitting in the coming weeks and months.
In a press release, the county indicated that it “will consider its next steps and how best to resume the EHO permitting process, including how to inform previous applicants who were either in the process or had their approved permits voided last fall.”
“I think the number one question is, is the county going to continue to administer the EHO program, given this result, or are they going to, sort of, maintain the status quo and wait and see what happens with these appeals?” Williams asked.
Both Williams and the anti-Missing Middle organization Neighbors for Neighborhoods, which fundraises for the lawsuit, stressed that the case is far from over.
“The homeowners seek an orderly disposition of this matter, with oral argument seeking to reverse the Court of Appeals order that the developer should have been allowed to intervene in the case,” Neighbors for Neighborhoods representative Dan Creedon told ARLnow. “If the homeowners prevail, the focus of the appeal will turn back to the merits of the trial court’s decision invalidating EHO.”
Assuming that plaintiffs continue to press forward with the lawsuit, Williams predicted that it will likely take “months, if not potentially years, before this is fully resolved.”
“A lot of people will probably believe that this is reversed, and the ordinance is good, and it’s back, and that’s the end of it — and it’s definitely not the end of it,” he said.
