Attorneys for residents contesting the new Missing Middle zoning ordinances and Arlington County squared off today (Tuesday) in court — but a decision will not be reached until at least next month.
Residents sued the county earlier this year, shortly after the Arlington County Board adopted the Missing Middle zoning ordinance changes authorizing 2-6 unit homes in areas previously zoned for single-family homes only.
They claimed the changes run afoul of state law on substantive and procedural grounds. The county disputes that and says the case ought to be dismissed because these residents will not be harmed — and are no more impacted than any other resident — by Missing Middle construction.
Gifford Hampshire, an attorney for the plaintiffs, argued the county made several missteps, including not commissioning studies to determine the impact of these changes; promulgating confusing ordinances; and failing to post online a document that the County Board was given ahead of the vote.
Documents should be provided to the public at the same time so “everyone is well informed and can participate meaningfully in the public process,” he said.
For Arlington County Attorney MinhChau Corr, the question at hand is not whether Expanded Housing Options, or EHOs, are a good idea. Rather, she told the court, the question is whether the County Board acted appropriately when it made its decision.
She said this case amounts to upset residents who disliked the decision, petitioning the court to overturn the decision. She said this tactic is a “subversion of our democratic process.”
After the arguments, retired Fairfax Judge David Schell informed those present he would render a decision on Oct. 19 at 10 a.m. He was appointed to handle the case after Arlington’s Circuit Court judges recused themselves, delaying the hearing process by a few months, the Gazette Leader previously reported.
Between now and next month, Schell said he will determine whether the plaintiffs have standing. This will determine whether he dismisses the case and will inform his judgment on the claims related to Freedom of Information laws.
Corr argued attempts to show the plaintiffs will suffer harm other residents will not face with EHO construction is speculative, saying “they don’t even know what [EHOs] look like.” Permits for EHO construction only recently started receiving approvals from the county.
Hampshire says the 10 plaintiffs own homes in neighborhoods where 2-6 unit homes would stress their water and sewer lines, overcrowd their schools and potentially increase their property assessments.
A few dozen people attended the arguments, including Dan Creedon, representing the Neighbors for Neighborhoods Litigation Fund, created to fund the lawsuit. He provided the following statement to ARLnow.
EHO/MMH zoning upends Arlington’s decades-old, successful land use policy to concentrate density along Metro corridors. The County Board eliminated single-family zoning in Arlington, allowing 6-plexes on single-family lots across the County, but failed to conduct the studies required by State law that would have revealed the impact of the increased density in residential neighborhoods.
Former Arlington County Board candidate Natalie Roy told ARLnow after the hearing that the county’s arguments “seemed to be based on an alternative universe.”
Last week, ARLnow reported that neighbors successfully dissuaded a developer from building a duplex in the Tara-Leeway Heights neighborhood.
Their concerns included traffic and parking challenges on the street, writing that the “proposed development will only exacerbate this, endangering residents, including the many children who live on the block.”
While the neighbors were able to leverage a restrictive deed covenant from 1938 to scuttle the duplex and convince the developer to build a single-family home instead, more duplexes are on the way following the Arlington County Board’s approval of the “Missing Middle” zoning changes earlier this year.
According to real estate agent Natalie Roy’s latest EHO Watch newsletter, one duplex has been approved under the new “Enhanced Housing Options” process, another is nearing approval, and two more were recently submitted for review.
Notwithstanding a successful legal challenge to Missing Middle — a lawsuit by a group of residents is set for a court date next week — Arlington residents are likely to see more duplexes, alongside 3-6 unit EHO projects, in the coming years.
Given that, we were wondering how ARLnow readers feel about duplexes specifically, given that they’re perhaps the most palatable to those otherwise skeptical of higher density projects. Yes, duplexes are now allowed countywide thanks to “Missing Middle,” but our poll questions asks if you are in support of that.
Do you think duplexes should be allowed to be built in most or all residential neighborhoods in Arlington — assuming that current EHO restrictions, including only being able construct the same size building as that allowed for single-family homes, remain in place?
Using a restrictive covenant in a 1938 deed, neighbors in the Tara-Leeway Heights neighborhood convinced a developer to build a single-family home instead of a duplex.
The home, 1313 N. Harrison Street, is not far from a wall that separated the historically Black neighborhood of Hall’s Hill from single-family-home subdivisions originally built exclusively for white people. In addition to specifying that only one home can be built on the lot, a second provision in the deed bars owners from selling to people who are not white.
This second provision came to light this week after ARLnow and Patch reported on the neighbors convincing the developer to back down from building a two-family home. A copy of the deed circulated on social media shortly after and ARLnow obtained a copy from Arlington County Land Records Division to confirm its authenticity.
While racially restrictive covenants were rendered unenforceable by a 1948 U.S. Supreme Court ruling and illegal by the Fair Housing Act of 1968, many homeowners never scrubbed them from their deeds, according to local researchers who are mapping racially restrictive covenants in Arlington. Thus, in some cases, they exist alongside separate covenants restricting multifamily construction.
Using the covenant against multifamily housing appears to be a valid workaround for neighbors and Arlington County says it has no legal role in how these covenants are used between private parties. The county began approving 2-6 unit homes in previously single-family-only neighborhoods two months ago, but this is the first instance ARLnow knows of where such a document was used in this way.
Their use, however, resituates one of the initial reasons Arlington County said it embarked on the housing policy changes in the first place: to right historical wrongs caused by racism. It provoked the ire of some Missing Middle advocates, including the Arlington branch of the NAACP, which is calling on the county to address the issue.
“The whites-only restriction can’t be disentangled from the one-house restriction; they were meant to work together, with the purpose and effect of excluding people of color,” said Wells Harrell, the chair of the housing committee of the NAACP, in a statement. “It is profoundly disappointing to see restrictive covenants from the Jim Crow era being invoked to block new housing and exclude families today.”
Several months ago, Arlington resident Stephanie Derrig identified these covenants as a way property owners could block Missing Middle-type housing from being built in their neighborhood.
She told ARLnow this week that she does not support the racist elements of restrictive covenants. At the same time, she sticks by her belief that a “restricted deed is a land use tool… to protect your largest investment, in many cases.”
YIMBYs of Northern Virginia leader Jane Green and Former Planning Commissioner Daniel Weir, both supportive of Missing Middle, take the view of the local NAACP that the two restrictions are part of one legal document, written with exclusionary intent.
Whether these provisions can be separated is a legal question — and a thorny one, at that, according to Venable land-use attorney Kedrick Whitmore.
When a court rules part of an agreement is unenforceable, the court does not rewrite the agreement to be legal, he said. This principle might affirm the initial view of the developer, BeaconCrest, which argued — before backing down and deciding to build a single-family home — that the document seems unenforceable.
On the other hand, courts do not want to remove other rights and obligations for which two parties negotiated. This means the court could uphold the rest of the agreement, giving credence to the arguments made by the neighbors.
“This is not exactly cut and dry,” Whitmore said. “You could make arguments either way. If you went to court, the stronger argument is for the non-racially restrictive elements to remain valid. But again, that’s a question.”
Last month, some neighbors told a developer they would “oppose any attempt to obtain permits” for a duplex in the Tara-Leeway Heights neighborhood, and the developer backed down.
McLean-based BeaconCrest Homes bought a single-family home at 1313 N. Harrison Street, an area residents have dubbed “Larchmont.” When it announced to neighbors its plans to build a duplex, a skirmish over the lot’s future — based on a provision in a deed from 1938 — ensued.
The tiff began in early August and ended with BeaconCrest agreeing to build a single-family home almost two weeks ago, according to correspondence between residents and the developer. The letters were published in an email newsletter authored by former Arlington County Board candidate Natalie Roy, tracking Missing Middle or “Expanded Housing Options” developments.
Two months ago, Arlington County began accepting applications for plans to build 2-6 unit homes where previously only single-family homes were allowed. Staff have approved five projects and 18 are under review, while the Larchmont neighbors fought BeaconCrest and some Alcova Heights residents are asking the county to reject some zoning changes associated with two EHO proposals.
On July 31, BeaconCrest bought 1313 N. Harrison Street for $950,000, according to Arlington County property records. In a letter dated Aug. 3, the developer told neighbors its plans despite an 85-year-old deed attached to the home saying “not more than one house shall be constructed upon the lot.”
Based on its analysis, the developer said it doubted this would be enforceable. Touting their previous experience going up against developers, neighbors disagreed, saying the law and Arlington County zoning code are on their side.
“As you may be aware, the Larchmont neighborhood has a history of successfully halting developers’ attempts to ignore similar existing deeds and covenants… e.g., 1320 Greenbrier and 1500 Harrison, among others,” the letter said.
They pointed to a provision in the county zoning code saying the more restrictive agreement, whether county code or existing agreements, controls what happens on a property.
Neighbors also accused the project of compounding unsafe traffic conditions on N. Harrison Street. They say drivers will slalom around parked vehicles on the narrow road to get between Washington and Langston Blvd.
“Your proposed development will only exacerbate this, endangering residents, including the many children who live on the block,” they said. “Adding multi-unit housing, which requires mandated space for on-street parking, will result in further traffic and safety issues.”
Street parking has been discontinued on some parts of N. Harrison Street for safety reasons, the letter says, noting other residents have asked the county for more parking restrictions to mitigate these traffic issues.
In her “EHO Watch” newsletter, Roy, who launched her campaign earlier this year opposing Missing Middle, called this a “win.”
“The takeaway from this win is that neighborhood covenants — where they exist and are germane — can be effective in promoting Arlington County’s stated Comprehensive Goals of having a diversity of densities while preserving existing neighborhoods,” she wrote.
“The other key point is it takes considerable volunteer time, energy, and organizing prowess by neighbors, to not only be vigilant but to act fast,” she continued.
Missing Middle advocates, including the leaders of pro-housing group YIMBYs of Northern Virginia, are celebrating their own wins, however. Jane Green recently lauded newly approved plans to turn a dilapidated carriage house within walking distance of the Ballston Metro station into a 6-plex.
An old real estate listing for the property she found had touted that the new owner could build a 5-bedroom, 4-bathroom custom-built home and convert the existing carriage house into a 1-bedroom, 1-bathroom accessory dwelling unit.
Here is #MissingMiddle in action 🧵: This home + carriage house sold in 1987 for $178,900. It is now in very rough shape. It is also half a mile from the Ballston Metro (4611 Carlin Springs Rd). https://t.co/bo2Meu5AZK pic.twitter.com/wZkjwckFnc
— Jane Fiegen Green (@janefgreen) August 29, 2023
Arlington didn’t start the ‘Missing Middle’ fire — localities across the country and around the world have been trying to figure out how to deal with rapidly rising housing costs.
While Arlington’s approval of new zoning regulations allowing small-scale multifamily housing in previously single-family-detached only neighborhoods was not the first time a major jurisdiction made such a move, the underlying debate is still raging in certain pockets of cyberspace.
ARLnow’s comment section aside, one place where the fire is still burning is on Twitter. (The social network was recently renamed “X” in a bid to incorporate additional features, arguably making it the National Landing of tech companies.)
On Twitter, a persistent anonymous account named Arlington Transparency has been posting side-by-side images of older homes set to be redeveloped as Missing Middle housing, next to speculation about how much those new units may cost given the price of existing, similar homes in the area.
In each case, the detached home set for demolition is less expensive than a newer townhouse or other multifamily home.
#MissingMiddle Permit pending — "affordable" housing to "⬇️housing costs": SFH for $710k. To be a 3plex. McMiddles sold nearby for >$1 million EACH. pic.twitter.com/QK1BNemxSR
— Arlington Transparency (@ArlTransparency) July 17, 2023
#MissingMiddle permit #31 — "affordable" housing to "⬇️housing costs": 58-yr family property sold in S Arl in 2023 for $678k; to be duplex. McMiddles sell nearby for nearly $1million EACH pic.twitter.com/vdeVM27kX0
— Arlington Transparency (@ArlTransparency) July 25, 2023
On the other side of the debate are local housing advocates like Jane Green, who point out that, yes, the resulting Missing Middle homes will likely be more expensive than the tear-down that’s being replaced, but they’re much less expensive than the “McMansions” that would otherwise be going up.
Plus, the more affordable homes being replaced would need “significant work” to be viable for buyers seeking to live there.
I don't understand how accounts here can disparage Missing Middle zoning reform in defense of the vanishingly few lower priced, fixer-upper detached homes, while ignoring the fact that most of them will become $2+million McMansions. pic.twitter.com/hv4wB668JH
— Jane Fiegen Green (@janefgreen) July 18, 2023
There is an account on here that keeps tweeting pictures of older, smaller SFHs (still going for ~$800k) that are never resold as they are (always knocked down to build $2M homes) and they are upset that there may be two or more new ones coming (for~ $1M instead) 🤷🏻♀️
— Lidija Sekaric (@lidija_sekaric) July 18, 2023
Unsurprisingly for Twitter, there’s a counter argument to the counter argument: that $900k+ townhouses benefit “elites” and not buyers in need of greater affordability.
Pro-#MissingMiddle truth comes out: it’s all about new $1,490,000.00 “attainable housing” for elites by tearing down homes far more affordable for more diverse buyers. Didn’t see that on the “won’t u b my neighbor” flyers & signs 🧐 https://t.co/tNwDgh2Owm
— Arlington Transparency (@ArlTransparency) July 18, 2023
Given the arguments above, who’s got the winning team, in your view? (With apologies to those who feel that this debate has been burning since the world’s been turning.)
In a new twist, the now-razed Broyhill estate in the Donaldson Run neighborhood is again on the market, billed as a development opportunity for anywhere between six and 36 homes.
Less than a year after its last sale, for $2.55 million, the estate near the Washington Golf and Country Club is once more on the market — this time as a 1.43-acre vacant lot, coming in at a cool $10 million asking price.
The agent, Leesburg-based Serafin Real Estate, says in a listing it “is pleased to present what is perhaps the single largest land offering to come available in Northern Virginia’s most desirable North Arlington (22207) within the last two decades.”
A brochure notes this property is ready for “streamline development” with up to six single-family residences — the way of the Febrey-Lothrop estate — or up to 36 Expanded Housing Option housing units, across two parcels, 11,145 square feet and 51,062 square feet in size.
Neither the agent nor the owners responded to a request for comment.
A video tour of the property at 2561 N. Vermont Street shows that construction fencing remains, as do some remnants of the former 10-bedroom home: brick steps, a wrought iron gate, and a small building corner.
It’s a far cry from the home husband-and-wife duo Mustaq Hamza and Amanda Maldonado told ARLnow they would build after buying the property earlier this year.
Shortly into demolition, they were fending off at least one vigilante preservationist who nicked pieces of the home on his way out. They also had had sharp words for neighbors they said alleged the duo would take advantage of the freshly-passed Missing Middle zoning code updates.
“They don’t believe two minorities can buy a lot for $2.5 million and build another single family house,” Maldonado said at the time. “They believe we’re going to flip it and build a bunch of condos.”
Donaldson Run Civic Association President Bill Richardson says a lingering concern for neighbors is how much of the property will be covered with an impervious surface, with elements such as a house or a driveway.
“Members are very concerned about that, generally, and as it relates to this property,” he said. “It applies whether it’s [developed with] single-family or Missing Middle… Nobody really knows. it’s being marketed for either purpose.”
(Updated at 4:05 p.m.) Eight permit applications for Missing Middle housing proposals have been accepted by Arlington County since Saturday, the first day for such filings.
Another seven are at various stages of completion, marked “application complete” or “awaiting plans and documents,” according to permit records, as of Wednesday afternoon.
There are several other placeholder permits — those that people have started but not yet finished.
Some were at the ready on Day 1 of the Missing Middle — also called Expanded Housing Options — permitting process. Nine permits were filed on July 1, while another two each have come in on Sunday, Monday and yesterday, per the records.
The homes proposed for redevelopment are typically concentrated in or near Metro areas, such as East Falls Church, Ballston, Virginia Square, Clarendon and Pentagon City, per the addresses associated with each permit.
So far, all eight accepted applications are located in R-5 and R-6 zoning districts, or those with 5,000 to 6,000-square-foot lots, respectively, Arlington County Dept. of Community Planning, Housing and Development spokeswoman Erika Moore said.
Specifically, three are in R-5 and five are in R-6 districts, according to the county. This means only four more permits can be issued for homes in R-5 districts this calendar year, as the county capped the permits for this zoning district at seven annually. Meanwhile, 30 total permits can be issued for R-6 districts in one year.
Another 21 permits are allowed annually across zones with 8, 10 or 20,000-square-foot lots (R-8, R-10 or R-20). None have been issued in these districts yet.
One-third of the permit applications so far are for 3-unit townhouses. Duplexes and six-plexes each comprise roughly one-quarter and the remaining two are quad-plexes.
As for off-street parking, five have one parking space per unit, four have more than one space per unit and six have less than one space per unit. Earlier this year, critics predicted (and some incorporated this into a lawsuit) that lower parking minimums — and thus greater reliance on on-street parking — would clog narrow streets.
Arlington County has launched a web page with information about applying for an EHO permit, in addition to a page tracking these developments. The tracker includes the address and zoning district for each property, the number of units proposed, the permit number and submission date, among other information.
“The County has committed to tracking EHO permit submissions and approvals so both potential applicants and interested community members can see how many EHO projects are proposed — and where they are located,” per an Arlington County email newsletter.
“Work is underway on connecting permitting system data to the County’s Open Data Portal to create a user-friendly dashboard. Until that tool is available, County staff will post weekly updates on applications and their status online,” the email continued. “Tracking will begin on Friday, July 7.”
The tracker was updated almost two days early, on Wednesday evening.
Currently, the EHO permits issued do not authorize construction, according to the webpage. A separate county staff review is needed before builders can start construction.
There is no fee associated with this permit though one may be proposed next year.
The county recently published a how-to video, below, demonstrating the application process.
Arlington County has filed a response to the Missing Middle lawsuit against it.
Ten residents are suing the county, arguing that the recently-passed zoning changes known as Missing Middle were approved illegally and would allow development that harms their lives.
In a response shared with ARLnow, dated last Tuesday, May 23, the county argues that the plaintiffs did not prove they, in particular, will be harmed by any new development. It also disputes the claims that the county broke specific provisions in Virginia law related to zoning deliberations and meeting procedures.
Now that both sides have made their cases in writing, a hearing in the civil division of Arlington County Circuit Court is set for July 11 at 10 a.m. In other recent zoning battles in Virginia courts, the lower courts ruled in favor of the county government, while the state Supreme Court overturned those decisions.
The complaint against the county was filed in April, about a month after the Arlington County Board ratified zoning changes that allow the construction of 2-6 unit homes on lots previously zoned for single-family homes.
The plaintiffs complained their property values will be hurt and their quality of life diminished by any new “Expanded Housing Option” or EHO development.
They also said the Arlington County Board failed to properly advertise what was being considered and did not do the due diligence needed to understand the impact of increased density on the neighborhood level.
Arlington County is challenging the legitimacy of the lawsuit, asking the court to rule that the facts of the Missing Middle saga invalidate the claims and dismiss the case so it cannot come before the court again.
On substantive grounds, the county challenges the 10 residents, saying they failed to show the zoning changes will burden them such that the county must provide relief.
For instance, the plaintiffs predicted several negative impacts as a result of the change: increased flooding, sewage backups, school overcrowding and difficulty driving on narrow streets cramped with cars parked on the street. Arlington County says that is speculative at best.
“No property has been developed under the terms of the Zoning Amendment, and any allegations of harm are pure speculation,” the county said in its lawsuit. “The court cannot be asked to issue an advisory opinion based on hypothetical facts.”
The 10 residents also say the Arlington County Board did not consider a long list of societal impacts of which state code requires consideration prior to zoning code changes.
Just because it did not conduct the “special studies or investigations” the plaintiffs claimed were necessary does not mean the factors were not considered at all, Arlington County argues.
“The Board Report, the testimony of the County’s professional staff, and the testimony of the members of the County’s Planning Commission, Housing Commission, Transportation Commission and other advisory commissions and public speakers shows that the County Board adequately considered the factors in [state code],” the suit says.
The plaintiffs also claim the county exceeded its authority when it instituted tree canopy requirements tied to the number of units on a property. They said it violates the Dillon Rule to require more than what is required in the Chesapeake Bay Preservation Ordinance.
Arlington County sees it differently.
“The county amended its zoning ordinance to create an incentive for tree plantings in exchange for increased density, as permitted through its power to administer incentive zoning,” it says.
The specter of Missing Middle haunts the slate of candidates for Arlington County Board.
Two months ago, the County Board allowed the by-right construction of 2-6 unit buildings on lots previously zoned for single-family homes.
Prior to voting for the changes, Board Chair Christian Dorsey and member Katie Cristol announced that they would not be seeking reelection. Those vying to replace them vary widely in their stances on Missing Middle, though a forum last week hosted by Arlington County Democratic Committee revealed areas of common ground.
Some Democrat hopefuls opined about how the process leading up to the zoning changes divided the community and revealed how renters are underrepresented in civic life. Mostly, the candidates suggested that they are focused on life after Missing Middle and supporting other policies to help people afford to live in Arlington.
“We don’t get a do-over. There is no do-over, there is only a do-next,” said policy analyst Maureen Coffey. “We need to learn from this process, what went wrong — never repeat that ever again — and move forward, bringing everyone to the table to talk about how this is going to play out and what we need to solve our housing and larger issues.”
All of the candidates agreed the county will need to analyze data before deciding on next steps.
“Monitoring closely is going to be really important — especially monitoring on elements of diversity and affordability,” said Susan Cunningham, who has run for County Board before as an independent and criticized the zoning changes.
Cunningham suggested modifying rules for accessory dwelling units and for lot coverage, which could curb the development of large homes oft-derided as “McMansions.”
“My biggest problem with Missing Middle was not just the process but the fact that we did not do a comprehensive look at housing,” Cunningham said. “Housing is complicated and housing this whole community in its diversity and amazingness is also complicated, and we oversimplified that in my opinion.”
To that end, another candidate opposed to the changes, real estate agent Natalie Roy, detailed her views on housing in a three-part plan. It includes implementing a proposal from the Arlington branch of the NAACP to prevent the displacement of low-income residents.
Roy said the county should provide a public dashboard showing where and what kind of permits are issued, as well as the selling price for completed units. Arlington County has already committed to publishing this data once it becomes available.
Missing Middle supporter Jonathan Dromgoole said he too is watching where the units are built. Next, he said, the county should focus on shoring up the dwindling supply of relatively inexpensive, market-rate units. This is something Arlington County is already looking at as these units are continuously lost to redevelopment and rehabilitation.
Former NAACP Arlington Branch president Julius “J.D.” Spain, Sr. said he is thinking farther outside the box.
The lawsuit filed in Arlington County Circuit Court last week against Missing Middle housing comes at a conspicuous time for land-use litigation.
Shortly after the County Board approved 2-6 unit buildings in heretofore single-family home zoning districts, the Virginia Supreme Court overruled a zoning overhaul in Fairfax County on procedural grounds in Berry v. Board of Supervisors of Fairfax County.
The decision demonstrates the courts are watching local governing bodies for procedural violations in its policy-making. People following Berry say this decision was somewhat unusual and could give the Arlington plaintiffs stronger footing — though a victory is far from guaranteed.
When the Fairfax County Board of Supervisors approved the changes in March 2021, local governments operating under Covid-era emergency rules could only take action on time-sensitive matters — such as the budget — in virtual meetings, explains Megan Rhyne, Executive Director of the Virginia Coalition of Open Government.
Three months after the decision was approved, state laws were expanded to allow local public bodies to discuss or vote on topics, like zoning, virtually. But the Virginia Supreme Court forced Fairfax to revert to an older zoning code because of this procedural misstep prior to the new laws taking effect.
The 10 plaintiffs in the Missing Middle suit say it is a point in their favor, arguing the state Supreme Court signaled it takes seriously procedural violations.
The suit alleges six ways the decision violated state law, including some procedural errors regarding how the meetings were conducted and how the policies under consideration were poorly explained and distributed. Additionally, the plaintiffs allege one instance where rights under the Freedom of Information Act were violated.
“These are hard cases to win. They’re not often won but we just had one that was a big surprise to a lot of people,” says Kedrick Whitmore, a land-use attorney with Venable, who has represented developers on numerous Arlington projects but is not involved in the Missing Middle suit. “Maybe it’s not as open and shut as you would normally see for challenges.”
Despite the possibly far-reaching consequences of Berry, it seems to have only slowed down Fairfax. The county is already restarting the process to overhaul its zoning code.
A common blueprint
State law says zoning codes serve a variety of purposes, including to reduce congestion, provide for public safety and ensure that natural lands are preserved. The law says officials only have to “give reasonable consideration” to these and other purposes, however.
In practice, this kind of standard can make it difficult for plaintiffs to allege a locality made substantive missteps. Thus, plaintiffs suing over an unpopular decision may find more success alleging procedural and FOIA violations, according to Whitmore and Rhyne.
“Local governments in Virginia are afforded extraordinary deference by the courts and legislation,” Whitmore said. “That makes the substantive road difficult and that’s why procedural might be most effective.”
Rhyne agrees, particularly as it relates to Freedom of Information Act allegations.
“It’s not unusual for a FOIA meeting violation to be alleged after an unpopular decision. Sometimes it’s true — sometimes it has been a violation — but sometimes it hasn’t,” she said.
“While it’s common to take that route, it’s uncommon for it to undo anything,” she continued, making Berry a “super rare” decision.
In the Arlington lawsuit, the plaintiffs allege the county did not post online all the meeting materials that the Planning Commission and Arlington County Board had access to, including a method Board Chair Christian Dorsey would later introduce, which the Board approved, for temporarily apportioning permits based on zoning district.
But the bar for public access requirements under FOIA is fairly low, according to Rhyne. Governments meet the provision if the public is given materials at the same time members of the government receive them, she said.
“If everybody is getting it at the same time, in-person, it’s not useful but it met FOIA,” Rhyne said. “FOIA doesn’t require meaningful time to digest what’s been given.”
This is a finer point than in Berry, which ruled for the plaintiffs because the March 2021 vote occurred when the law did not allow such decisions to be made using virtual-only meetings. This could limit how much Berry applies in Arlington, Rhyne said.
The plaintiffs, however, take a broader view of the principles at stake in Berry.
“Literally the day after the Board enacted densification and changes that are the focus of this suit, the Court reaffirmed the importance of statutory guardrails by invalidating Fairfax County’s zoning overhaul on procedural grounds,” the suit says. “In so doing, the Court affirmed that compliance with Virginia Code’s procedural requirements is not optional.”
The plaintiffs have made no statements about the case and did not wish to comment for this article, an attorney for them told ARLnow. Outreach about the case has been conducted by an LLC formed by residents, “Arlington Neighbors for Neighborhoods,” in the form of a press release last week. The LLC is also raising money to fund the litigation.
Can the plaintiffs even sue?
The first tack Arlington County will take will be to argue the harms these plaintiffs claim they face are not specific to them and thus they do not have “standing” to file a suit, according to Whitmore.
“You could argue that this affects everyone in Arlington County,” he said. “What standing does is it requires plaintiffs to show they have particularized harm.”
The county told ARLnow it cannot comment on ongoing litigation, but it has taken this general approach before, when it sued some residents and the Ballston-Virginia Square Association. The county petitioned the court to find the residents would not experience particular harm from a decision to temporarily park Arlington Transit buses nearby.
Another recent state Supreme Court decision indicates this is not a slam-dunk strategy for municipalities, though. The Virginia Supreme Court in February overturned a lower court ruling that found residents suing Hanover County over a Wegmans distribution center built in their historically Black neighborhood did not have standing.
A judge wrote that “standing determines who may file a lawsuit — not who can win one. Winning and losing depends on judicial fact-finding and discretion,” a local TV station reported.
Here, Whitmore says the plaintiffs have made efforts to show “they have been or will be harmed in some different particular fashion differently than the ‘every man’ of Arlington.”
All 10 plaintiffs say they will be hurt by higher tax assessments. Each argued how many of the general criticisms levied during the public process — from crowded streets to higher flood risks — represent unique harms for them.
One of the plaintiffs is Marcia Nordgren, who was active in anti-Missing Middle discourse on Nextdoor and published a letter to the editor in the Gazette Leader lambasting the Board and previewing some of the grievances in the lawsuit.
The suit says Nordgren’s neighbor can build Missing Middle homes by-right and she cannot challenge it because the property is under one acre. Others in her neighborhood can challenge developments near them because they need special permits to build such structures on their properties larger than one acre.
Margaret Fibel, who urged the County Board in March to update its infrastructure capacity before making the zoning changes, says Missing Middle development in her neighborhood would result in more street parking and congestion than in other places.
In her area, close to two Metro stations, developers will not have to provide as much on-site parking, meaning her already-crowded street will see even more street parking, she says.
The suit says the following about their plight and that of the eight others.
By singling out these Residential Districts without providing for adequate infrastructure and neighborhood-specific development, the Residents will suffer a particularized harm not applicable to the public generally in the form of increased traffic and parking, intensified stormwater runoff and sanitary sewer use and volume leading to flooding and sanitary sewer backups, tree canopy diminution, and prohibitively expensive tax assessment increases.
Zoning change proponents react
ARLnow previously reported the statements issued by two groups opposed to the zoning changes, Arlingtonians for Our Sustainable Future and Arlingtonians for Upzoning Transparency, on Friday. They both said they were not involved but watching the proceedings closely.
Afterward, proponents of the change disputed the idea that the county confused residents in its communications.
“This lawsuit claims improper notification and that people were confused, didn’t know what was going on,” said Missing Middle supporter Pastor Ashley Goff in a tweet. “Housing advocates knew EXACTLY what was going on which is why we pushed so hard for the change. Zero confusion on our end.”
Meanwhile, Grace White, Arlington Vice President of the pro-housing group YIMBYs of NOVA, told ARLnow this week that the organization is not fazed by the suit.
Missing Middle is an important yet incremental change that was approved unanimously by the county board after years of study, public comment, and deliberation. YIMBYs of NOVA is concerned at the moment with building on the policy to ensure better housing options for all Arlingtonians. We invite opponents of Missing Middle to join us in spending their efforts advocating for solutions, rather than challenging the validity of a duly enacted law in court.
(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.”
