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.

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Thomas Peters and his wife Natalie found the perfect home in Arlington — one that already had an elevator that Thomas would need to get around in his wheelchair.

It did have one downside, however. The trees on his neighbor’s property, which is at a higher elevation, block natural light from reaching his backyard.

That poses a problem for Peters, whose spinal cord injury — sustained while swimming 10 years ago — left him paralyzed and made it harder for his body to regulate his temperature and stay healthy. The need for accessible sunlight became obvious during the pandemic when he was stuck in his apartment.

“UV light is the best disinfectant and it is hard to get in the wintertime,” he said. “I knew I wanted a place where I could live in the sunlight.”

So Peters commissioned an architect to draft plans for a sunroom. Before those could be realized, however, he learned he would have to get special permission to build it because the home already exceeds the allowable size for a main building on a 10,000-square-foot lot, according to the zoning code.

The last 15 months became a winding legal process that frustrated Peters at times.

“My journey of living with a disability has been one of losing lots of agency,” he said. “I’m a very go-getter type of guy. One of the most frustrating things about living with a handicap is that there are things you just can’t overcome. It’s especially frustrating when you can’t overcome things in your own home after pursuing the dream of independent living.”

Last Wednesday, however, his vision for the property eventually prevailed. He he got the go-ahead for the sunroom when the Board of Zoning Appeals (BZA) unanimously greenlit a variance for the site. The citizen commission considered not just local zoning ordinances but also the Americans with Disabilities Act and ultimately acted against a recommendation by county staff to deny his request.

ARLnow reached out to some of the five BZA members but did not hear back before deadline.

Barnes Lawson, the lawyer for Peters, said last week’s decision was a rare one that resolved a cordial disagreement with the county over what constitutes a reasonable accommodation for a disability.

“Zoning Division staff does not believe that the applicants have proven an explicit connection between the requested size of the proposed improvements and their ability to remedy a hardship, as they have not shown that the benefits provided by the proposed conservatory could not also be provided elsewhere in the dwelling,” according to a county report.

In a county report, staff emphasized that the Peters home already exceeds the maximum lot coverage allowable for a main building on a lot of its size. The county offered Peters two paths forward that would not require a variance.

He could build a front porch of at least 60 square feet and earn the right to extend the footprint of his house by 3%. The zoning code encourages the construction of front porches — and, as another example, discourages garages near the front of the house — as a way to promote neighborly interactions.

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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 12 p.m.) A lone, aging single-family detached home surrounded by townhouses and apartments and close to the Ballston Metro station could be redeveloped to house two families.

If the home at 1129 N. Utah Street were in any of Arlington County’s lowest-density zoning districts, the project could be done by-right — in other words, without seeking special permission beyond standard construction-related permits — starting this summer as part of the “Missing Middle” zoning changes.

Last month, the Arlington County Board unanimously approved the changes allowing the by-right construction of 2-6 unit dwellings, also dubbed “Expanded Housing Options,” in Arlington’s neighborhoods previously zoned only for single-family homes.

But D.C. area developer BeaconCrest Homes is not building in one of these residential zones, and the project instead has to go through the more time-consuming and expensive site plan review process. It’s somewhat ironic given that the zoning of the transit-accessible Utah Street property was intended to be more permissive than the lower-density residential zones now approved for Missing Middle.

“It’s kind of a funny thing: After all the effort put into Missing Middle — that only impacts R zones,” project representative Robby Malm tells ARLnow, musing that the county could have could have incorporated the by-right flexibility afforded by the changes in townhouse districts.

The home is located in a “Townhouse Dwelling District” (R15-30T). This district encourages townhouses as a transition between tall apartment and commercial buildings within Metro areas and neighborhoods with single-family detached housing. Anything beyond a single-family detached home, however, requires a county-approved special exception site plan.

“This aspect of the R15-30T district isn’t really a quirk; rather it’s the express permissions of the district, which was intended to allow townhouse developments in Metro Transit Corridors and on properties with ‘low’ residential and ‘low-medium’ residential General Land Use Plan designations,” Dept. of Community, Planning, Housing and Development spokeswoman Elise Cleva tells ARLnow.

Since districts such as this one already allow Missing Middle housing forms (albeit not by-right) and regulate their height, setbacks and other characteristics, they were not studied as part of the zoning code updates, says Cleva.

Malm says he met with county staff and they have been helpful during the process but he feels he did not get a clear reason why townhouses and semi-detached duplexes cannot be built by-right in townhouse districts.

“They politely shrugged their shoulders and said, ‘That’s the way the code is written,'” he said. “They couldn’t give us a rationale as to why the code was written that way.”

Typically, Cleva says, R15-30T properties were rezoned from a lower-density zoning district and then associated with a site plan to allow for the townhouses to form a transition.

“As County planners analyze the site plan application for 1129 N. Utah St., they’ll learn more about the history of that parcel,” she wrote.

Malm said his firm deliberated building a single-family detached home but decided the additional time, cost and uncertainty involved in a site plan process to build a side-by-side duplex is “what the property deserves, given where it is located and its proximity to everything Ballston has to offer.”

He says he hopes for a speedy process.

“Because of where it’s located and the feedback we’ve received, we don’t foresee a lot of pushback,” he said.

While last week‘s landmark zoning decision legalized 2-6 unit homes throughout Arlington’s lowest-density neighborhoods, about 136 properties will be ineligible for such projects.

The exemption applies to certain 5,000-6,000 square-foot lots — the county’s smallest standardized residential lot size, dubbed R-5 and R-6, respectively — located near transit and within planning districts in East Falls Church, Cherrydale and Columbia Pike.

In the nearly 150-page long report on the zoning ordinance changes, Arlington County says the three properties in East Falls Church, 49 properties in Cherrydale and 82 near the Pike could be assembled with other properties that previous planning efforts have identified for redevelopment.

“Within these planning districts, there are locations where reinvestment has not yet occurred and assembly of the R-5 and R-6 zoned parcels with parcels along the corridor frontage could realize identified plan goals for the revitalization district,” per the county report outlining the approved Missing Middle zoning changes.

Assembling these properties with nearby lots could allow developers to realize the vision for these corridors, the report says.

This includes “mixed use development, improvements to the public realm, walkability, increased housing supply, housing affordability, and creation of coordinated buffer or transition zones to lower density residential areas,” the county says.

In East Falls Church, transit-oriented development near the Metro station has languished and many planning goals from a 2011 East Falls Church Area Plan remain unrealized. While there are some new townhouses within walking distance, an empty parking lot and a standalone parking garage are two examples of “prime real estate” awaiting redevelopment.

This includes two single-family homes — across the street from the “Kiss and Ride” lot — identified for potential redevelopment in the 2011 plan, which faced strong opposition from some who said it encouraged too much development, despite the proximity to a Metro station.

The other exempted property, though zoned as residential, is home to a telecommunications building owned by Verizon and a parking lot. The back of this surface parking lot is across the street from the East Falls Church Metro station; some commuters use it to cut through the block north of the station, per the 2011 plan.

“The Verizon building is anticipated to remain in use for the foreseeable future,” the 2011 plan notes. “However the rear portion of the lot, which is a largely unused parking lot, has potential for redevelopment.”

The plan envisions townhouses or low-rise multifamily development of three to four stories. Verizon did not return a request for comment about plans for the site.

Such development “should accommodate a dedicated pedestrian path through the entire site from Lee Highway to Washington Boulevard that would formalize this vital connection,” the plan says.

If the Virginia Dept. of Transportation and WMATA move forward with plans to redevelop a commuter lot across the street, the connection could also get a new signalized crossing between the — potentially — redeveloped lots. Around this time last year, neither agency indicated progress toward redeveloping the site, citing barriers such as restrictive zoning.

At the time, a county planner told ARLnow that without higher building heights, there may not be much of an incentive to build.

“Those costs are real,” Natasha Alfonso said. “There has to be enough density to justify that kind of improvement on those sites. If the community wants walkable, transit-oriented development, those are things we have to consider.”

Another 82 properties are located within the Columbia Pike Special Revitalization District, including some along 12th Street S., a few blocks south of the Pike.

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(Updated at 11:10 a.m.) Last night, the Arlington County Board took a landmark step to allow the by-right development of 2-6 unit buildings throughout the county.

After the unanimous vote around 6:45 p.m., and additional statements by Board members, the room erupted in cheers from supporters, who shook hands and hugged and high-fived each other. There were, reportedly, a few teary eyes.

A slow trickle of opponents left the room as the meeting wore on, but many remained, swapping their yellow signs against upzoning for blue headstones mourning the burial of the “Arlington Way,” the name for the pathways citizens have for influencing policy-making.

Talk of a policy change like this dates back a decade and, for some Board members, was tied to tearful remembrances of conversations with the late County Board member, Erik Gutshall. After Amazon agreed to come to Arlington, the conversation picked up steam.

Arlington’s first step to increase housing stock was to allow accessory dwelling units. Its second step last night culminated more than two years of study that saw the proposal rebranded and modified to respond to some community concerns such as parking, tree canopy, and the pace of development.

There was lots of celebration on Twitter for the changes, which will go into effect on July 1 of this year.

Thank you @Matt4Arlington @TakisKarantonis @kcristol @libbygarvey @CD4arlington for moving @ArlingtonVA forward! This teacher appreciates this historic moment of righting historical wrongs. #MissingMiddle l pic.twitter.com/XwKErcPNI2

— #TiredTeacher (@pondfamily) March 22, 2023

tonight Arlington passed one of the most progressive zoning reforms in the nation—due in large part to the work of @NAACPArlington, @VOICEVirginia, @TheGattoniCelli and @janefgreen’s YIMBYs of NoVA and many others 👏 https://t.co/ZwWDaukIxk

— dan reed 🦀🏳️‍🌈👋🏾 (@justupthepike) March 22, 2023

Arlington’s County Board deserves credit for carrying a version of Missing Middle across the finish line.

A ton of that credit should also go to Jane and the NoVA YIMBYs, who organized an entire progressive housing movement from the ground-up. It’s a gargantuan accomplishment. https://t.co/1EvB8RSXpP

— Kevin Saucedo-Broach (@KSBforVA) March 22, 2023

A theme in the speeches County Board members made last night was that change is already here and county leaders have to respond to make sure the real estate market works for more people who want to live in Arlington.

In a statement from the advocacy group Virginians Organized for Interfaith Community Engagement (VOICE), member Pat Findikoglu echoed this sentiment, noting that the county is already changing, with larger, more expensive single-family homes replacing more modest homes.

“Change in the housing market is inevitable,” she said. “How we shape it to meet new needs and still remain livable is the challenge. VOICE believes this Expanded Housing Options proposal does that.”

Board members made a few more compromises, removing a clause that would allow for fewer parking for homes close to certain bus networks, plus approving a five-year cap of 58 units per year and a method of dispersing allowable units by zoning district.

YIMBYs of Northern Virginia co-founder Jane Fiegen Green accepted these limitations on social media but still heralded the decision as a win. She said the limitations could result in “less housing than otherwise.”

“Our organization is concerned that limitations imposed on the policy will yield fewer homes, without any practical or political benefit,” YIMBYs of Northern Virginia said in a statement. “Yet beyond the zoning changes that will help end racial segregation in the County and bring forth more housing, the Missing Middle campaign has shown our neighbors that restrictions on density and growth damage their community’s ability to be welcoming, inclusive and forward-looking.”

One group opposed to the plan did not acknowledge the concessions in its colorful post-mortem.

“This County Board has plopped a half-baked cake on the table that Arlington residents must now eat,” said Arlingtonians for Our Sustainable Future’s Peter Rousselot. “Arlington County is flying blind on Missing Middle, but it’s Arlington residents who now are headed for a crash landing.”

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Today, Wednesday, could be the day that the Arlington County Board allows the by-right construction of 2-6 unit homes in the county’s lowest density neighborhoods.

The scheduled vote on proposed zoning amendments, known by the shorthand Missing Middle or Expanded Housing Options, would culminate nearly a year of intense discussion since a draft was published in May and updated in November, and before that, more than a year of study and public engagement.

Ahead of the Board’s vote, more than 250 people signed up to urge the Board to move forward with the most expansive options, build more consensus by making a few tweaks, or reject the proposal altogether. The long list of speakers led the County Board to dedicate its regular meeting Saturday and carryover meeting Tuesday to hearing public comment, pushing the vote to today.

On Saturday, about 200 people spoke during the marathon meeting that went from around 8:30 a.m. to just before 6 p.m.

Of the 204 speakers who took the podium on Saturday, some 57% were in favor of the zoning changes, according to a spokesman for YIMBYs of Northern Virginia, an advocacy group supporting the change. At the conclusion of Tuesday night, 226 people had spoken across the two days of hearings, of whom nearly 54% were in favor.

About 50 speakers in support outnumbered about 20 opponents during Planning Commission hearings earlier this month, per commissioner Daniel Weir.

Representatives from the Planning, Transportation and Housing commissions, as well as the Disability Advisory Commission, all voiced strong support for the proposal. By another metric, more than 6,000 people have signed a petition against the proposal as of Tuesday night.

On Saturday, a number of renters and homeowners shared their personal stories of saving — or trying to save– enough money to buy a home in Arlington to underscore the stakes of the changes.

Proponents said more people would have the option to stay in Arlington with Missing Middle housing allowed throughout the county. Opponents disputed how helpful it would be, with some predicting surging property values should the zoning changes be approved. Other opponents predicted the dwellings would deflate property values and jeopardize their long-term investments.

Through an interpreter, Héctor Herrera urged the Board to allow Missing Middle to give Hispanic residents more home-buying opportunities. He and his wife tried twice, unsuccessfully, to buy in 2010 and then in 2016, while working two jobs and even with the help of their adult children.

“Since I came to the U.S. — and I thank God for this wonderful country — I have worked this whole time in the construction industry in Arlington,” Herrera said. “I’ve seen how much it costs to build a house that costs more than $1 million. My community that represents 20% of Arlington cannot buy a house.”

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(Updated 11:45 a.m.) Arlington’s Planning Commission voted 8-0 to recommend the Arlington County Board adopt the most flexible option of the proposed zoning changes, known as “Missing Middle.”

Commissioners Denyse “Nia” Bagley and Leonardo Sarli abstained during last night’s vote. Next, the ordinance to allow the by-right development of 2-6-unit buildings on lots currently zoned for single-family homes is slated to go before the Arlington County Board on Saturday, March 18.

“This has been a multiyear process,” said Planning Commission Chair Devanshi Patel. “It hasn’t been just December to March. Staff has labored on this for many, many, many years, and many, many, many hundreds of hours have been put into this process — including lots of hours by this commission itself.”

The county says this will help counteract the last century’s exclusionary housing policies while increasing the supply of options for people looking to buy a smaller, more moderately priced home than what is commonly built today. Large single-family homes have been replacing smaller, older single-family homes throughout the county for years.

Opponents say it is unclear whether the changes will meet those goals. The group Arlingtonians for Upzoning Transparency, formed to oppose the proposal, blasted the Planning Commission for “recommending [the] most extreme Missing Middle options.”

Arlington County staff presented a number of options to commissioners, with their preferred recommendations. Mostly, the commission supported the recommendations of county staff.

In a deviation from staff, the commission recommended removing parking mandates for lots near transit. Staff had recommended 0.5 spaces per unit for these lots.

The Planning Commission also supported 5- and 6- unit buildings on the widest number of lots, which YIMBYs of Northern Virginia Director of Communications Adam Theo, and former County Board candidate, heralded as “the best option for providing homeowners flexibility” during public comment.

Annual caps on the number of permits for “Expanded Housing Option” projects proved an impasse for the commission. Staff had no recommendation here, and the only consensus the commission could reach was that any cap should have a three-year sunset clause.

Missing Middle proponents had advocated fiercely for no caps. A limit of 58 permits per year was proposed, but opponents did not seem to champion this as a concession.

“We have a responsibility to consider what the impacts will be and how it works with competing policies,” said Commissioner Elizabeth Gearin. We don’t know if this will have the outcome that we want, or if it’ll have negative impacts — if we’ll be displacing potentially low-income minority home owners in favor of moderate-income renters.”

“For this reason,” she continued, “I am definitely supporting caps, either that or some sort of pilot study, until we know more than we originally new and that we examine these impacts as we go forward.”

Member Daniel Weir said there is “no rationale in Arlington County’s Comprehensive Plan, or other planning documents, upon which to recommend annual limitations to EHO permits.”

Vice-Chair Sara Steinberger said she appreciates the sentiment behind this, but caps are “an appropriate way to push us into EHO and see what impact that has on the county.”

When the final vote came, Sarli confessed he “was struggling,” before ultimately abstaining.

“I think it’s really great our community is embracing this — a little trepidatiously — but it is,” he said.

Sarli did make two recommendations that received full approval from the commission. One was the creation of a design guidebook with conceptual designs for EHO conversions and new constructions.

The other was a future study of ways to tackle policy concerns like the proliferation of oversized dwellings, including single-family homes derided by critics as “McMansions.” Commissioners wondered whether it might remain more profitable for developers to simply continue building large single-family homes, undermining the advancement of EHOs.

Sarli had a message for the Arlington County Board, expressing dismay with the unfolding of the multi-year process, which was rife with contention.

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Supporters of Missing Middle housing options will rally this weekend in favor of allowing denser dwellings in neighborhoods zoned for single-family homes.

The rally this Saturday, Feb. 25, will be held at 1 p.m. at Courthouse Plaza near the county government headquarters at 2100 Clarendon Blvd. It will include speakers from a half-dozen civic organizations that support the proposed zoning changes, which go before the Arlington County Board for a final vote in March.

“The rally will demonstrate to the Arlington County Board the strong and widespread support for expanded housing options in the County,” Jane Green, co-founder of YIMBYs of Northern Virginia, said in a statement.

“The County Board is considering expanded housing options and will vote in March on zoning reform,” she said. “The question is, will the County Board reverse decades-long exclusionary zoning policy to bring more attainably-priced housing options to Arlingtonians — or will they scale back the expanded housing options which are much needed in Arlington?”

The rally follows one held in January by Missing Middle opponents.

Arlingtonians for Upzoning Transparency and Arlingtonians for Our Sustainable Future, both opposed to the proposed zoning changes, held a rally that drew several hundred people to hear from several speakers on their predicted effects of the changes.

Representatives from organizations told ARLnow there are no plans to hold follow-up rallies before the Planning Commission is slated to vote on the proposed changes on Monday, March 6 and the Arlington County Board is scheduled to vote on them on Saturday, March 18.

This proposal has been touted as a way to partially undo the lasting impacts of county decisions that excluded people of color from many neighborhoods, such as racially restrictive deed covenants, the decision to ban rowhouses, and a physical wall white residents built to keep out those living in Halls Hill, a Black enclave of North Arlington.

Speakers at this weekend’s rally represent the NAACP Arlington Branch, the League of Women Voters of Arlington and Alexandria City, the Potomac River Group of the Sierra Club, Virginians Organized for Interfaith Community Engagement and YIMBYs of Northern Virginia, Green said.

“This rally will feature speakers raising their voices in favor of historic zoning reform — the right thing to do for the environment, Arlington’s tree canopy, and [Black, Indigenous and people of color] and historically marginalized people in Arlington,” she said.

On these points, opponents say these changes will encourage development and thus tree removal, while failing to provide homes affordable to people making less than $100,000, and thus not doing enough to address lower levels of homeownership among people of color.

One critic recently argued a better tool for combating racial inequality would be with “housing reparations,” such as down-payment assistance. (Arlington County has a program like this for first-time home buyers.)

Price is one reason the rallying organizations have advocated for options such as eight-plexes, which the county documents suggest would be more affordable than two- to six-unit dwellings.

Last month, the Arlington County Board removed this ceiling in a 3-2 decision, with County Board Chair Christian Dorsey and member Katie Cristol dissenting. The draft zoning changes, if approved next month, would cap at six-unit dwellings.

The Arlington branch of the NAACP said this preliminary decision could violate the Fair Housing Act, though it has continued generally supporting the Missing Middle proposal.

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(Updated at 8:20 p.m.) The Arlington County Board has taken the next step toward potentially allowing Missing Middle housing.

This evening (Wednesday), during its third meeting on a request to advertise public hearings regarding the proposed zoning changes, the Board voted unanimously to kick off two months of public discussion on a proposed set of options and alternatives.

The Board will reconvene to consider adopting a final proposal in March.

Opponents and some proponents of Missing Middle housing expressed disappointment with the proposal, which does not include 7- or 8-unit buildings.

The advertised change would allow small-scale multifamily buildings, from duplexes to townhouses to 6-plexes, in areas that are currently only zoned for single-family detached homes. The Board’s vote took off the option to prohibit additional housing types on sites larger than one acre.

The Board must consider some type of parking minimum going forward, as the only option not to have any minimums was struck from the proposal.

Arlington County Board Chair Christian Dorsey said he is “deeply disappointed in the advertised ordinance.”

“I’m disappointed that the limited nature of what will be offered today doesn’t give us the ability over the next two months to do the best policy,” he said. “That’s a profound disappointment for me but not certainly not enough to vote against it.

“The most affordable units that could be made available are taken off the table for the biggest lots in Arlington that could accommodate them, limiting the opportunity to further provide attainability for people being able to achieve economies of scale and subsidize on a per-unit basis in a very cost efficient way,” Dorsey added.

Board member Matt de Ferranti was more supportive.

“My policy goals are the same as they were in December 2019 and in the scope that we wrote in September 2020: affordable homeownership, 3-unit type family dwellings and flexibility in housing types and residential uses in single-family neighborhoods,” he said. “The RTA moves us forward to that goal.”

“I think we need to move forward with what we’ve done,” de Ferranti continued. “We must move forward because my grandparents benefitted from single-family zoning in New Canaan, Connecticut and Pittsfield, Massachusetts and the grandparents and parents of many Arlingtonians of color did not. Move forward because there is never a wrong time to do the right thing. Move forward because if you can build a large home on a lot it is reasonable to build smaller dwellings in the same sized building unless there are outside costs or unreasonable burdens to doing so.”

Immediately following the vote, Arlingtonians for Our Sustainable Future, an organization opposed to the plan, denounced what the Board approved.

“If County Board members vote to finally adopt this Missing Middle mess, it will permanently stain their legacies,” said ASF leader Peter Rousselot, in a statement. “The County Board has disregarded the testimony and findings of prominent realtors, architects, economists, land use attorneys, engineers, and other experts who all have explained why the Board’s Missing Middle plan won’t work in Arlington.”

In its statement likewise criticizing the decision, Arlingtonians for Upzoning Transparency said the process so far has not been transparent and the result won’t be more modest-sized homes attainable to moderate-income residents.  .

“The [Missing Middle housing] will incentivize developers to tear down modest, single-family homes and build $1.5 million townhouses and duplexes or small one-and-two-bedroom rental units,” said Julie Lee, a founding member of AfUT. “The County should not promote the false promise that the free market will produce lower cost housing. Developers will build the most profitable — and most expensive — [Missing Middle housing] possible, using every bit of allowable lot coverage to do it.”

Leaders of YIMBYs of Northern Virginia, which supported a more robust version than what is now on the table, told ARLnow they commend the Board for unanimously approving the hearings but are disappointed with the limitations.

“All five members of the County Board very clearly stated that they wanted to create a new legacy for Arlington, so now, they have a responsibility to make good on that promise,” the group said. “Most Arlingtonians rent. Most Arlingtonians live in multi-family buildings and most of them say ‘Yes’ to new housing and new neighbors. Making sure that the majority’s voice and interests are represented in the final package is extremely important.”

“The big issue we can’t lose sight of is Arlington’s affordability crisis and housing shortage,” the group continued. “The ultimate litmus test will be, ‘Will Missing Middle actually produce new housing?’ There is a risk — if the final proposal narrows down the [request to advertise] even further, that it won’t.”

Mike Hemminger, NAACP Arlington branch president, said the decision to remove the densest buildings from the proposal amounts to “de facto segregation.”

3 board members chopped 8 from MMH, which has the same impact of excluding Black people from owning in modern time. How dare board members say this action begins to right the wrongs of the past. This is de facto segregation and our leaders missed the mark on a such historic vote.

— Mike Hemminger (he/him) (@mike_hemmi) January 25, 2023

Urban farms and breweries could be coming to a vacant office near you.

Over the weekend, the Arlington County Board approved a series of zoning changes aimed at tackling the stubborn office vacancy rate. They would allow the following tenants to move into offices by right:

• animal boarding facilities, provided animals are under 24-hour supervision
• urban farms
• urban colleges and universities
• breweries, distilleries and facilities making other craft beverages, such as kombucha and seltzer
• artisan workshops for small-scale makers working in media such as wood or metal, laser cutters, 3D printers, electronics and sewing machines

Colleges and universities or urban farms previously needed to seek out a site plan amendment, which requires Arlington County Board approval, to operate in spaces previously approved for office or retail use.

The code requires all animal boarding, farming and artisan product-making activities to occur inside the building.

A county report describes this existing process as “overly cumbersome” for entrepreneurs trying to prove their business concept as well as for landlords, “who may be averse to take a risk on a new type of use that may require significant building improvements.”

The changes require farms, craft beverage facilities and artisan workshops to maintain a storefront where they can sell goods made on-site to walk-in customers, which the report says could reinvigorate dead commercial zones.

“Artisan beverage uses can bring new life to vacant buildings, boost leasing demand and, when located in a walkable neighborhood, can attract both existing and potential residents, while creating active third places for the community to gather,” the report said. “By fostering space for small-scale makers, artisans, and the like, a creative economy can grow, and people who may not have the space for such activities in their urban apartments may see this as an attractive neighborhood amenity.”

Some of these uses were allowed along Columbia Pike in the fall of 2021 to encourage greater economic revitalization. At the same time, D.C.-based animal boarding company District Dogs was appealing zoning ordinances curtailing the number of dogs it could board overnight in Clarendon, prompting discussions about expanding the uses approved for the Pike throughout the county.

The next spring, County Manager Mark Schwartz developed a “commercial market resilience strategy” aimed at bringing down the county’s high office vacancy rate, fueled by persistent remote work trends catalyzed by the pandemic. The tool, which includes an expedited public review process, was first used last fall to allow micro-fulfillment centers to operate by-right in vacant office spaces.

In a letter to the County Board, Arlington Chamber of Commerce CEO Kate Bates said the rapid approval of these commercial activities is critical for attracting new and emerging businesses.

“The Chamber believes that the Zoning Ordinance needs reform, and that unnecessary restrictions on commercial use should be removed to help the economy of the County grow,” Bates wrote. “In the wake of record high commercial vacancy, timely change is needed. It is imperative that the County focuses on long-term solutions for new business models, both through increased adaptability for new uses and expedited timeframes for approval of these new uses.” Read More