Lawsuit Against Arlington's Missing Middle Allowed To Move Forward

ARLINGTON, VA — A judge ruled Thursday that a lawsuit filed by a group of Arlington homeowners against the county's Missing Middle zoning ordinance can move forward to trial, rejecting arguments by the county that the case should be thrown out.

Retired Fairfax County Judge David Schell, who was appointed to handle the case after Arlington’s Circuit Court judges recused themselves from the case, allowed the six counts of the homeowners' lawsuit that deal with the substance of the Missing Middle zoning ordinance to go to trial.

Arlington County had argued the case was not "ripe" because no Missing Middle buildings have been built, and that it would be a "subversion really of our democratic process" to challenge what the county did in passing the Missing Middle reform.

Schell rejected the county's argument, saying it is a "quintessential use" of the law to ask the court to weigh in. On whether the plaintiffs had standing, or a right to file a lawsuit against Arlington County, the judge found it "readily apparent" that a homeowner whose land is rezoned can file a lawsuit, adding that it would be difficult to understand how such a property owner would not have standing.

In an analogy, the judge posed that if the county changed the zoning on a home from a residential area "to a garbage dump," would anyone think they wouldn't have standing?

In his ruling, Schell did dismiss one count in the lawsuit that pertained to whether Arlington County violated the state Freedom of Information Act. The judge said he had concerns about the county's process and said it was "not the best possible way" but declined to find a violation.

The plaintiffs had argued that the Arlington County Board violated the state FOIA for its alleged failed to share with the public documents that were furnished to it about Missing Middle.

The court is expected to reconvene on Nov. 16 to set dates for the trial. The attorney for the plaintiffs told the judge that he believes the trial would probably last no more than three days.

“This is a step forward in returning common sense to Arlington. It is a win for everyone in the County who cares about schools, parks, public spaces, recreation, public transit, county services and the environment," Natalie Roy, a local Realtor who ran in this year's Democratic primary for county board, said in a statement Thursday.

Roy said there remains "a long journey ahead" for the lawsuit.

"However, this is an opportune time for the county to seriously consider cutting its losses by ditching its density everywhere scheme and starting over," she said. "If you are going to disrupt the neighborhoods that people come to Arlington for, you better have a good reason. The County did not.”

The 10 Arlington homeowners who filed the lawsuit in April want the court to issue an injunction to prevent the county from continuing to issue expanded housing option, or EHO, permits and declare the Missing Middle, or EHO, zoning ordinance invalid.

In the lawsuit, the homeowners alleged the county board violated state law in several ways in passing Missing Middle. State law requires economic and other studies on current and future needs, as well as that zoning laws reasonably consider the needs for transportation, schools, parks, recreation and public spaces, as well as the conservation of natural resources.

In its Missing Middle study, Arlington County did not address these potential impacts, according to the lawsuit.

At a Sept. 19 hearing in circuit court, Arlington County Attorney MinhChau Corr argued that the plaintiffs lacked standing and said their case was not “ripe,” given that it was filed before the rezoning took effect on July 1 and before any building permits were requested.

The new housing zoning policy was approved in March and went into effect on July 1. In its final approval, the county approved a cap of 58 permits in one calendar year, with the cap scheduled to sunset at the end of 2028.

Peter Rousselot of Arlingtonians For Our Sustainable Future, a local group opposed to Missing Middle, called the judge's decision "a major victory for residents of the County."

"Using our tax dollars to contest the residents, Arlington County's attorneys tried to get this case dismissed before trial on multiple different grounds, but failed," Rousselot said in a statement.

Juan Carlos Fierro, a Republican candidate for one of the two Arlington County Board seats up for grabs in the Nov. 7 general election, said the judge's ruling is "a victory for all Arlingtonians and a rejection of the county's failed governing philosophy."

"While the Judge’s ruling is a positive step to either repeal or modify Missing Middle, it underscores the fact that the county’s public engagement process is not very democratic," Fierro said in a statement. "The judge admonished the County Attorney for stating that the lawsuit was a 'subversion of our democratic process.' The County Attorney’s comment illustrates the lack of understanding by the County on what is true public engagement."

Charles Taylor, acquisitions manager of Classic Cottages, said Thursday that some developers are waiting to see how the lawsuit plays out before they decide whether to build new types of Missing Middle multifamily housing in areas of Arlington previously zoned only for single-family homes.

Taylor said his company, Classic Cottages, has received approval of five expanded housing option permit applications since July 1.

While there was a flurry of EHO applications filed by developers right after the new law went into effect on July 1, many developers are now waiting to see the outcome of the litigation, Taylor said at a webinar hosted by the Northern Virginia Association of Realtors (NVAR).

If the homeowners lose in their lawsuit to overturn the Missing Middle Housing program, it will “be full steam ahead” for developers to propose more EHO projects, Taylor said.

At Thursday's NVAR event, another panelist, Arlington County board member Matt de Ferranti, said he could not comment on the lawsuit filed by the 10 homeowners.

"Broadly, the status quo for us wasn’t working," said de Ferranti, referring to the supply and cost of housing in Arlington.

De Ferranti, who voted in favor of the zoning reform in March, said some opponents of Missing Middle have described the county board as "beholden to developers." He described those claims as "a simplistic way to look at it."

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