Judge Blocks Zoning Plan Used As Model For Arlington's Missing Middle

ARLINGTON, VA — A Minneapolis zoning plan praised by supporters of Missing Middle Housing in Arlington has been struck down by a state judge in Minnesota, who ruled the city's implementation of the plan is an ongoing violation of the Minnesota Environmental Rights Act.

The zoning plan, called the 2040 Comprehensive Plan, eliminated single-family zoning in Minneapolis as a way to create greater housing density within city limits. The plan allowed the construction of two- and three-unit buildings in any residential neighborhood in Minneapolis.

The Minnesota judge's Sept. 5 ruling against the City of Minneapolis over the lack of a proper environmental assessment of the zoning ordinance came two weeks before a lawsuit brought by a group of anti-Missing Middle homeowners against Arlington County is scheduled to be heard in Arlington Circuit Court.

Among their arguments, the homeowners who filed the lawsuit in Arlington contend the county failed to conduct detailed studies of the zoning changes' impact on the economy, tree canopy, storm drainage, traffic, schools and parking.

At the hearing, scheduled for Sept. 19, a judge will hear arguments from both the plaintiffs' lawyers and Arlington County. The plaintiffs are asking the court to issue an injunction to prevent the county from continuing to issue Expanded Housing Option, or EHO, permits and declare the EHO zoning ordinance invalid.

In its response to the lawsuit, Arlington County argued that the plaintiffs lack standing, that the matter is not yet ripe for litigation because no EHO units have been built, and that there is no legal requirement to conduct studies or investigations cited by the plaintiffs for every legislative action taken by the board.

Minneapolis Must Revert To Previous Zoning

In the Minnesota case, Judge Joseph Klein, who ruled in favor of two environmental groups that brought a lawsuit against the City of Minneapolis' adoption of the 2040 Plan, wrote that the city must cease implementation of the plan until a properly conducted environmental impact statement or alternative urban area review has been completed.

The city was ordered by Klein to revert to the zoning plan that existed prior to the Minneapolis City Council’s approval of the plan in December 2018. Minneapolis can no longer enforce the residential development portion of the 2040 Plan, including amendments to land use ordinances that allow residential development that has already been determined to create “adverse environmental impacts” to the Minneapolis area, the judge wrote.

The city has 60 days to revert to its comprehensive plan that was in place prior to when the 2040 Plan went into effect.

The lawsuit against the city’s 2040 Plan was brought by Smart Growth Minneapolis and Minnesota Citizens for the Protection of Migratory Birds. They argued that the city’s plan to build 150,000 new housing units would increase pollution of already impaired city lakes, streams and watershed, due to increased runoff and, overtaxed storm water systems.

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The 2040 Plan also would diminish air quality due to increased traffic, congestion and idling, and reduce wildlife habitat and aquatic biodiversity, due to pollution and increased stream temperatures, the environmental groups said.

Minneapolis “did not even try to deny that the 2040 plan would have adverse impacts on the environment or that it had neglected to identify those impacts,” the groups argued. Instead, the city argued it was exempt from doing a study “to evaluate the effects on the environment of its massive land-use deregulation plan,” they said.

The 2040 Plan's provision for nearly 150,000 new residential units is 100 times more than the minimum number of new unattached residential units and 150 times more than the minimum number of new attached residential units that trigger a mandatory environmental impact statement under the Minnesota Environmental Policy Act, Klein wrote in his Sept. 5 ruling.

“This fact support’s the court’s finding that the 2040 Plan’s potential for significant environmental effects present a significant risk of irreparable harm to the environment,” he wrote.

Minneapolis' '2040 Plan' Used As Case Study

Throughout the Missing Middle debate in Arlington, even before residents understood that the county would ultimately seek to eliminate single-family zoning, Missing Middle advocates looked to Minneapolis as a potential model.

The Alliance for Housing Solutions, an Arlington-based group, sponsored a forum in June 2019 in which it praised Minneapolis' adoption of "a bold new comprehensive plan that will transform the way the city will grow, taking steps toward addressing historic patterns of segregation and lack of affordability."

At the forum, Andrea Brennan, director of housing policy and development for Minneapolis, spoke about how the city engaged with residents to develop its new plan that eliminated single-family zoning.

In 2020, Arlington County published a "stakeholder guide" to its Missing Middle Housing Study that listed Minneapolis' adoption of its 2040 Comprehensive Plan as an example of a U.S. jurisdiction that had "considered how 'missing middle' housing could serve as one tool to address housing affordability and supply in their community."

The Joint Facilities Advisory Commission, an advisory body jointly appointed by the Arlington County Board and the Arlington School Board, used Minneapolis' experience with its 2040 Plan to learn how jurisdictions "that have adopted missing middle housing policies addressed impacts on public facilities."

READ ALSO: Fairfax Co. Candidate Vows To Keep Out Arlington-Style Missing Middle

In May 2022, Arlington County highlighted a triplex building allowed under Minneapolis' 2040 Plan as a recent example from another U.S. community that staff had analyzed.

While Arlington County used Minneapolis' 2040 Plan as a case study, the two jurisdictions have many differences, including with how they address housing issues. For starters, Minneapolis is much larger, with a population of 425,000 compared to Arlington's 237,000 population.

Arlington has no legal mechanism to require that newly created housing units be priced affordably, while in Minneapolis, developers must make 10 percent of the units in their buildings affordable to those earning less than 60 percent of the average median income in Minneapolis, or $36,473. For developers who go beyond the requirement, if they make 20 percent of the units affordable, the city will add in cash assistance for the project.

Supporters of the 2040 Plan point to Minneapolis as a supply-side housing success story, citing a drop in some housing prices since it went into effect nearly four years ago. However, Minneapolis has witnessed a loss of residents to its suburbs over the last three years. This loss of population also likely contributed to a reduction in the city’s rents, according to reports.

Minnesota vs. Virginia Environmental Law

The decision by the judge in the Minneapolis case is based on an interpretation of one of Minnesota bedrock environmental laws: the Minneapolis Environmental Rights Act, or MERA. Virginia does not have a comparable law that aims to protect the environment.

MERA provides every person the right to challenge activities and decisions that will result in harm to the state’s environmental resources.

In the 50 years since its passage, MERA has "helped reduce hard-to-regulate pollution from agricultural run-off and halted excessive noise pollution from gun ranges," Kevin Reuther, deputy director and chief legal officer of the Minnesota Center for Environmental Advocacy, wrote earlier this year in an op-ed.

MERA "gives each of us the right and the responsibility to challenge bad decisions that will lead to what the law calls 'pollution, impairment or destruction' of the environment," Reuther wrote.

"Will the 2040 plan harm the environment? Many of us think it won’t," he wrote. "A clean environment, reducing air pollution and greenhouse gas emissions, and climate resilience are among the plan’s top goals. But so far it appears that the city hasn’t put much effort into showing that to the courts."

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