Judge Rejects Arlington's Effort To Stop Missing Middle Zoning Lawsuit

ARLINGTON, VA — The trial in the case of a lawsuit brought by 10 homeowners against Arlington County over its Missing Middle Housing, or Expanded Housing Options, zoning policy will be allowed to move forward after a circuit court judge on Thursday rejected the county’s motion for an immediate appeal of his decision to let the lawsuit go to trial.

Arlington County had filed a motion with Circuit Court Judge David Schell to appeal his ruling allowing the lawsuit to move forward.

At Thursday’s hearing, the judge said the plaintiffs, the 10 Arlington homeowners, would suffer “substantial harm” from the construction of multifamily buildings if he were to grant the county’s motion, which could delay the trial for two or more years while being heard by Virginia’s appellate courts.

Schell said it would not be in either party’s interest to delay the trial for years, noting that if the county were to lose at trial, developers might have to tear down the Expanded Housing Option buildings constructed while the case is pending.

“Today’s ruling is another win for Arlington homeowners and another loss for the county, which now has brought in the big guns, hiring at Arlington taxpayers’ expense, Gentry Locke, a Roanoke law firm, to assist with the case,” Dan Creedon with Neighbors for Neighborhoods Litigation Fund LLC, said in a statement.

READ ALSO: Missing Middle Developers 'Spooked' By Lawsuit Against New Zoning Law

Neighbors for Neighborhoods Litigation Fund LLC was created in 2023 to provide funding for the litigation to have Arlington County’s EHO zoning ordinance declared void.

“The judge recognized that the county’s delay tactics would harm the plaintiffs as MMH/EHO buildings would be built pending an appeal,” Creedon said.

In November, Schell set July 8 as the start date for the five-day trial. The group of 10 Arlington homeowners are seeking to invalidate the Missing Middle Housing, or Expanded Housing Option, zoning ordinance.

The judge had ruled in October that the plaintiffs have “a fundamental right” to challenge “a rezoning of their property that they allege was done incorrectly or in violation of the Code of Virginia,” noting that “the nature of their ownership” changed when their property was rezoned.

The new housing zoning policy was approved by the Arlington County Board in March 2023 and went into effect on July 1, 2023. 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.

In their lawsuit, the plaintiffs argue that Arlington County violated the Code of Virginia by failing to conduct studies of the impact of increased density on infrastructure, such as roads, stormwater, and schools before the Arlington County Board voted to adopt the EHO zoning ordinance.

In the first six months of the new policy, 26 properties have been approved for multifamily development, with the projects concentrated in the smallest residential districts, totaling 5,000 and 6,000 square feet of land.

So far, most of the units approved by the county have been 6-plexes, the densest housing type allowed under the new EHO zoning. In Alcova Heights, for example, the county approved tearing down a modest 3-bedroom home on a tree-lined street to put up two side-by-side 6-plexes.

"The county’s loss on this motion comes even though it added four outside lawyers to its team from the prestigious Virginia law firm, Gentry Locke, in its fight against county residents," Arlingtonians for our Sustainable Future, a citizen's group opposed to the new Missing Middle zoning policy, said in a statement Thursday.

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