Missing Middle Lawsuit Arguments Heard In Arlington Circuit Court

ARLINGTON, VA — Attorneys for a group of Arlington homeowners opposed to the Missing Middle zoning ordinance and county attorneys made their arguments in Arlington County Circuit Court on Tuesday in response to a lawsuit filed by the residents.

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.

The Arlington County Board voted unanimously on March 22 to approve the Missing Middle Housing plan, a decision that expanded countywide the right of landowners to build multifamily structures of up to six units in areas previously restricted to single-family homes.

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

As of Sept. 15, Arlington County had approved eight EHO projects. The county had received 41 EHO applications from builders as of Sept. 8.

Retired Fairfax County Judge David Schell, who was appointed to handle the case after Arlington’s Circuit Court judges recused themselves from the case, said Tuesday he expects to make a ruling in the case on Oct. 19, with a possible full trial to come later.

Schell remained noncommittal as attorneys for the plaintiffs and the county made their oral arguments at Tuesday's hearing, Charlie Clark of the Falls Church News-Press reported.

Gifford Hampshire, an attorney for the plaintiffs, explained the ways the homeowners believe the county board’s “arbitrary and capricious” policymaking violates state and local law, according to Clark.

Hampshire also argued that the Arlington County Board violated the state Freedom of Information Act for its alleged failed to share with the public documents that were furnished to it about EHO. The alleged violation of the state Freedom of Information Act was argued before Schell in a separate hearing on Tuesday.

Arlington County Attorney MinhChau Corr argued on Tuesday 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, Clark reported.

The question before the court is whether the Arlington County Board acted appropriately when it made its decision, Corr said.

In arguing that the board did act appropriately, she said the lawsuit "amounts to upset residents who disliked the decision, petitioning the court to overturn the decision," describing the tactic as a "subversion of our democratic process," ARLnow reported.

In their lawsuit, the homeowners argued that the Arlington County Board failed to conduct studies of the impact of increased density from the adoption of the Missing Middle zoning ordinance.

At Tuesday's hearing, Corr argued the county was justified in not studying Missing Middle's impact on county infrastructure, stating that the county has planners and can rely on their views.

"It was disturbing, but not surprising, to hear the County Attorney dismiss the importance of environmental and infrastructure impact studies because we have staff who can give their opinions on EHO without having to do the work," Natalie Roy, a local Realtor who ran in this year's Democratic primary for county board, said in a statement.

"The County Attorney also said the EHO program was established to help combat Arlington's high home prices," said Roy, who campaigned against the Missing Middle zoning changes in her bid for the Democratic nomination. "Someone needs to let her know that affordability has not been a goal of Arlington's EHO densification program since mid-2022."

In their lawsuit, the homeowners also alleged that EHO zoning is arbitrary and capricious, bearing no reasonable relationship to public health, safety, or the general welfare, as required by state law. Additional counts in the lawsuit claim that the zoning amendment process was not initiated by a proper Arlington County Planning Commission motion or county board resolution; that the zoning amendment was not properly advertised; that the EHO cap is a special exception to the zoning regulations and requires county board review of applications.

Arlington County filed a motion in court in May to dismiss the lawsuit, arguing that the residents do not have standing and could not prove they have been harmed by the new policy because no residential units have been built under the new zoning law.

The county also stated proper notice of the proposed zoning changes was provided to the public, contrary to the residents’ argument that the Arlington County Board did not follow legal requirements that it provide a descriptive summary of the proposed actions.

"EHO/MMH zoning upends Arlington’s decades-old, successful land use policy to concentrate density along metro corridors," Dan Creedon with the Neighbors for Neighborhoods Litigation Fund LLC, said in a statement Tuesday.

Neighbors for Neighborhoods was created earlier this year to provide funding for the lawsuit against the Missing Middle zoning ordinance.

"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 this increased density in residential neighborhoods," Creedon said.

RELATED:

• Arlington County Asks Court To Dismiss Lawsuit Against Missing Middle
• Arlington Residents File Lawsuit To Block Missing Middle Housing Plan