Missing Middle Lawsuit Trial Set As Arlington Appeals Judge's Ruling

ARLINGTON, VA — A circuit court judge on Thursday set a summer 2024 trial date for a lawsuit filed by a group of Arlington homeowners against Arlington County over the county’s adoption of the Missing Middle Housing zoning ordinance.

Judge David Schell set July 8, 2024, 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 setting of the trial date follows an Oct. 19 ruling in which Schell denied Arlington County’s efforts to have the case dismissed, stating it was “readily apparent” from the lawsuit that a homeowner whose land is rezoned, as what happened with Arlington's adoption of EHO zoning, can file a complaint.

However, on Thursday, Arlington County Attorney MinhChau Corr told Schell that the county wants to appeal the judge's ruling allowing the lawsuit to move forward. The judge set a Jan. 11, 2024, hearing date on whether he will let the county file the appeal, which requires his consent.

The plaintiffs’ attorney, Gifford Hampshire, indicated he will oppose the county’s effort for an appeal. If Schell grants the county’s motion after the hearing, the county then would request that the Virginia Court of Appeals consider the case. The Court of Appeals has discretion whether to accept the county's request for an appeal.

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Schell, a retired Fairfax County Circuit Court judge, was appointed to handle the case after Arlington’s Circuit Court judges recused themselves from the case.

During a September hearing that led to Schell’s Oct. 19 ruling to allow the lawsuit to proceed, Corr argued that the judiciary should not be allowed to question the Arlington County Board’s actions in adopting EHO zoning and that the lawsuit filed by the Arlington residents was “improper” and “a subversion of the democratic process.”

Dan Creedon of Neighbors for Neighborhoods LLC, a group created earlier this year to provide funding for the lawsuit filed by the group of 10 landowners, said in a statement Thursday that the “county’s hubris in claiming that the courts don’t have a role in reviewing EHO zoning is astonishing.”

“But now that a trial date has been set, and maybe reality is setting in, the county is seeking an appeal that could delay the trial and add tremendous expense to the litigation,” Creedon said.

Arlingtonians for Upzoning Transparency, an anti-Missing Middle Group, recently wrote to the Arlington County Board asking for it to disavow Corr’s statement that the lawsuit represents “a subversion of the democratic process.”

In a Nov. 3 response, Arlington County Board Chair Christian Dorsey, who will be stepping down from the board at the end of this year, stated that the board’s EHO decision “is wholly within the purview of the local legislative body, which has the constitutional authority to make county-wide land use decisions, revisions, and repeals if necessary.”

READ ALSO: Missing Middle Lawsuit Arguments Heard In Arlington Circuit Court

“It is our position that the Judiciary should not substitute its judgment for decision-making expressly reserved for the local legislative body,” Dorsey said.

In his Oct. 19 ruling, Schell stated that when the plaintiffs’ property was rezoned from single-family to multifamily under the Missing Middle Housing ordinance, “the nature of their ownership was changed.”

Schell also said it “is difficult to understand how a property owner whose property has been rezoned would somehow not have standing” to challenge the rezoning.

The new housing zoning policy was approved by the Arlington County Board 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.

Anne Bodine of Arlingtonians for a Sustainable Future, a local group that opposed the county's adoption of the Missing Middle Housing plan, said the county's decision to appeal the judge's ruling "seems like Arlington County wants to create a new barrier to ... prevent residents from challenging this or any future upzoning."

"That’s frightening," as "judicial review is a cornerstone of democracy," Bodine said.

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