The resident lawsuit against Arlington County’s Missing Middle zoning ordinances can move forward.
Today (Thursday), retired Fairfax County Judge David Schell denied most of the county’s motions to dismiss the case, according to an attorney for the 10 residents who sued Arlington. He had put off making a decision for one month when the parties last convened in court in September.
The judge upheld their right to sue on six of seven charges they levied against Arlington County. The residents said the county ran afoul of state law when it allowed 2-6 unit homes, also known as Expanded Housing Options or EHOs, in areas formerly zoned exclusively for single-family homes.
Among other reasons, they say the county acted improperly because it did not commission studies to gauge their impact.
Only one charge will not move forward, we’re told. This charge asserted the county violated Freedom of Information laws in how the county disseminated information to Arlington County Board members on the day of their vote as well as to the community.
The court will now reconvene on Nov. 16 to set trial dates.
“Residents are seeking to hold the Arlington County Board accountable for failing to follow the law in its elimination of single-family zoning in Arlington,” Dan Creedon, a member of Neighbors for Neighborhoods Litigation Fund, which has provided financial support for the suit, said in a statement.
“The judge’s ruling recognizes that the plaintiffs — all Arlington homeowners — get the opportunity to make their case at trial,” he continued. “This is the democratic process at work.”
Arlingtonians for Our Sustainable Future (ASF), another group opposed to Arlington’s Missing Middle rezoning, called the decision “a major victory for residents.”
“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,” said ASF founder Peter Rousselot.
Arlington County had argued the 10 residents who sued did not have legal standing to do so, saying it is too soon to tell if they will be harmed and it is unlikely they will experience particular harms other residents will not.
In court last month, Arlington County Attorney MinhChau Corr said this case amounts to upset residents who disliked the decision and took to the court for relief. She said this tactic is a “subversion of our democratic process.”
Schell disagreed. He said it was “readily apparent” that the plaintiffs have standing to sue as owners of properties that have been rezoned from single-family to multi-family, per the release from Neighbors for Neighborhoods.
“He added that the plaintiffs don’t need to wait for multi-family buildings to be built in their neighborhoods to sue and that the lawsuit is a ‘quintessential’ use of declaratory judgment (declaring that EHO zoning is void) as a remedy,” the organization said.
To illustrate the fact that the residents are affected by Missing Middle, the judge “used an extreme analogy that if their homes had been rezoned from residential to garbage dumps, it would affect their interests,” according to Natalie Roy, a former Arlington County Board candidate who published highlights in her “EHO Watch” newsletter.
