Elder Julio Basurto speaks during the County Board recessed meeting in 2021 (via Arlington County)
An Arlington man accused of sexually assaulting women he lured into his car in Clarendon has been found guilty on all counts.
Julio Basurto was convicted on four criminal counts after a three-day trial, the Office of the Commonwealth’s Attorney for Arlington and Falls Church announced Wednesday evening.
The prosecutor’s office noted that Basurto recorded video of one of his attacks.
Police said Basurto would drive up to Clarendon’s nightlife district early in the morning and offer women a ride, then would sexually assault the victim in his car. Detectives are still seeking potential victims from multiple other possible incidents ranging from September 2021 to September 2022.
Basurto was arrested last June, after an assault that occurred on May 21, 2023.
More on the trial and conviction, below, from a press release.
Today, following three days of trial and about two hours of deliberation, a jury found Julio Basurto guilty on all charges brought by this office. Mr. Basurto was convicted of two counts of abduction with intent to defile, one count of object of sexual penetration, and one count of forcible sodomy.
These charges stemmed from two separate incidents in the Clarendon area, one on October 10, 2021, and another on May 21, 2023, in which he lured two different women into his car, and sexually assaulted each of them.
During the investigation, it came to light that Mr. Basurto recorded one of the sexual assaults and saved the video on his mobile phone in a file that was double encrypted.
Deputy Commonwealth’s Attorney Nassir Aboreden successfully tried the case and obtained the guilty verdicts from the jury. Our Victim Witness team provided essential support and helped the victims navigate the legal system. The Office is grateful to the ACPD, who doggedly investigated this case since the first reported instance, in 2021, and the Special Victims Unit detectives for their care in preparing the case and sensitivity toward the victims.
Commonwealth’s Attorney Parisa Dehghani-Tafti said, “I’m grateful the jury came to the right verdict here. It’s hard to say that this is justice because the victims will always have to live with the trauma they have endured in these violent sexual assaults – but this is a win for public safety, so no woman trying to enjoy a night out with her friends has to fear that Mr. Basurto will do the same to them.”
Sadly, based on information obtained during the criminal investigation, detectives believe there may be additional incidents that occurred during the early morning hours on the following dates:
September 20, 2021
October 3, 2021
October 14, 2021
September 4, 2022
We urge anyone who may have experienced a similar incident or who has had past inappropriate encounters with Mr. Basurto to contact the Arlington County Police Department’s tip line at 703-228-4180 or [email protected]. Information may also be provided anonymously through the Arlington County Crime Solvers hotline at 1-866-411-TIPS (8477).
Police looking for evidence where shots were fired along S. Wakefield Street in Barcroft (staff photo)
A grand jury has returned an indictment for a man on felony charges in connection to a wild police chase in October 2022.
The indictment against Ricardo Singleton, returned last Monday, included charges for eluding police and shooting a firearm from a vehicle within 1,000 feet of a school. They follow a bizarre crime spree for which Singleton was arrested on Oct. 6, 2022.
The man allegedly made a U-turn in front of Arlington County police headquarters in Courthouse and brandished a gun at a sheriff’s deputy, later fleeing and striking a parked car. That evening, police chased the suspect vehicle through Arlington — where shots were fired along a residential street — and into Fairfax County. Singleton was arrested after his gun reportedly jammed.
Fairfax County Commonwealth’s Attorney Steve Descano subsequent compiled a detailed timeline of the events. His use-of-force review found that a Fairfax officer fired shots at Singleton, but the officer acted properly in doing so.
Singleton had a court hearing in Fairfax General District Court this March. He was charged with three counts of attempted maiming of law enforcement officers and one count of using a firearm in the commission of a felony.
The court certified all these charges to Fairfax County Circuit Court. His trial in Fairfax is set to begin on May 20, 2024, according to Laura Birnbaum, the Fairfax County Commonwealth’s Attorney Deputy Chief of Staff.
On Oct. 24, Singleton had a hearing in Arlington General District Court on a slew of charges: three counts of assault on law enforcement, two counts of eluding police, brandishing, use of a firearm in the commission of a felony, reckless handling, endangerment and damage exceeding $1,000.
The Arlington court dismissed most of the charges after not finding probable cause, the standard of proof required for an indictment, sources say. To convict Singleton, the Commonwealth’s Attorney would have to meet a higher standard of proof, “beyond a reasonable doubt,” that he committed the crimes.
A felony eluding charge, meanwhile, was certified to Arlington County Circuit Court.
Last week, Commonwealth’s Attorney Parisa Dehghani-Tafti presented the court with new felony charges — including shooting a gun from a vehicle, near a school — for which she says there is stronger evidence.
Felony charges against Ricardo Singleton (via Virginia Courts Case Information)
If he is found guilty, Singleton could face 2-10 years in prison for shooting a weapon within 1,000 feet of a school and 1-10 years for shooting a weapon from a car, according to state sentencing guidelines. The eluding police charges come with a jail sentence between 1-5 years.
On most of the charges — save for the one involving shots fired near a school — a jury or the court can opt for fewer than 12 months in jail, tacking on a $2,500 fine.
Falls Church carjacking suspect (courtesy City of Falls Church)
The case involving the man who allegedly went on a carjacking and assault spree through Falls Church and Arlington is moving forward.
Last week — eight months after his arrest — he was identified as Garrett Reeves, of Lorton, according to Susan Finarelli, a public information officer for the City of Falls Church Police Department.
He has been charged with carjacking, malicious wounding, destruction of property with intent and felonious charges of failure to stop at an accident and unauthorized use of a motor vehicle, per court records. He has hearings for these charges on Jan. 4 and 10, 2024.
Falls Church police arrested Reeves in March. According to police and a surveillance video aired by NBC 4, Reeves struck a pedestrian near the Beyer Volvo dealership and crashed into several cars, while driving a carjacked Jeep.
He fled and allegedly ran to a nearby shopping center, where he attacked a man and stole his car. He drove into Arlington and was reported to have rear-ended a woman driving on Langston Blvd. This stolen car was later found in Fairfax County, police said at the time. Two days later, he allegedly carjacked another car in Falls Church.
Between his arrest and now, however, he has spent most of his time in a state psychiatric facility because he was not deemed fit to stand trial. Statewide, this is an increasingly common finding that has strained state hospitals, the Virginia Mercury reports.
Falls Church police conducted two investigations before obtaining warrants for Reeves’ arrest, Finarelli said. He was arrested on multiple charges, including carjacking, and taken to the Arlington County Detention Facility — where Falls Church arrestees are jailed — though he was uncooperative and did not reveal his name.
“During his first arraignment, the Courts deemed him not mentally competent hence his transfer to the Western State mental hospital,” Finarelli said.
Last Tuesday, the Falls Church police department learned that the man was identified and transferred back to the Arlington County jail. There, Finarelli says, he was served with additional warrants and held in jail without bond.
The Arlington County Police Department is not seeking charges for the hit-and-run in the county — considered a misdemeanor — because Reeves faces felony charges for the hit-and-run and carjacking in Falls Church, ACPD spokeswoman Ashley Savage tells ARLnow.
FBI activity on Columbia Pike on April 27, 2022, related to the James Gordon Meek case (courtesy John Antonelli)
FBI activity on Columbia Pike on April 27, 2022, related to the James Gordon Meek case (courtesy John Antonelli)
FBI activity on Columbia Pike on April 27, 2022, related to the James Gordon Meek case (courtesy John Antonelli)
A former ABC News producer whose Columbia Pike apartment was raided by the FBI last year has been sentenced.
James Gordon Meek, 53, pleaded guilty in July to transportation and possession of child sexual abuse material. Today he was sentenced to six years in prison, just above the minimum five year sentence for the charges.
The FBI raided Meek’s apartment on Columbia Pike in April 2022, as photos first published by ARLnow — taken by local resident John Antonelli — showed. Speculation about the raid swirled in the ensuing months, in part due to Meek’s job as a prominent producer for ABC News and his former role in counter-terrorism for the House Committee on Homeland Security.
More on the sentencing, below, from a U.S. Dept. of Justice press release.
An Arlington man was sentenced today to 72 months in prison for transportation and possession of child sexual abuse material.
According to court documents, while visiting South Carolina in February 2020, James Gordon Meek, 53, used an online messaging platform on his iPhone to send and receive images and videos depicting minors engaged in sexually explicit conduct, and to discuss his sexual interest in children. Some of the images and videos depicted prepubescent minors and minors under the age of 12, including an infant being raped. Meek brought the iPhone containing the child sexual abuse material back with him when he returned to Virginia. Additionally, Meek possessed multiple electronic devices containing images and videos of minors engaged in sexually explicit conduct.
Jessica D. Aber, U.S. Attorney for the Eastern District of Virginia, and Wayne A. Jacobs, Special Agent in Charge of the FBI Washington Field Office Criminal Division, made the announcement after sentencing by Senior U.S. District Judge Claude M. Hilton.
Assistant U.S. Attorney Zoe Bedell and Trial Attorney Whitney Kramer for the Department of Justice’s Child Exploitation and Obscenity Section prosecuted the case.
This case was investigated by the FBI Washington Field Office’s Child Exploitation and Human Trafficking Task Force. The task force is composed of FBI agents, along with other federal agents and detectives from northern Virginia and the District of Columbia. The task force is charged with investigating and bringing federal charges against individuals engaged in the exploitation of children and those engaged in human trafficking. Valuable assistance was provided by the Arlington County Police Department.
This case was brought as part of Project Safe Childhood, a nationwide initiative launched in May 2006 by the Department of Justice to combat the growing epidemic of child sexual exploitation and abuse. Led by U.S. Attorney’s Offices and the Child Exploitation and Obscenity Section (CEOS), Project Safe Childhood marshals federal, state, and local resources to better locate, apprehend, and prosecute individuals who exploit children via the internet, as well as to identify and rescue victims. For more information about Project Safe Childhood, please visit www.justice.gov/psc.
The Arlington County Courthouse and Detention Center facilities are pictured in 2019 (staff photo by Jay Westcott)
Residents should be on the lookout for a postcard from the Arlington County Circuit Court about jury duty.
This month, the court will be mailing questionnaires to about 35,000 residents randomly selected from registered voter rolls as part of its annual jury selection process. The questionnaires will be used to determine who is eligible for jury duty next year.
The average length of a trial is 1-2 days, but trials may last longer, per a press release.
If an individual does not receive a questionnaire, “there is nothing further to do,” it says.
Residents are instructed to submit a form online — or call 703‑228‑3123 to receive a mailed paper copy if they do not have computer access — within 10 days of receiving the postcard.
The county asks individuals who no longer live in Arlington, but receive the postcard, to complete the form so they can be disqualified.
People who qualify for jury duty will receive a summons to appear in the mail next year.
Jurors must be available between 9 a.m. and 5 p.m. during their period of service.
According to the release, jurors are set to receive “$50 each day they report for reimbursement of expenses” — which looks to be up $20 from last year.
Historic photo of Clarendon (courtesy Center for Local History, Arlington Public Library)
Historic photo of Clarendon (via Clarendon Alliance)
Historic photo of Clarendon (courtesy Center for Local History, Arlington Public Library)
Historic photo of Clarendon (courtesy Center for Local History, Arlington Public Library)Court House, 1932
In 1922, Clarendon almost became a town.
The rallying cry was the neighborhood slogan, “Do it for Clarendon,” says local historian Sean Denniston.
Arlington County, formerly within the borders of what was then called Alexandria County, got its name in 1920, to avoid confusion with the City of Alexandria. Twenty years prior, however, residents already saw Clarendon as its own town.
Proud residents, unified by the “Do it for Clarendon” spirit, built their own town hall, volunteer fire department and schools, and created their own phone book, Denniston told people who came to his lecture on this little-known piece of Arlington history. He gave the talk on Tuesday at Arlington Central Library in Virginia Square.
By 1922, the population swelled to around 2,500 people, mostly comprised of white families, he said. (As noted by the Gazette Leader, “Restrictive covenants on the original land sales ensured that Clarendon at the time was an all-white community.”)
In addition to standing up their own municipal services, local residents formed the Clarendon Civic Association — with membership restricted to adult men — and formed audit and public order committees.
These neighborhood leaders began to chafe against what they considered to be a non-cooperative and unhelpful government, Denniston said. They criticized the county for being unable to provide for the good of the community, citing the lack of robust water and sewage systems and poor roads.
“Bennett v. Garrett was really a fight between Clarendon and county interests — and to put it nicely, majority interests,” Denniston said. “Really, minority interests were not given much mind except to bolster one or other arguments.”
Incorporating as a town was a way to break free from this. They proposed boundaries stretching from N. Veitch Street to N. Quincy Street, an area of about 702 acres, and housing the town hall in what is today Northside Social on Wilson Blvd.
“Feeling that they’d been doing their own show for a long time, trying to become their own town seemed like a logical next step,” Denniston said. “[Clarendon residents] feared that the district would get autocratic control, and that they’d have no stake in future planning.”
The Clarendonians took their case to court, where they argued that Clarendon was separate and distinct from other neighborhoods in Arlington. They said the neighborhood could afford to be self-sufficient and the majority of residents supported incorporating as a town.
When the local courts struck down their case, they appealed to the Virginia Supreme Court.
In Bennett v. Garrett, the state ruled against the Clarendon residents. The court said forming an independent municipality would not promote the general good. This case set forth the precedent Arlington would not be subdivided in any way because it is “continuous, contiguous and homogeneous.”
That legacy can be felt today, in Arlington’s distinct communities and “urban villages” making up the nation’s smallest self-governing county.
Denniston mused that, while Clarendon’s secession attempt failed, the saga may have galvanized an imperfect understanding of how Arlington is, or is not, homogeneous.
“In no danger of new towns, is [Arlington’s] county structure, cost of living and changing demographics excluding ethnic and economic voices?” Denniston asked. “While the town of Clarendon and county elites weren’t worried about such things, we do care about ‘One Arlington.'”
Hon. Judith Wheat when she joined the Arlington County Circuit Court bench in 2019 (via Sudeep Bose/YouTube)
When Hon. Judith Wheat became Chief Judge of the Arlington County Circuit Court last week, she made history on two fronts.
She is the first woman Chief Judge the Circuit Court has ever had and, with her in the role, all three local courts now have a woman presiding as the lead judge.
Wheat assumed the responsibility last Thursday, replacing Hon. William T. Newman, Jr., who retired at the end of June. She makes the third in a trifecta of women chief justices in Arlington, joining Hon. R. Frances O’Brien, who leads the General District Court, and Hon. Robin Robb, who leads Juvenile and Domestic Relations Court.
“It is historical and I’m excited about that,” says Circuit Court Clerk Paul Ferguson.
The courthouse has seen a flurry of activity with the retirement of Newman, a local living historical figure.
Newman joined the Circuit Court in 1993, after serving two terms as Arlington’s first Black County Board member. He was appointed Chief Judge in 2003. He also founded the local nonprofit Arlington Community Foundation and moonlit as an actor in plays and on the TV screen.
“He’s a big part of Arlington history and we turned a big page with him ending his career in Arlington,” Ferguson said.
The courthouse celebrated Newman with send-offs fitting for a local celebrity and his notable wife, Sheila Johnson — the co-founder of Black Entertainment Television, a hotelier CEO, co-owner of the Washington Capitals and Wizards, and managing partner of the Mystics.
Additionally, the state legislature honored Newman during its 2023 session with a resolution saying he “presided over the court with great fairness and wisdom,” the Gazette Leader reported. The judge told the publication he is joining former Circuit Court Chief Judge Paul Sheridan and former Circuit Court Judge Joanne Alper at a regional firm that provides dispute resolution services.
As for Wheat becoming Chief Judge, Ferguson says the process is a bit of a mystery.
“Nobody knows really how a Chief Judge is chosen,” Ferguson said. “History would show that the General District Court and Juvenile Court tend to rotate the position, like the County Board and School Board.”
Contrast that with the Circuit Court, where Newman was the chief justice for 20 years. His recent predecessor, Sheridan, and the chief justices before him — William Winston and Walter McCarthy — had similarly long tenures as chief. State law requires judges to step down when they reach 73 years old.
Ferguson notes Wheat joined the Circuit Court later in life and “had a significant career” before doing so.
The scene of the crash involving Heather Keppler’s daughter on a bicycle (courtesy Heather Keppler)
On Oct. 19, 2021, an elderly driver hit the daughter of Tara-Leeway Heights resident Heather Keppler while riding her bike.
The impact of her body cracked the windshield and she fell to the ground. She was whisked to the hospital in an ambulance where — not wanting to disturb any potential broken bones — doctors cut off a favorite running shirt and took a full-body X-ray.
Doctors said her tailbone was either broken or bruised and additional scans would confirm which injury it was. Keppler said they opted not to know, as the recovery process was the same: sitting on a donut pillow and missing her exercise routines. This pause took a toll on her daughter, then a freshman training for a regional running race.
Keppler decided to get a lawyer when one for the 86-year-old man involved called to see if she had one. The mother says in retrospect — after her experience ended in dropped charges — she is lucky she hired legal help.
“I don’t know how I would’ve found out [what] was going on,” she said.
Heather Keppler at her home in the Tara-Leeway Heights neighborhood (staff photo by Jay Westcott)
Since June 2020, Arlington police officers have been shepherding through the legal system less-serious traffic misdemeanors: speeding, driving without a license, and so on. Before, the Office of the Commonwealth’s Attorney had a prosecutor outside Courtroom 3C — where those cases are adjudicated — to enter plea bargains.
This arrangement was imperfect, according to Arlington’s top prosecutor, Parisa Dehghani-Tafti, who just won the Democratic primary race for her seat against challenger Josh Katcher.
The assigned prosecutor often did not have “any prior knowledge of the case” and did not share pre-court-date discovery with defendants, she wrote in a 2020 memo to County Manager Mark Schwartz. This was one reason she removed prosecutors from “3C.”
After hearing from a state agency that trains prosecutors and the Virginia State Bar Ethics Counsel, it became clear her staff could not meet their obligations to share all exculpating or incriminating evidence in these cases, she argued.
Dehghani-Tafti attributed this largely to an uptick in available footage from cameras that police wear and have in their cars. Sharing all evidence would require prosecutors to review, process and disclose footage from some 40,000 cases — a tall order given current staffing levels.
“We did not come to this decision lightly, but rather after a thorough analysis of several factors,” she wrote to the Arlington County Police Department in a 2020 memo.
Three years later, she tells ARLnow that her office has kept the promises in that memo.
“We have gotten involved in every case in which our law enforcement partners have asked us to get involved, as was promised in the memo,” she said.
Keppler, however, suspects that the lack of prosecutorial presence in traffic court could explain how her daughter never got her day in court. She supported Dehghani-Tafti in her original, successful 2019 bid but this experience led her to flip for Katcher.
The bike that Keppler’s daughter rode when she was hit (staff photo by Jay Westcott)
Dropped charges
After not hearing anything about her daughter’s case for some time, Keppler began to get worried.
Her lawyer found that subpoenas ordering the Kepplers and their assigned police officer to court on Nov. 18, 2021 were written but never issued.
“Because it was never issued, we never showed up to court,” she said. “Because no one was there, they dismissed the case.”
Like Keppler, local personal injury lawyer Jeff Jankovich says a prosecutor outside 3C could have helped the Kepplers. This person could have checked for the subpoenas and asked the judge to move the hearing date so everyone could make it.
Although Dehghani-Tafti’s memo says prosecutors were unfamiliar with the traffic cases on the docket that day, Jankovich recalls days when there were extremely experienced prosecutors who “did a pretty thorough job” of evaluating each case.
“If there were aggravating facts — an accident where someone was injured, or someone had significant prior record, even if it was minor speeding but the third, fourth or fifth offense — they were on top of that and it affected how they approached case,” he said.
Arlington County courthouse and police headquarters in Courthouse (file photo)
(Updated at 5:45 p.m.) When Braylon Meade died in a car crash, a juvenile court judge handed down a sentence of one year of incarceration and two years of probation to the 17-year-old who crashed into him.
Prosecutors asked for a longer confinement term.
Had the crash happened just two months later, however, the driver would have been 18, would have been tried as an adult in circuit court, and likely would have received a stronger sentence.
Meade’s mother, Rose Kehoe, argued last month that this case should have been transferred to Arlington County Circuit Court, which handles felonies, given the age of the young man who killed her son and the severity of the crime. The then-17-year-old was driving 95 mph, had a blood-alcohol content of under 0.08%, according to Chief Public Defender Brad Haywood, who spoke with multiple people familiar with the case.
Last month, Kehoe backed Josh Katcher, who is running against incumbent Commonwealth’s Attorney Parisa Dehghani-Tafti, citing the judgment call and how she was treated as by Dehghani-Tafti’s office.
“Meaningful reform requires nuanced thinking regarding the facts of each individual case and applying the law fairly and appropriately,” Kehoe wrote in a letter to State Sen. Barbara Favola, who endorsed the sitting Commonwealth’s Attorney. “In the case of Braylon Meade, we have no doubt that Ms. Dehghani-Tafti’s political rigidity on the issue of refusing to charge juveniles as adults is what governed this case.”
Justice for victims … or the lack thereof has become a defining storyline in this election. We are up with our first ad and I am grateful that Rose Kehoe is willing to share her family's experience with my opponent. pic.twitter.com/e33HdBzHRi
— Josh for Arlington (@Josh4Arlington) May 23, 2023
One of Dehghani-Tafti’s campaign promises was to not try children as adults where it was in her power to decide. In this case, she said the rehabilitative services provided by the juvenile system would be better for holding the defendant accountable than potentially incarcerating him in an adult prison.
The politicization over whether to try this one juvenile as an adult posed questions about whether it ever makes sense to try a juvenile as an adult and whether Arlingtonians want a top prosecutor to take a discretionary approach to trying juveniles as adults, or to never do it all.
Arguments for and against the practice
Dehghani-Tafti’s resolve reflects a trend in prosecutorial reform to advocate against trying children as adults. Proponents argue children are not mini-adults and their brains work differently and that keeping juveniles plugged into developmentally appropriate services improves their outcomes later in life.
Fair and Just Prosecution nonprofit executive director Miriam Krinsky takes this view. Her organization advocates for a evidence-based, rehabilitative approaches to juvenile justice and, in a statement to ARLnow, she said cases like this one are hard but prosecutors should follow the science.
“Science shows that young people under the age of 25 are developmentally different from adults and should be treated differently by the system,” she said. “The science also shows that young people have a greater capacity for rehabilitation, are more responsive to treatment than adults because their brains are still developing, and are more likely to age out of criminal behavior.”
ARLnow also heard from lawyers who agree with the starting point that children should not be in adult prison — but who have a different view about trying a case in circuit court, which operates differently than a juvenile court.
“The Commonwealth’s Attorney has tons of discretion on every bit of it and can pursue plea deals, deferred dispositions, all kinds of things that could have been done and it would have given everybody involved the superior resources of the circuit court,” says Greg Hunter, a local defense attorney.
In short, if, after a hearing, a juvenile is transferred to circuit court for trial, adult prison is not a guarantee and a sentence can come with more oversight and a broader range of services.
They say this makes sense for older juveniles, who age out of the supervision of juvenile court after they turn 21 and thus have a shorter probation period in which reoffending has greater consequences. Judges can blend juvenile and adult sentences, which one study says did not impact recidivism outcomes.
The discussion unfolds, however, in a county where children are rarely tried in circuit court to begin with. One notable recent exception is when Maxwell Adams was tried as an adult for murdering his father, for which he received a 32-year prison sentence.
Arlington County government headquarters (staff photo by Jay Westcott)
Arlington County has filed a response to the Missing Middle lawsuit against it.
Ten residents are suing the county, arguing that the recently-passed zoning changes known as Missing Middle were approved illegally and would allow development that harms their lives.
In a response shared with ARLnow, dated last Tuesday, May 23, the county argues that the plaintiffs did not prove they, in particular, will be harmed by any new development. It also disputes the claims that the county broke specific provisions in Virginia law related to zoning deliberations and meeting procedures.
Now that both sides have made their cases in writing, a hearing in the civil division of Arlington County Circuit Court is set for July 11 at 10 a.m. In other recent zoning battles in Virginia courts, the lower courts ruled in favor of the county government, while the state Supreme Court overturnedthose decisions.
The complaint against the county was filed in April, about a month after the Arlington County Board ratified zoning changes that allow the construction of 2-6 unit homes on lots previously zoned for single-family homes.
The plaintiffs complained their property values will be hurt and their quality of life diminished by any new “Expanded Housing Option” or EHO development.
They also said the Arlington County Board failed to properly advertise what was being considered and did not do the due diligence needed to understand the impact of increased density on the neighborhood level.
Arlington County is challenging the legitimacy of the lawsuit, asking the court to rule that the facts of the Missing Middle saga invalidate the claims and dismiss the case so it cannot come before the court again.
On substantive grounds, the county challenges the 10 residents, saying they failed to show the zoning changes will burden them such that the county must provide relief.
For instance, the plaintiffs predicted several negative impacts as a result of the change: increased flooding, sewage backups, school overcrowding and difficulty driving on narrow streets cramped with cars parked on the street. Arlington County says that is speculative at best.
“No property has been developed under the terms of the Zoning Amendment, and any allegations of harm are pure speculation,” the county said in its lawsuit. “The court cannot be asked to issue an advisory opinion based on hypothetical facts.”
The 10 residents also say the Arlington County Board did not consider a long list of societal impacts of which state code requires consideration prior to zoning code changes.
Just because it did not conduct the “special studies or investigations” the plaintiffs claimed were necessary does not mean the factors were not considered at all, Arlington County argues.
“The Board Report, the testimony of the County’s professional staff, and the testimony of the members of the County’s Planning Commission, Housing Commission, Transportation Commission and other advisory commissions and public speakers shows that the County Board adequately considered the factors in [state code],” the suit says.
The plaintiffs also claim the county exceeded its authority when it instituted tree canopy requirements tied to the number of units on a property. They said it violates the Dillon Rule to require more than what is required in the Chesapeake Bay Preservation Ordinance.
Arlington County sees it differently.
“The county amended its zoning ordinance to create an incentive for tree plantings in exchange for increased density, as permitted through its power to administer incentive zoning,” it says.
The decision demonstrates the courts are watching local governing bodies for procedural violations in its policy-making. People following Berry say this decision was somewhat unusual and could give the Arlington plaintiffs stronger footing — though a victory is far from guaranteed.
When the Fairfax County Board of Supervisors approved the changes in March 2021, local governments operating under Covid-era emergency rules could only take action on time-sensitive matters — such as the budget — in virtual meetings, explains Megan Rhyne, Executive Director of the Virginia Coalition of Open Government.
Three months after the decision was approved, state laws were expanded to allow local public bodies to discuss or vote on topics, like zoning, virtually. But the Virginia Supreme Court forced Fairfax to revert to an older zoning code because of this procedural misstep prior to the new laws taking effect.
The 10 plaintiffs in the Missing Middle suit say it is a point in their favor, arguing the state Supreme Court signaled it takes seriously procedural violations.
The suit alleges six ways the decision violated state law, including some procedural errors regarding how the meetings were conducted and how the policies under consideration were poorly explained and distributed. Additionally, the plaintiffs allege one instance where rights under the Freedom of Information Act were violated.
“These are hard cases to win. They’re not often won but we just had one that was a big surprise to a lot of people,” says Kedrick Whitmore, a land-use attorney with Venable, who has represented developers on numerous Arlington projects but is not involved in the Missing Middle suit. “Maybe it’s not as open and shut as you would normally see for challenges.”
Despite the possibly far-reaching consequences of Berry, it seems to have only slowed down Fairfax. The county is already restarting the process to overhaul its zoning code.
A common blueprint
State law says zoning codes serve a variety of purposes, including to reduce congestion, provide for public safety and ensure that natural lands are preserved. The law says officials only have to “give reasonable consideration” to these and other purposes, however.
In practice, this kind of standard can make it difficult for plaintiffs to allege a locality made substantive missteps. Thus, plaintiffs suing over an unpopular decision may find more success alleging procedural and FOIA violations, according to Whitmore and Rhyne.
“Local governments in Virginia are afforded extraordinary deference by the courts and legislation,” Whitmore said. “That makes the substantive road difficult and that’s why procedural might be most effective.”
Rhyne agrees, particularly as it relates to Freedom of Information Act allegations.
“It’s not unusual for a FOIA meeting violation to be alleged after an unpopular decision. Sometimes it’s true — sometimes it has been a violation — but sometimes it hasn’t,” she said.
“While it’s common to take that route, it’s uncommon for it to undo anything,” she continued, making Berry a “super rare” decision.
In the Arlington lawsuit, the plaintiffs allege the county did not post online all the meeting materials that the Planning Commission and Arlington County Board had access to, including a method Board Chair Christian Dorsey would later introduce, which the Board approved, for temporarily apportioning permits based on zoning district.
But the bar for public access requirements under FOIA is fairly low, according to Rhyne. Governments meet the provision if the public is given materials at the same time members of the government receive them, she said.
“If everybody is getting it at the same time, in-person, it’s not useful but it met FOIA,” Rhyne said. “FOIA doesn’t require meaningful time to digest what’s been given.”
This is a finer point than in Berry, which ruled for the plaintiffs because the March 2021 vote occurred when the law did not allow such decisions to be made using virtual-only meetings. This could limit how much Berry applies in Arlington, Rhyne said.
The plaintiffs, however, take a broader view of the principles at stake in Berry.
“Literally the day after the Board enacted densification and changes that are the focus of this suit, the Court reaffirmed the importance of statutory guardrails by invalidating Fairfax County’s zoning overhaul on procedural grounds,” the suit says. “In so doing, the Court affirmed that compliance with Virginia Code’s procedural requirements is not optional.”
The plaintiffs have made no statements about the case and did not wish to comment for this article, an attorney for them told ARLnow. Outreach about the case has been conducted by an LLC formed by residents, “Arlington Neighbors for Neighborhoods,” in the form of a press release last week. The LLC is also raising money to fund the litigation.
Can the plaintiffs even sue?
The first tack Arlington County will take will be to argue the harms these plaintiffs claim they face are not specific to them and thus they do not have “standing” to file a suit, according to Whitmore.
“You could argue that this affects everyone in Arlington County,” he said. “What standing does is it requires plaintiffs to show they have particularized harm.”
The county told ARLnow it cannot comment on ongoing litigation, but it has taken this general approach before, when it sued some residents and the Ballston-Virginia Square Association. The county petitioned the court to find the residents would not experience particular harm from a decision to temporarily park Arlington Transit buses nearby.
Another recent state Supreme Court decision indicates this is not a slam-dunk strategy for municipalities, though. The Virginia Supreme Court in February overturned a lower court ruling that found residents suing Hanover County over a Wegmans distribution center built in their historically Black neighborhood did not have standing.
A judge wrote that “standing determines who may file a lawsuit — not who can win one. Winning and losing depends on judicial fact-finding and discretion,” a local TV station reported.
Here, Whitmore says the plaintiffs have made efforts to show “they have been or will be harmed in some different particular fashion differently than the ‘every man’ of Arlington.”
All 10 plaintiffs say they will be hurt by higher tax assessments. Each argued how many of the general criticisms levied during the public process — from crowded streets to higher flood risks — represent unique harms for them.
One of the plaintiffs is Marcia Nordgren, who was active in anti-Missing Middle discourse on Nextdoor and published a letter to the editor in the Gazette Leader lambasting the Board and previewing some of the grievances in the lawsuit.
The suit says Nordgren’s neighbor can build Missing Middle homes by-right and she cannot challenge it because the property is under one acre. Others in her neighborhood can challenge developments near them because they need special permits to build such structures on their properties larger than one acre.
Margaret Fibel, who urged the County Board in March to update its infrastructure capacity before making the zoning changes, says Missing Middle development in her neighborhood would result in more street parking and congestion than in other places.
In her area, close to two Metro stations, developers will not have to provide as much on-site parking, meaning her already-crowded street will see even more street parking, she says.
The suit says the following about their plight and that of the eight others.
By singling out these Residential Districts without providing for adequate infrastructure and neighborhood-specific development, the Residents will suffer a particularized harm not applicable to the public generally in the form of increased traffic and parking, intensified stormwater runoff and sanitary sewer use and volume leading to flooding and sanitary sewer backups, tree canopy diminution, and prohibitively expensive tax assessment increases.
Zoning change proponents react
ARLnow previously reported the statements issued by two groups opposed to the zoning changes, Arlingtonians for Our Sustainable Future and Arlingtonians for Upzoning Transparency, on Friday. They both said they were not involved but watching the proceedings closely.
Afterward, proponents of the change disputed the idea that the county confused residents in its communications.
“This lawsuit claims improper notification and that people were confused, didn’t know what was going on,” said Missing Middle supporter Pastor Ashley Goff in a tweet. “Housing advocates knew EXACTLY what was going on which is why we pushed so hard for the change. Zero confusion on our end.”
Meanwhile, Grace White, Arlington Vice President of the pro-housing group YIMBYs of NOVA, told ARLnow this week that the organization is not fazed by the suit.
Missing Middle is an important yet incremental change that was approved unanimously by the county board after years of study, public comment, and deliberation. YIMBYs of NOVA is concerned at the moment with building on the policy to ensure better housing options for all Arlingtonians. We invite opponents of Missing Middle to join us in spending their efforts advocating for solutions, rather than challenging the validity of a duly enacted law in court.
