land use

The lawsuit filed in Arlington County Circuit Court last week against Missing Middle housing comes at a conspicuous time for land-use litigation.

Shortly after the County Board approved 2-6 unit buildings in heretofore single-family home zoning districts, the Virginia Supreme Court overruled a zoning overhaul in Fairfax County on procedural grounds in Berry v. Board of Supervisors of Fairfax County.

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.