ART buses move through the Quincy site in the Virginia Square neighborhood (via BVSCA)
There is a new twist in the stand-off between Arlington County and neighbors over bus parking on a county site in North Arlington.
Arlington County recently dropped litigation against three neighbors and the Ballston-Virginia Square Civic Association, who tried to use the Board of Zoning Appeals process to block the county from parking 29 Arlington Transit (ART) buses on a county lot near Washington-Liberty High School.
The parking is a temporary arrangement while a new ART bus facility is built in Green Valley. The Arlington County Board allowed this when it approved a special exception use permit in the spring of 2022.
Nearly two years ago, the county zoning administrator determined the Dept. of Environmental Services could park the buses on the site — a requisite step for obtaining a use permit. One resident appealed the decision but a county staff member rejected it. A week later, the county sued him, his wife, a third resident and the Ballston-Virginia Square Civic Association, alleging he used the BZA process improperly to block the parking use.
The defendants say the county sued them preemptively and that the bus activity would seriously undercut their property values and quality of life.
“This could and should become a case study in how not to run a county government and then considering your role you and not considering your unique role as owners of the site and how your actions may affect neighbors,” said Maurya Meiers during public comment on Saturday, when the Arlington County Board reviewed the special exception permit for the site.
A BZA appeal had been filed on Meiers’ behalf two years ago and she is named in the lawsuit, per meeting materials and court documents.
Some residents came to the defense of their neighbors and their legal plight.
“It’s a SLAPP [Strategic Lawsuit Against Public Participation] suit: a use of superior resources to haul citizens into court wear them down and demoralize them, perhaps even beggar them lest they become too vociferous and their concerns about pollution, noise and other avoidable nuisances, such as those which this permit enables,” said neighbor Thomas Viles. “So far your lawsuit has accomplished nothing expensive as it was it proved insufficient to shut these voters up.”
Indeed, Arlington County says it dropped its suit because the BZA is now set to hear the appeal case built by neighbors who live in homes overlooking the parking lot. The hearing will determine whether the county zoning administrator acted properly or if her decision runs afoul of zoning ordinances, a site plan and a 1985 deed of covenant.
Viles says the BZA agreed to take up the appeal after hearing about the suit in ARLnow.
“When they did learn, however, the BZA repudiated [county government] for having kept them in the dark,” he said.
This fracas is obliquely referenced in a resolution the BZA passed last September, directing the zoning administrator to avoid this situation again by sharing all appeals with members regardless of their merit.
“The BZA has never authorized any person to decline to accept an appeal on the BZA’s behalf,” the resolution says. “County staff did not consult the entire membership of the BZA before declining to accept any appeals of a zoning administrator determination, nor did County staff inform the BZA of its communications and actions in regards to any appeals filed between March 7, 2022 and the date of the adoption of this resolution.”
An anti-Missing Middle sign in front of a house in Westover (staff photo by Jay Westcott)
(Updated on 1/29/23) Arlington County suffered another defeat last week in the pre-trial proceedings for the Missing Middle lawsuit.
It appealed an earlier court decision that the 10 residents suing Arlington County — alleging the County Board illegally approved the Missing Middle zoning amendments — have standing to do so.
Last Thursday, Judge David Schell denied the latest motion, meaning the court proceedings will continue forward with a trial this July, according to a press release from Arlington Neighbors for Neighborhoods, the LLC funding the litigation efforts on behalf of the 10 residents.
“[The] ruling is another win for Arlington homeowners and another loss for the County, which now has brought in the big guns, hiring at Arlington taxpayers’ expense, Gentry Locke, a Roanoke law firm, to assist with the case,” said Arlington Neighbors for Neighborhoods spokesman Dan Creedon in a statement. “The judge recognized that the County’s delay tactics would harm the plaintiffs as MMH/EHO buildings would be built pending an appeal.”
Schell said that granting the county’s motion could delay the trial for two or more years, per the release. This may not be in the county’s interest, either, the judge noted, musing that, should the county lose at trial, developers may tear down EHO structures — Expanded Housing Option, another term for Missing Middle — built while the case was pending.
Two land use attorneys recently broke down the details of the lawsuit in a panel hosted by the Arlington Committee of 100 last week. They walked through the county’s alleged procedural missteps, as asserted by lawyers for the plaintiffs.
“The reason for the procedural requirements aren’t to create arbitrary processes to do these things. The processes set forth in the code are there to ensure there’s adequate public discourse on the impact of what is being proposed,” said attorney Tad Lunger.
For major zoning map amendments, such as those allowing lower-density multifamily housing in previously single-family-only zones, Lunger says Virginia code requires a public discourse on how the changes would impact transportation and infrastructure and how those costs would be borne by residents.
“These things weren’t discussed at that level in Arlington,” he said.
One Missing Middle proponent, affordable housing advocate Michelle Winters, is optimistic that, should the county lose on procedural grounds, it could re-adopt the ordinance and resume approving EHOs.
“It’s very easy to cure procedural deficiencies. You change your process and re-adopt it. This is exactly what Fairfax County did,” Winters said.
The Virginia Supreme Court struck down Fairfax County’s zoning ordinance early last year but within a couple of months, the Board of Supervisors adopted the same ordinance after fixing the procedural issues. The changes were approved in a virtual meeting in 2021, at a time when virtual meetings were only to discuss essential government functions and services.
Pointing to the ordinances in Fairfax and similar changes Alexandria adopted late last year, she said it is clear these types of changes are here to stay, come what may from a lawsuit alleging Arlington County enacted its ordinance poorly.
“In Alexandria, what is relevant is the reflection of the shift that we’re seeing in America — not only in our region but in America — that this type of change absolutely needs to happen and no matter what you do to this particular ordinance, if this ordinance isn’t in place, something like it will be in place to replace it,” Winters said.
Raighne “Renny” Delaney, an attorney with Bean, Kinney & Korman, argued the lawsuit could have more far-ranging political impacts.
An anti-Missing Middle sign in front of a house in Westover (staff photo by Jay Westcott)
Although Arlington County is set to go to court next summer over its Missing Middle zoning ordinances, it has not stopped approving these new housing projects.
Judge David Schell has scheduled a 5-day trial to begin on July 8, 2024 after ruling in October that the 10 residents suing Arlington over the ordinances had standing. Among other claims, they argue the county violated state law by not sufficiently considering the impacts of Missing Middle.
“The court found it ‘readily apparent’ that a homeowner whose land is rezoned could sue, adding that it would be difficult to understand how such a property owner would not have standing,” per a press release from Arlingtonians for Upzoning Transparency, or AfUT, a group that formed in opposition to the ordinances but is not a party to the case.
“Such a challenge, the Court stated, was a ‘quintessential use’ of the law,” it continues.
The county disagrees. Arlington County Board Chair Christian Dorsey told AfUT in an email it “is wholly within the purview of the local legislative body, which has the constitutional authority to make countywide land use decisions, revisions, and repeals if necessary.”
“It is our position that the Judiciary should not substitute its judgment for decision-making expressly reserved for the local legislative body,” Dorsey continued.
Arlington County will attempt to appeal the judge’s standing decision in a hearing on Jan. 11. Should the judge grant the appeal, the Virginia Court of Appeals would decide whether to accept the case.
“The County’s hubris in claiming that the courts don’t have a role in reviewing EHO zoning is astonishing,” says Dan Creedon, speaking for Arlington Neighbors for Neighborhoods, the organization that is financially supporting the lawsuit. “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.”
The residents, meanwhile, plan to appeal the judge’s decision to deny its claim the county violated Freedom of Information Act laws in how it disseminated information to the County Board and the broader community.
“They had argued that they asked the County clerk for all public comments and the clerk emailed a link to the County website that had only a few letters,” anti-Missing Middle group Arlingtonians for Our Sustainable Future said in a press release last week, after the trial date was set. “A FOIA request revealed, in fact, the County had far more.”
Twenty-one Missing Middle projects — about a third of the 58 permits currently allowed per calendar year — have been approved as of last week, according to the county’s permit tracker. Five are under their first or second review, eight had their first review rejected and one application was withdrawn.
None of the projects are located in the county’s zoning districts with the largest lot sizes, or 8,000 to 20,000 square feet.
Developers who spoke to ARLnow said their project’s status depends on how many of the required permits they have in hand.
Home builder Ned Malik, whose Bluemont neighborhood project has started demolition following county approval, says he is undeterred by the lawsuit.
“We’re hoping to get started on construction in the first quarter of 2024,” Malik says. “We are moving forward on it. We definitely would be a witness for the county [as to] why it’s a much-needed thing, smart thing to do.”
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.
Arlington County courthouse on Tuesday, Sept. 19, 2023 (staff photo by James Jarvis)
Attorneys for residents contesting the new Missing Middle zoning ordinances and Arlington County squared off today (Tuesday) in court — but a decision will not be reached until at least next month.
Residents sued the county earlier this year, shortly after the Arlington County Board adopted the Missing Middle zoning ordinance changes authorizing 2-6 unit homes in areas previously zoned for single-family homes only.
They claimed the changes run afoul of state law on substantive and procedural grounds. The county disputes that and says the case ought to be dismissed because these residents will not be harmed — and are no more impacted than any other resident — by Missing Middle construction.
Gifford Hampshire, an attorney for the plaintiffs, argued the county made several missteps, including not commissioning studies to determine the impact of these changes; promulgating confusing ordinances; and failing to post online a document that the County Board was given ahead of the vote.
Documents should be provided to the public at the same time so “everyone is well informed and can participate meaningfully in the public process,” he said.
For Arlington County Attorney MinhChau Corr, the question at hand is not whether Expanded Housing Options, or EHOs, are a good idea. Rather, she told the court, the question is whether the County Board acted appropriately when it made its decision.
She said this case amounts to upset residents who disliked the decision, petitioning the court to overturn the decision. She said this tactic is a “subversion of our democratic process.”
After the arguments, retired Fairfax Judge David Schell informed those present he would render a decision on Oct. 19 at 10 a.m. He was appointed to handle the case after Arlington’s Circuit Court judges recused themselves, delaying the hearing process by a few months, the Gazette Leader previously reported.
Between now and next month, Schell said he will determine whether the plaintiffs have standing. This will determine whether he dismisses the case and will inform his judgment on the claims related to Freedom of Information laws.
Corr argued attempts to show the plaintiffs will suffer harm other residents will not face with EHO construction is speculative, saying “they don’t even know what [EHOs] look like.” Permits for EHO construction only recently started receiving approvals from the county.
Hampshire says the 10 plaintiffs own homes in neighborhoods where 2-6 unit homes would stress their water and sewer lines, overcrowd their schools and potentially increase their property assessments.
A few dozen people attended the arguments, including Dan Creedon, representing the Neighbors for Neighborhoods Litigation Fund, created to fund the lawsuit. He provided the following statement to ARLnow.
EHO/MMH zoning upends Arlington’s decades-old, successful land use policy to concentrate density along Metro corridors. 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 the increased density in residential neighborhoods.
Former Arlington County Board candidate Natalie Roy told ARLnow after the hearing that the county’s arguments “seemed to be based on an alternative universe.”
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.
A sign along Washington Blvd in Westover, in a neighborhood with duplexes (staff photo by Jay Westcott)
(Updated at 1:35 p.m. on 4/26/23) A group of residents has filed a lawsuit in Arlington Circuit Court alleging the zoning changes called Missing Middle are illegal.
The residents say Arlington County ran afoul of state law by rushing through the changes without considering impacts on infrastructure and community resources — a frequent criticism of the years-long policy discussion.
Last month, the Arlington County Board approved changes to the zoning code allowing up to six-unit dwellings on lots previously zoned only for single-family homes. The Board did approve a set of limitations intended to control the pace and impact of development, including parking minimums, permit caps and tree planting requirements.
According to “Arlington Neighbors for Neighborhoods,” a group that issued a press release on behalf of the plaintiffs, that was not enough.
“State law requires that zoning ordinances consider needs for transportation, schools, parks, recreation, and public spaces, as well as the conservation of natural resources,” the statement said. “The law also requires consideration of a locality’s comprehensive plan, which addresses stormwater, sanitary sewer, water distribution and more.”
The group said the lawsuit claims Missing Middle — also referred to by the county as “Expanded Housing Options” or EHO — is “arbitrary and capricious and bears no reasonable relationship to public health, safety, morals or the general welfare, as required by state law.”
(In addition to issuing a press release, Arlington Neighbors for Neighborhoods “has raised funds to support the litigation,” an attorney for the plaintiffs told ARLnow.)
Their lawsuit says the county also violated state law the following ways:
The zoning amendment process was not initiated by a proper Planning Commission motion or County Board resolution
The zoning amendment was not properly advertised
The EHO cap is a special exception to the zoning regulations and requires County Board review of applications
The County Board failed to share with the public documents that were furnished to it about EHO
The county violated the Dillon rule by knowingly requiring a number of shade trees that exceeds what Virginia allows localities to impose
Their petition asks the Circuit Court to declare that the zoning amendments violate state law and prevent the county from issuing EHO permits.
The allegations that the County Board violated Virginia Freedom of Information Act laws may require a hearing in the coming days, said another anti-Missing Middle group, Arlingtonians for Our Sustainable Future (ASF), in an email newsletter today.
“There will likely be other hearings in the coming months,” ASF said. “Then, of course, there may be appeals. Any complaint in a lawsuit consists of allegations which must be proven in court, and challenging zoning is surely an uphill battle.”
ASF noted that the FOIA allegation resembles a successful lawsuit against Fairfax County that led to the overturn of zoning changes it made two years ago. Last month, the Virginia Supreme Court declared the county’s 2021 zoning modifications void because the new code was adopted at a mostly virtual meeting.
One of the Fairfax County plaintiffs even advised Arlington residents in a post on Nextdoor to file a lawsuit.
“Sue them,” she said in response to a post musing about recalling the Arlington County Board. “We just won our lawsuit… it took two years, but it was worth it.”
In response, two residents pointed out that her victory was on procedural grounds due to how the meeting was conducted.
“It will likely pass again, with in-person public hearings and votes,” said one Donaldson Run resident. “Congratulations, you’ve succeeded in wasting taxpayer dollars and time.”
Although unified on running a “safe and progressive” jail, including by ending solitary confinement, they had different plans for improving the physical safety and mental well-being of staff and inmates.
“We’re definitely going to remove [solitary confinement],” said Quiroz, the son of Honduran immigrants who grew up in Arlington and joined the Sheriff’s Office 21 years ago after a stint in the Marine Corps. “We’re already reviewing this. It’s not helpful, it’s not healthy and it’s not rehabilitative. It needs to go.”
Herring, a graduate of Arlington Public Schools who was a police officer in D.C.’s Ward 8 before joining the Arlington County Police Department in 2019, said there are better alternatives to the practice.
“There are going to be people who will have to be separated from others because they just will not work well for whatever reason — they might have to be separated for safety reasons — but we absolutely cannot put people in holes and forget about them,” he said. “We need to connect them to mental and medical health care and keep them connected with family.”
Younger, who retired from the Sheriff’s Office after 31 years of service, said solitary confinement exacerbates mental health issues rather than contributing to an individual’s rehabilitation.
“What we need to do is focus on programs to help identify the root causes of why people act in certain ways,” she said, calling for training in trauma-informed care and in understanding common triggers of negative behaviors.
They articulated positions ARLnow previously reported on, regarding well-being in the jail, which saw seven men die while in jail. Six of the inmates were Black, which led the Arlington branch of the NAACP to push for greater transparency from the office and changes to jail operations.
Quiroz says he is bringing in biometric sensors that allow staff to respond to medical emergencies “where seconds and minutes count” and interested in the county assuming control of medical care.
ACSO ditched its former contracted medical care provider in response to a growing number of deaths in the jail, and one inmate has died since the new provider took over.
Herring argued for adding in-house psychiatrists to the existing ranks of therapists and clinicians.
“We still have to ship people across the state to actually see a psychiatrist who does not know them, their community, where they’re from or what their issue is,” he said. “Oftentimes they just load them up with meds and send them back here until they’re tranquilized enough… to carry on, and the cycle repeats.”
Counterfeit OxyContin with fentanyl, also known as ‘blues’ (via Drug Enforcement Agency/Flickr)
Drug use intervention programs for youth are in short supply in Arlington County, according to people who help youth with substance dependencies.
The need is particularly acute for younger teens, as the onset of exposure to and abuse of drugs is trending younger, National Capital Treatment and Recovery Clinical Director Pattie Schneeman said in a recent panel.
“‘There’s nothing out there for adolescents.’ I hear it all the time,” says Schneeman, acknowledging that National Capital Treatment and Recovery, formerly Phoenix House, stopped serving children in 2015 because insurance reimbursements did not cover operating costs.
“If you have money, you can send someone to a posh program. You can pay for services,” she continued. “But if you are average, middle-class or a low socioeconomic family, you have no resources, and it is very sad and devastating to our communities.”
Arlington is seeing a rise in youth obtaining and using opioids, with an increasing number overdosing both on and off school grounds — or effectively detoxing in the Northern Virginia Juvenile Detention Center in Alexandria. In some cases, they are prescription, but in many others, they are buying illegally manufactured pills laced with the deadly drug fentanyl, from local gangs or through social media, police say.
The death of 14-year-old student Sergio Flores after a fatal overdose at Wakefield High School has driven teachers, parents and School Board members to call for more action and support from APS and Arlington County. Conversations since then have revealed the barriers throughout the continuum of care to actually treating kids.
For instance, school-based substance abuse counselors can only educate — they cannot provide treatment, according to School Climate Coordinator Chip Bonar, while appropriate treatment options can have a months-long waitlist. The division of the Arlington County Dept. of Human Services that works with children and behavioral health has 43% of its job positions unfilled and acknowledges there are few residential substance use treatment options.
It will be at least two years before VHC Health — formerly Virginia Hospital Center — opens its planned rehab facility. Two years is a long time, however, considering that less than a month passed between the death of Flores and a near-fatal teen overdose Wednesday.
To beef up treatment options, and expand services in the nearer term, Arlington is turning to settlements with manufacturers, distributors and pharmacies it alleges have been key players in the opioid epidemic. Just last week, the Arlington County Board agreed to participate in a proposed settlement against Teva, Allergan, Walmart, Walgreens, CVS and their related corporate entities.
The Board voted to approve the settlement in an unannounced vote at the end of a lengthy meeting.
“This is the latest in a series of settlements that are part of the larger National Opioid Settlement,” said county spokesman Ryan Hudson. “The total funding awarded to the County from these agreements continues to evolve as more settlements are finalized. All opioid settlement funding will be used on approved opioid abatement purposes.”
ART buses move through the Quincy site in the Virginia Square neighborhood (via BVSCA)
ART buses move through the Quincy site in the Virginia Square neighborhood (via BVSCA)
Aerial view of the temporary Arlington Transit (ART) bus facility at 1425 N. Quincy Street (via Google Maps)
The southern edge of the Quincy site parking lot and the fencing and landscaping separating it from some homes, shown in 2019 (via Google Maps)
(Updated at 11 a.m.) Arlington County is suing three residents and the Ballston-Virginia Square Civic Association over their attempt to stop buses from being parked near their homes.
The county charges that they used the Board of Zoning Appeals (BZA) process improperly to prevent the approval of a special use permit to allow 29 Arlington Transit (ART) buses to park on a county lot across the street from Washington-Liberty High School while a new ART bus facility is built in Green Valley.
The county says the BZA doesn’t have the authority to hear their case and, without an allegation of harm or potential harm not shared by their neighbors, the residents are not “aggrieved parties” and are thus improperly using the appeal process to block the county’s plans.
“The Applicants sought their appeals simply as a way to undermine the County Board’s authority and to prevent the County Board from approving a special exception use permit for the Subject Property, thereby weaponizing the stay required by Va. Code… and in effect usurping the legislative power of the County Board,” per the lawsuit.
But the residents, who live in two of the five homes on a ridge overlooking the parking lot, argue the county is suing them preemptively while running afoul of its own zoning ordinances. Further, they say the bus activity will seriously undercut their property values and quality of life and suggest the county should buy their homes.
The lawsuit says that one resident’s BZA appeal asked the body to “compel the County Board to purchase some of the Applicant’s properties.”
Both the county and the residents declined to comment to ARLnow on the ongoing lawsuit, set for a hearing in Arlington County Circuit Court later this month.
Arlington County bought the largely industrial site, also known as the Buck site after its previous owner, in 2015 for $30 million to serve a variety of needs.
Arlington Public Schools parked “white fleet” vans there and, as part of an agreement in 2022, the county moved the vans from a part of the site zoned for “light industrial” uses to another zoned for “mixed use,” and park the ART buses in the “light industrial” zone.
This violates an ordinance, a site plan and a deed of covenant governing the property dating to 1985, the civic association alleged in a letter to the County Board in May 2022. The letter says county staff made procedural and substantive missteps that should have invalidated the county’s special use permit application and subsequent action to abandon the right-of-way of a former street on the site.
The civic association alleges that this change came after the county already violated zoning ordinances related to parking and landscaping by conducting motorcycle maneuvering training and storing dumpsters in parking areas while, in landscaped areas, letting trees die and English ivy take over.
As for the new use, they say the noise is unbearable, emissions from the Compressed Natural Gas-powered buses are “toxic,” and vibrations shake nearby homes — leading to their properties becoming “unmarketable” and “uninhabitable.” The BVSCA posted the following video of an ART parking exercise on the site last year.
Residents say the county’s real estate office proposed reducing their property assessments by up to $190,000 and heard from four realtors who say they’d be reluctant to list these properties.
