An affiliate of local homebuilder Classic Cottages proposes building two side-by-side six-plexes at 4015 and 4019 7th Street S., bordering Alcova Heights Park and a couple of blocks north of Columbia Pike.
A neighbor fought back, filing an appeal with the BZA, which takes up appeals to any decisions or determinations made by the county’s Zoning Administrator.
Normally, residents go to the BZA to appeal decisions related to plans to build additions or add front porches; this appears to be one of the first appeals related to new Missing Middle developments.
In February 2023, before the Missing Middle ordinances were approved, Classic Cottages submitted a request to re-subdivide two properties in a “pipestem” configuration, where the boundaries of one property form a “pipe” around the other. After the Missing Middle or Expanded Housing Option (EHO) ordinances went into effect in July, Classic Cottages submitted permits to replace the current single-family home and circular driveway spread across the two lots with a pair of 6-plexes.
“Pipestem” lots are a rarity now because many years ago, they were so hated by the community that the Zoning Ordinance Review Committee got the county zoning ordinance amended to make pipe-stem developments more difficult, says Barnes Lawson, the attorney for Classic Cottages.
“The reason is that you had problems with driveways. You had houses behind houses. It was just not the ideal way in which to provide housing for our community,” he said.
The ‘pipestem’ lots in Alcova Heights (via Arlington County)
In her appeal, neighbor Kelley Reed argued that the permits were illegally issued. She contends the lots, created via subdivision, did not yet exist in county land records when the permits were issued. Also, she said, they do not conform with the 60-feet minimum width required for EHO developments and the EHOs would have to be put on portions of the lot that cannot be built on.
“This is not a pro- or anti-EHO case,” said Reed. “This case has ramifications far beyond EHO and regardless of use, as this case is about getting the math right. It’s about following the rules. It’s about not cherry-picking definitions. Please correct the staffs’ errors and reject the wrongly approved permits.”
Several neighbors joined the chorus, dwelling less on the math and more on how the project does not fit with the surrounding houses and would hurt the neighborhood.
Jamshid Kooros, who identified himself as a Missing Middle supporter, argued that building multifamily buildings on narrow, deep lots would make this project “the poster child of those who oppose the changes.” That has already come to pass, however, as the project figured into a recent presentation by Arlingtonians for Our Sustainable Future, a local group that has argued against the policy changes.
Others, including the president of Classic Cottages, came to its defense, arguing that residents are hijacking the purpose of BZA appeals to relitigate Missing Middle.
“In all the years we’ve been doing this — building houses all over the county — it never occurred to me that adjacent property owners could file BZA cases against one of our projects. It’s never happened before,” David Tracy, the president of Classic Cottages said. “This particular case seems to be more about the EHO policy itself and I would respectfully ask that, to the extent that it is the policy that’s being challenged, that there’s a proper venue — a larger court case that’s being handled right now.”
An office building with a leasing availability sign in Courthouse in December 2022 (via Google Maps)
Several measures designed to combat Arlington’s persistently high office vacancy rate are slated for discussion next month.
On the table are expanded opportunities for shared and offsite parking, as well as more lenient parking requirements for fitness centers. Officials are also set to consider whether to allow large media screens for outdoor entertainment in some business districts.
The Arlington County Board is scheduled to vote next month on whether to advertise requests to amend Arlington’s zoning ordinance to make these changes. County Manager Mark Schwartz told the Board last week he hopes that these and other ordinance changes can make it easier for Arlington businesses to get started and grow.
“Very often you’ll have a business that, if it could take advantage of parking very near to it, would be able to move ahead,” he said on Tuesday.
Schwartz noted that fitness centers have particularly strict parking requirements.
Large media screens, meanwhile, could assist with “placemaking” in certain commercial business districts. Currently, it’s an exceptionally arduous process to get large outdoor displays approved.
The county also plans to pursue bigger-picture ordinance changes, Schwartz said. Later this year, the Board is expected to discuss guidance on office-to-apartment conversions as well as potentially simplifying the major and minor site plan amendment process, which landowners must navigate when repurposing or renovating large development projects.
Within the next six months, Board members are also expected to consider plans to facilitate change of use within existing buildings and adopt a more flexible ordinance around signage.
Other possible ordinance changes concern storage uses at office buildings as well as the process for converting underutilized parking spaces.
“We promised we’d be coming to you with sort of a regular rhythm of items, and starting next month we will do that,” Schwartz told officials.
Arlington’s office vacancy rate is currently just over 22%, the county manager said — up from 21.5% in October. Arlington Economic Development predicted in October that this number would continue to rise, as about a quarter of Arlington office space is at risk of sustained vacancies.
The county has scrambled to find uses for its office buildings since the pandemic, passing several zoning changes on a compressed community engagement timeline. Recent adjustments allow urban farms, breweries and podcast studios to move into older office buildings without seeking special permissions.
Despite these efforts, a shrinking commercial base has left Arlington residents shouldering a growing portion of the county’s budget. Historically, the commercial and residential tax base split the budget 50-50 but in recent years, this has shifted to a 55-45 split.
Board member Matt de Ferranti last week called office vacancies “a huge challenge” and praised ongoing efforts by county staff.
“I think it is important to reiterate strong support for the direction we are going in,” he said.
Screen captures from Arlingtonians for Our Sustainable Future’s riff on the ’12 Days of Christmas’ (via ASF/YouTube)
Screen captures from Arlingtonians for Our Sustainable Future’s riff on the ’12 Days of Christmas’ (via ASF/YouTube)
Screen captures from Arlingtonians for Our Sustainable Future’s riff on the ’12 Days of Christmas’ (via ASF/YouTube)
It won’t ever beat “All I Want for Christmas is You” on the charts but a new Arlington-specific Christmas song is out, recorded by the group that was on the opposition side of several land-use flashpoints this year.
Arlingtonians for Our Sustainable Future, a neighborhood group that has advocated against everything from Missing Middle to a new planning document for Langston Blvd, dropped an alternative “12 Days of Christmas” this week.
It mocks the policy changes and projects Arlington County undertook this year — the same policies for which other local groups spent the past couple of years advocating.
The short song, brought to you by the same people who brought tombstones for the “Arlington Way” to the final Missing Middle hearing, reiterates criticism ASF raised regarding heights, environmental impacts, governance or displacement and other predicted outcomes of growth.
And the kicker? A tribute to the paused second phase of Amazon’s second headquarters in Pentagon City: PenPlace, best known for the proposed marquee glassy double-helix building.
The lyrics are below.
On the 12th day of Christmas, my true love gave to me:
12 story towers,
11 displaced tenants,
10 YIMBYs leaping,
Nine acres bulldozed,
Eight vacant buildings,
Seven cars a-swimming,
Six-plex a-zoning,
Five special GLUPs.
Four homeless birds,
Three lawsuits,
Two lame ducks,
and a PenPlace that never will be.
While this take on the “12 Days of Christmas” had a sardonic edge, the proverbial 10 YIMBYs leaping do see this year as one to celebrate, kicking off with the ratification of Arlington’s Missing Middle policies.
In late 2023, YIMBYs of Northern Virginia saw the fruits of their advocacy in the passage of similar zoning ordinances in Alexandria. In between, organization members were busy responding to engagement opportunities on development projects moving through Arlington County approval processes.
“We are proud to have joined with a diverse set of community advocates to end exclusionary zoning in Arlington and Alexandria, reduce burdensome parking mandates in Fairfax County, support new market-rate and committed affordable apartment buildings, and elect forward-looking leaders across the region who prioritize making their jurisdiction a more inclusive, sustainable, and affordable place to live,” the group said in a statement.
The group invited anyone who shares its “Yes in My Backyard” values to celebrate the New Year on Jan. 14, 2024 from 5-7 p.m. at Makers Union pub in Pentagon City.
JBG Smith is asking Arlington County to relieve it of restrictions that it says present serious obstacles to putting up new rooftop signs.
The real estate company is specifically asking the county to remove language restricting the number and size of signs allowed on two office buildings in the Crystal Park development it owns in Crystal City. The proposal is set to go before the County Board this Saturday.
Not everyone is comfortable with the language change, however. Two area civic associations told the county that the restrictions should stay, fearing this would pave the way for more signs going forward.
Currently, Crystal Park offices are governed by a document that “ties certain approved signs to specific tenants, some of which no longer occupy the premises, limits installation of rooftop signs to a single, prescribed rooftop sign and contains outdated requirements for approved signs,” land-use attorney Kedrick Whitmore wrote in an application to the county.
This hamstrings JBG Smith, he continues.
“Collectively, these restrictions complicate the ability to re-design existing signage for new tenants and present obstacles to achieving new rooftop signage,” Whitmore wrote.
JBG Smith is requesting the county remove restrictions for Crystal Park 1 and 3 office buildings, located at 2011 Crystal Drive and 2231 Crystal Drive. Instead, it asks the county evaluate new signage only in accordance to the Arlington County Zoning Ordinance.
In 2012, the zoning code was updated, providing new clarifying parameters for signs and only requiring staff review. This change did not apply to a smattering of older developments throughout Arlington governed by more restrictive agreements.
County staff say this change would make it easier for JBG Smith to compete for tenants.
“As commercial buildings mature and market themselves for new tenants, it is imperative that building owners be able to avail themselves of sign permissions available to other similar buildings so as to not place themselves at a competitive disadvantage,” the report said.
The county notes that other building owners have made similar requests and had the support of staff, as this “allow[s] for fair administration of building signage.”
The report says Crystal City and Aurora Highlands civic associations told the county they do not support JBG Smith’s request because it could allow for more signs.
The other reason, leaders told the county, is that the current provisions were decided through negotiated community benefits during the site plan review process.
“The community accepted less in the way of other benefits to limit the number and size of signs, so they believe that changes to allow more signs would not be fair,” the report says.
The county says it found no evidence that the more restrictive language was related to community benefit packages.
“Rather these were common site plan conditions approved in the absence of comprehensive sign provisions of the [zoning ordinance], which are now in place,” the report said.
Eric Cassel, the president of the Crystal City Civic Association, told ARLnow this morning that, as of now, the issue is “relatively minor.”
“JBGS downgraded the proposal significantly and we are not spending resources to oppose it,” he said.
Advanced Towing tow truck outside the company’s lot in Ballston (staff photo by Jay Westcott)
(Updated at 8:45 a.m. on 7/4/23) Arlington County says it is enforcing some wayward fencing and gates in a public alley abutting Advanced Towing and American Service Center.
It all started because of complaints about tow trucks for the Ballston company parking in front of “the most famous fire hydrant in Arlington County,” so named by public safety watchdog Dave Statter.
Over the last year, an anonymous Twitter account dedicated to the hydrant has made Freedom of Information Act requests to ascertain the alley’s ownership and highlight the county’s responsibility for overseeing how it is used. This inquiry sparked several complaints about illegal parking last fall.
This week, the information requests unearthed an update: the county said it owns the 5th Road N. alley, off N. Quincy Street in Ballston. It said it is working with Advanced Towing to remove a fence and American Service Center, which operates the Mercedes-Benz dealership, to remove the gates.
The owner of the “Advanced Towing Fire Hydrant” Twitter account, says highlighting the zoning code issues was not because of an ax to grind with the towing company. Instead, it was to highlight the degree to which enforcement decisions lie with the Office of the County Manager.
“You shouldn’t have to crowdsource outrage on Twitter to get the government to enforce existing parking regulations,” the account owner, who wants to remain anonymous, told ARLnow.
— Advanced Towing Fire Hydrant (@AdvTowHydrant) July 31, 2023
In a statement, county spokesman Ryan Hudson confirmed the enforcement would begin and traced the move back to citizen complaints.
“Zoning started enforcement due to the fact that these two businesses are encroaching on public land,” he says. “The genesis was a complaint about illegally parked cars in front of the fire hydrant. That led us to become aware the fence didn’t meet the clearance of 3 feet and didn’t have Zoning approval.”
The fire hydrant account posted about the wayward fence earlier this year.
A spokesperson for Advanced Towing confirmed the company is complying with the request.
“We have been in touch with the County and our fence will be open tomorrow,” an Advanced Towing spokesperson said in an email, adding that the company never put the fence up and it has been there for well over 20 years.
Arlington County approved a certificate of occupancy for the tow company but that did not amount to permission to occupy the alley, according to a copy provided to the Advanced Towing Fire Hydrant Twitter account.
While the company can occupy the alley, Hudson says the fence has to be moved back because it is encroaching into a 10-foot wide public alley. Fences on private property are allowed with proper approval — just not in a public alleyway.
“The County, not adjacent property owners or tenants, will determine how to operate and maintain the public alley,” the county spokesman said.
The alley adjacent to the American Service Center property, meanwhile, is a public alley not owned by the auto repair company.
“Gates need to remain open because they are obstructing public use of and access to the public alley,” Hudson said.
A spokeswoman for American Service Center told ARLnow she was directed “not to discuss anything with anyone.”
The RiverHouse apartments at 1111 Army Navy Drive (staff photo)
Arlington County is considering changes to its zoning ordinance to encourage the construction of more senior care facilities.
The proposed changes include increasing the maximum building heights for elder care facilities in Pentagon City and allowing the construction of elder care facilities along the Columbia Pike corridor, per a county report.
The report says these changes are needed to ensure the existing zoning code supports the vision of the Pentagon City Sector Plan, adopted last year. During an initial review of proposed redevelopment projects, staff said they identified inconsistencies between the two related to building height codes for elder care facilities.
To address these issues, staff have proposed an amendment clarifying where elder care facilities can be built in areas of Pentagon City that are zoned for multifamily uses — and how tall these buildings can be.
The amendment targets the part of the neighborhood within a “coordinated redevelopment district” within the boundaries of 16th Street S. to the south, S. Lynn Street to the west, Army Navy Drive to the north and S. Eads Street to the east.
This appears to map onto the site of the RiverHouse complex, which is set to be redeveloped with new apartments, including senior housing. The report does not mention this planned redevelopment specifically but it does note that recent redevelopment plans revealed the inconsistencies staff are trying to resolve.
The Pentagon City Coordinated Redevelopment District and where RiverHouse is located within it (via Arlington County, edited by ARLnow)
Doing this analysis, staff discovered that existing ordinances excluded the construction of additional elder care facilities along Columbia Pike, per the report.
To resolve this issue, the report says the amendment also “introduces assisted living facilities, independent living facilities, nursing homes, and continuing care retirement communities as allowable forms of residential use” on Columbia Pike.
The amendment comes several years after the county initially proposed the possibility of opening up some areas zoned for multi-family and commercial buildings to senior centers in 2019.
Some members of the Zoning Committee of the Planning Commission and Crystal and Pentagon Cities Council expressed concerns about whether increasing the height of elder care facilities would complicate evacuation in the event of an emergency, according to the county report.
Other members argued there are a wide range of examples of high-rise elder care facilities, as close as Tysons Corner.
Staff said any new construction would still need to comply with “appropriate” building and fire code standards. Staff did note in the report that they plan to conduct a comprehensive analysis of permitted heights for elder care facilities in other zoning districts and special planning areas.
“Clarifying zoning language… will ensure buildings with elder care uses can be properly considered throughout the County and redevelopment in [multifamily]-zoned properties and property owners/developers can propose uses consistent with recommendations adopted in earlier planning efforts,” the report said.
These changes are set to be discussed during a public hearing by the Planning Commission on Sept. 11 and the County Board on Sept. 23.
A delivery driver on foot in Rosslyn (Staff Photo by Jay Westcott)
Chefs in the La Cocina, now Kitchen of Purpose (courtesy photo)
“Ghost kitchens” on the parking lot eyed for redevelopment near the Whole Foods in Clarendon (staff photo by Jay Westcott)
In another bid to encourage business growth, the Arlington County Board has made it easier to open shared kitchens and catering and food delivery operations.
On Saturday, the Board voted to amend the zoning ordinance to allow these uses by right in mixed-use, commercial and industrial zones throughout Arlington County. The changes streamline the regulatory approval process for several food-related uses, according to a county report.
“The outcomes of expanding food delivery to a by-right use support small business resilience by relieving businesses of unnecessary work,” the report said. That includes going before the County Board to seek approval for each use.
The changes are part of a flurry of approvals in the last 14 months to allow more uses by-right in these zoning districts. So far, the County Board has greenlit uses such as breweries, micro-fulfillment centers, podcasting studios, indoor pickleball and other emerging businesses to operate where they previously could not set up shop or needed special permission to do so.
All these updates happened in quick succession because County Manager Mark Schwartz debuted a faster zoning approval process that streamlined community engagement. The intent was to help Arlington respond quickly to changing market conditions and, ultimately, tackle the high office vacancy rate.
Food service was the next candidate for an update because, the report says, local regulations treated delivery operations like it was still 1988. (The iPhone debuted in 2007.)
Per the report, the zoning ordinance “does not account for the present-day popularity of modern food delivery services,” requiring food delivery not to exceed 20% of a restaurant’s sales.
Restaurants were relieved of that kind of provision — borne from a concern about delivery vehicle congestion — during the pandemic, the report said.
Food delivery has become a permanent part of how Arlingtonians eat, even after Covid dining restrictions lifted. This new way of doing business was under threat by the expiration of the Covid-era Continuity of Governance ordinance that relaxed delivery regulations.
The changes approved on Saturday, then, came in the knick of time for new and existing businesses, as the ordinance is set to expire in August — meaning the county would have reverted to 1988 delivery standards.
Businesses would have had to obtain County Board approval to continue delivery, had the Board voted down the zoning change. Some already did — Foxtrot in Rosslyn, for instance, went before the Board earlier this year to continue delivering beverages, ready-made food and grocery items.
Saturday’s vote also is helping another player in the app-based food delivery ecosystem: trailer-based ghost kitchens, the kind of which you might see in a parking lot between Clarendon and Courthouse. Ghost kitchen operators will no longer need certain permits to continue cooking.
Units in the Marbella Apartments set for renovation (via Google Maps)
Units in the Marbella Apartments set for renovation (via Google Maps)
An aerial view of the Marbella Apartment buildings set for renovation (via Arlington County)
A rendering of the new Marbella Apartments to be constructed along N. Pierce Street (via Arlington County)
Renovations to the Marbella Apartments in the Radnor-Ft. Myer Heights neighborhood (via Arlington County)
Renovations to the Marbella Apartments in the Radnor-Ft. Myer Heights neighborhood (via Arlington County)
A collection of garden apartments near Rosslyn are set to be renovated this year.
On Saturday, the Arlington Partnership for Affordable Housing received the last approvals it needed to repair 62 committed affordable units across six garden apartment buildings in the Radnor-Ft. Myer Heights neighborhood.
These renovations are part of a two-phase redevelopment project of The Marbella Apartments along N. Queen Street near Route 50. Two 12-story, 100% affordable buildings will replace a three-story, garden-style complex north of Joint Base Myer-Henderson Hall while the other 62 units will be renovated.
These units will get updated windows and façades as well as interiors, new handrails and new wells that protect windows that are level with the ground from soil, known as window wells.
The project had nearly cleared the last design and permitting stages when it was discovered that the property does not conform with present-day Zoning Ordinance regulations, per a county report. That meant some of its repairs, including the window wells, could not proceed by-right.
The apartments were built by-right in the 1940s, a decade before the ordinance was enacted. The buildings now do not meet the ordinance’s requirements for how close a property could be to the street nor parking and density regulations.
Arlington County staff and the applicant argued against trying to make the buildings conform with current zoning rules.
“Bringing the existing buildings into conformance with current parking and setback standards would negatively impact existing units, mature trees, and open space, thus compromising the goals of affordable housing preservation and the historic qualities of the garden apartment property,” the report said.
Instead, on Saturday, the Arlington County Board designated the property with the Marbella Apartments as a “Voluntary Coordinated Housing Preservation and Development District.”
The property joins some eight other buildings in Arlington, the report says. They received this designation between 1992 and 2011.
The Board also approved a related use permit. These two moves allow the planned structural changes to the apartments without making them conform to zoning ordinances.
The buildings consist of mostly 1-bedroom apartments, with some studio, 2- and 3-bedroom units. They are available to people earning a mix of incomes up to 60% of the area median income.
Neither the report nor application materials indicated when renovations would begin.
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 back of the house set to get a sunroom (courtesy photo)
The deck set to be replaced with a sunroom (courtesy photo)
Thomas Peters and his wife Natalie found the perfect home in Arlington — one that already had an elevator that Thomas would need to get around in his wheelchair.
It did have one downside, however. The trees on his neighbor’s property, which is at a higher elevation, block natural light from reaching his backyard.
That poses a problem for Peters, whose spinal cord injury — sustained while swimming 10 years ago — left him paralyzed and made it harder for his body to regulate his temperature and stay healthy. The need for accessible sunlight became obvious during the pandemic when he was stuck in his apartment.
“UV light is the best disinfectant and it is hard to get in the wintertime,” he said. “I knew I wanted a place where I could live in the sunlight.”
So Peters commissioned an architect to draft plans for a sunroom. Before those could be realized, however, he learned he would have to get special permission to build it because the home already exceeds the allowable size for a main building on a 10,000-square-foot lot, according to the zoning code.
The last 15 months became a winding legal process that frustrated Peters at times.
“My journey of living with a disability has been one of losing lots of agency,” he said. “I’m a very go-getter type of guy. One of the most frustrating things about living with a handicap is that there are things you just can’t overcome. It’s especially frustrating when you can’t overcome things in your own home after pursuing the dream of independent living.”
Last Wednesday, however, his vision for the property eventually prevailed. He he got the go-ahead for the sunroom when the Board of Zoning Appeals (BZA) unanimously greenlit a variance for the site. The citizen commission considered not just local zoning ordinances but also the Americans with Disabilities Act and ultimately acted against a recommendation by county staff to deny his request.
ARLnow reached out to some of the five BZA members but did not hear back before deadline.
Barnes Lawson, the lawyer for Peters, said last week’s decision was a rare one that resolved a cordial disagreement with the county over what constitutes a reasonable accommodation for a disability.
“Zoning Division staff does not believe that the applicants have proven an explicit connection between the requested size of the proposed improvements and their ability to remedy a hardship, as they have not shown that the benefits provided by the proposed conservatory could not also be provided elsewhere in the dwelling,” according to a county report.
In a county report, staff emphasized that the Peters home already exceeds the maximum lot coverage allowable for a main building on a lot of its size. The county offered Peters two paths forward that would not require a variance.
He could build a front porch of at least 60 square feet and earn the right to extend the footprint of his house by 3%. The zoning code encourages the construction of front porches — and, as another example, discourages garages near the front of the house — as a way to promote neighborly interactions.
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.
