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Residents sue Arlington County over ‘missing middle’ zoning change

Residents attend a public meeting opposing “missing middle” housing in Arlington in January. (Craig Hudson/For the Washington Post)
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A group of Arlington single-family homeowners sued local lawmakers Friday over a controversial zoning change that will allow more “missing middle” housing in the Northern Virginia county, alleging that these elected officials failed to adequately study the impacts of such a policy before approving it last month.

The 162-page lawsuit, filed in Arlington County Circuit Court, argues that the county board and planning commission did not comply with Virginia state code — or adhere to repeated requests from the plaintiffs — to make sure the zoning amendments do not negatively impact this suburban county just across the river from D.C.

County board members voted unanimously last month to enable the construction of buildings with as many as four — and in some cases six — units in areas that had for decades been set aside for only single-family houses, though it allows no more than 58 of those buildings to be built or converted each year.

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  • "Missing middle” housing is a term that refers to small multiunit residential buildings like townhouses, duplexes and garden apartments.
  • It covers a range of housing types that fit into the “middle” between detached single-family houses and high-rise apartment buildings — in terms of scale, form and number of units.
  • Local laws have made it difficult or impossible to build this type of housing in many neighborhoods. That’s why advocates say it’s “missing."
  • Indeed, many suburban neighborhoods in the United States were developed under zoning rules that allow for only one house with a yard on each lot.
  • This is sometimes known as “single-family zoning.”
  • A growing list of governments, including Minneapolis and Oregon, have in recent years voted to roll back their zoning rules and make it easier to build “missing middle” housing.
  • Several localities in the D.C. area are following suit, with Arlington County leading the pack.
  • Changes like Arlington’s missing middle plan would still allow for the construction of single-family houses, which take up most of the county’s residential neighborhoods.
  • But in Northern Virginia and other communities around the country, this idea has generated a heated debate — one that has sometimes dominated local elections.
  • Many longtime homeowners say more homes and more density could ruin their single-family neighborhoods.
  • They worry that “missing middle” will crowd schools, clog sewers, remove trees and make it harder to find parking.
  • Skeptics also say the idea will not create housing for residents being priced out — and will only benefit developers instead.
  • Advocates who support missing middle say this concept will fix racist zoning policies and create more affordable housing options.
  • New duplexes or townhouses will still be expensive, they say, but will still cost less than single-family houses.
  • That will add supply to the real-estate market and bring down skyrocketing housing costs.

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“Both in terms of substance and procedure, the amendment was defective and outside the authority that localities like Arlington have to amend zoning ordinances,” Gifford R. Hampshire, a lawyer for the homeowners, said in an interview. “They have to do the required studies to make sure the amendments don’t have negative impacts on the county and its residents. … Yet the County Board rushed this to completion.”

The policy change, officially known as “Expanded Housing Options,” mirrors similar zoning changes that have been adopted in a growing number of localities and at least four states — though not without generating intense debate and controversy.

As in those other communities, some Arlington residents argued that it would reverse exclusionary policies once meant to keep out people of color and create less-expensive housing types as prices continue to skyrocket in this wealthy county. (The median home sold in Arlington last month for $650,000, while the median single-family house was just about twice as expensive.)

But others in the county, including some of the 10 plaintiffs, testified at marathon public hearings that adding more density in what are now suburban areas would crowd schools, clog streets and storm drains, eat up parking and cut down trees. Instead of boosting affordability, they claimed it would force people out.

Arlington County spokesman Ryan Hudson said the county government cannot comment on active litigation. Arlington County Board Chair Christian Dorsey (D) declined to comment, and David Barrera, a spokesman for the five-member county board, did not respond to a request for comment.

Planning commission chair Devanshi Patel said she had not yet read the lawsuit and was unable to comment. (The Arlington planning commission is an advisory body whose votes are not binding and whose members are appointed by the county board. Its members had voted to recommend that the board approve the “missing middle” zoning change, a required step before the board’s vote itself.)

The 10 plaintiffs — Marcia L. Nordgren, Norman Tyler, Alexander Mackenzie, Robert P. and Mona C. Parker, Katherine Pernia, Margaret P. Fibel, Ricardo J. Rozada, Mabel Gabig and Eric Ackerman — include a real estate agent, several lawyers and others who own single-family houses across the county. Mona C. Parker, who writes under the name Mona Charen, is a conservative pundit and syndicated columnist who once drew headlines for her criticism of former president Donald Trump.

Pundit Mona Charen blew up CPAC. Even she was stunned by the vitriol that ensued.

According to the lawsuit, nine of them own property in the northern half of the county — an area that generally contains more single-family houses and larger lot sizes where the policy is expected to have its greatest effect.

Per a vote by county lawmakers last month, developers and home builders can begin to apply for permits to build “missing middle” housing starting on July 1.

The lawsuit, which asks a judge to stop the county from granting those permits or allowing the zoning change from going into effect, alleges that the county board came up short on several aspects: It failed to initiate the zoning change as required by law; to properly advertise the changes; or to conduct economic studies and other factors required by state code and creates a process that unlawfully delegates legislative authority.

The suit also claims that the board violated the Virginia Freedom of Information Act (FOIA) by failing to publish related materials at the same time that board members and planning commissioners received them and violated state law by enacting an “illusory band aid” in rules around shade trees at new developments.

The Rev. Ashley Goff, a leader of Virginians Organized for Interfaith Community Engagement (VOICE), which advocated for the zoning change, said the lawsuit was “a predictable play out of the NIMBY playbook,” using an acronym that stands for “Not In My Backyard.”

Contrary to claims that the county did not properly advertise the change, she said, the March vote followed several days-long hearings and several years of outreach and public engagement from county planners and elected officials.

“We have an absolutely dire housing crisis. The status quo is a recipe for disaster,” said Goff, a pastor at Arlington Presbyterian Church. “No lawsuit can undermine that this was the right decision to make to create change for the present and the future of Arlington.”

Still, such suits — or the threats of them — have undone policies in some instances. A turned-over city council in Gainesville, Fla., voted in February to reverse a zoning change similar to Arlington’s after drawing warnings from state officials in the administration of Florida Gov. Ron DeSantis (R).

And just after the Arlington board approved the “missing middle” amendment, the Virginia Supreme Court voided a 2021 zoning ordinance update in nearby Fairfax County because it occurred during a virtual meeting and not in person.

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