SUIT RE: END OF SINGLE-FAMILY ZONING IN ARLINGTON
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January 16, 2024 Update:
Missing Middle case headed to trial after another County loss in court: Donate today to support the litigation to have the County's Missing Middle Housing/Expanded Housing Options zoning declared void - via GoFundMe or:
• Check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
• Venmo - Search: Neighbors For Neighborhoods.
Read updates below for details of the litigation.
Questions: [email redacted]
Read today's ArlNow story about the County's recent loss in court:
https://www.arlnow.com/2024/01/16/arlington-county-loses-pretrial-appeal-in-missing-middle-suit/#more-311211
FOR IMMEDIATE RELEASE: JANUARY 11, 2024
Homeowners win again: Judge denies County’s motion to appeal his ruling that plaintiffs have standing to sue over Missing Middle Housing/Expanded Housing Options (MMH/EHO) zoning
Today, Judge David Schell denied the County’s motion that he certify an interlocutory appeal (appeal now instead of after the trial commencing on July 8 has concluded) on the issue of standing.
The plaintiffs, 10 Arlington homeowners, would suffer “substantial harm” from the construction of multi-family buildings, the judge stated, if he were to grant the County’s motion, which could delay the trial for two or more years while being heard by Virginia’s appellate courts.
He stated that it would not be in either party’s interest to delay the trial for years, noting that if the County were to lose at trial, developers might have to tear down the buildings they construct while the case is pending.
Judge Schell previously ruled that the plaintiffs have “a fundamental right” to challenge “a rezoning of their property that they allege was done incorrectly or in violation of the Code of Virginia,” noting that “the nature of their ownership” changed when their property was rezoned.
The primary allegation in the lawsuit is of a violation of the Code of Virginia is the County’s failure to conduct studies of the impact of increased density on infrastructure, such as roads, stormwater, and schools before its adoption of its MMH/EHO zoning ordinance.
Perhaps the County did not conduct such studies because its consultant report estimated that MMH/EHO development would be limited to 17-21 lots per year and would be dispersed across the County.
But the reality is playing out very differently. In the first six months alone of MMH/EHO applications, 26 properties have been approved for multi-family development, and these are concentrated in the smallest residential districts: R-5 and R-6. Most of the approved units will be in 6-plexes, the most dense housing type under MMH/EHO zoning.
The County Attorney, who argued today’s motion, cast doubt on whether developers will begin construction of these multi-family buildings while the lawsuit is pending.
Neighbors for Neighborhoods Litigation Fund, LLC (NfN) was created to provide funding for the litigation to have Arlington County’s MMH/EHO zoning ordinance declared void.
“Today’s 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 Dan Creedon with NfN. He added, “The judge recognized that the County’s delay tactics would harm the plaintiffs as MMH/EHO buildings would be built pending an appeal.”
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FOR IMMEDIATE RELEASE: NOVEMBER 16, 2023
Judge Sets Trial Date in Missing Middle Housing Case.
County Claims That its Zoning Decision Should not be Reviewed by the Court.
Today, Judge David Schell set the date for a five-day trial, commencing July 8, 2024 trial date in the case against the Arlington County Board seeking to invalidate Missing Middle Housing/Expanded Housing Options (EHO) zoning.
In his October 19 ruling, Judge Schell denied the County’s efforts to have the case dismissed, stating repeatedly that the plaintiffs – 10 Arlington homeowners – had alleged direct violations of Virginia law in the County’s process of adopting EHO zoning.
During the September hearing that led to that ruling, Arlington’s County Attorney argued that the judiciary should not question the County Board’s actions in adopting EHO zoning and that the lawsuit was “improper” and “a subversion of the democratic process.”
Arlingtonians for Upzoning Transparency (AFUT) wrote to the County Board asking it to disavow the County Attorney’s statement. Instead, Board Chair Christian Dorsey doubled down in a November 3 response to AFUT, stating that the Board’s EHO decision “is wholly within the purview of the local legislative body, which has the constitutional authority to make county-wide 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.”
Judge Schell also ruled on October 19 that the plaintiffs’ rights will be affected by the ruling in this case and, therefore, have standing to sue the County. The Judge stated that when the plaintiffs’ property was rezoned from single-family to multi-family, “the nature of their ownership was changed.” He further stated that it “is difficult to understand how a property owner whose property has been rezoned would somehow not have standing” to challenge the rezoning.
Today, the County notified the Court that is will seek an interlocutory appeal of the Judge’s standing ruling and a January 11 hearing date was set. The plaintiffs’ attorney, Gifford Hampshire, indicated that he will oppose the County’s effort for an appeal at this stage of the litigation. If Judge Schell grants the County’s motion after the hearing, the County then would request that the Virginia Court of Appeals consider the standing issue. The Court of Appeals has discretion whether or not to accept the case on standing.
Dan Creedon, speaking for Neighbors for Neighborhoods Litigation Fund, LLC, stated today: “The County’s hubris in claiming that the courts don’t have a role in reviewing EHO zoning is astonishing.” He added, “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.”
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PLEASE DONATE TODAY!
For more information: [email redacted]
OCTOBER 31, 2023 UPDATE
WHY ARE ARLINGTON DEVELOPERS SPOOKED THIS HALLOWEEN?
Because the lawsuit to declare EHO zoning void is going to trial!
Developers rushed to apply for EHO permits starting on July 1, the first day that Arlington County accepted applications for multi-family buildings on single-family lots.
Per the County website, in July and August, there were 26 EHO applications. But in September and October, when there have been court hearings and the Judge’s ruling that the case is going to trial, there have been only 6 EHO applications. No applications were received last week.
According to the Arlington Patch, Charles Taylor, acquisitions manager of Classic Cottages, said recently that some developers are pausing their plans to build EHO housing “to see how the lawsuit plays out.” But if the lawsuit fails, Taylor said it will “be full steam ahead” for developers.
WHAT HAPPENS NEXT?
The first phase of the litigation was filing the lawsuit in April 2023, beginning discovery (the process of gathering evidence through depositions, requests for documents, etc.), filing motions, responding to the County’s motions, and arguments before Judge Schell.
At a hearing on November 16, the judge will set a trial date – likely months in the future.
The second phase of the litigation is conducting more discovery and preparing for trial. This is a time-consuming and expensive part of the process. Expert witnesses will be engaged, more depositions will be taken, along with other methods to prove the case that the County did not follow the law in adopting EHO zoning, including that no studies were done of the impact of this increased density.
WHAT CAN YOU DO?
Prevent developers from going “full steam ahead” on EHO multifamily buildings.
Please make a donation today to help fund this second phase of the litigation: discovery and trial preparation. The legal team is led by Gifford Hampshire of Blankingship & Keith, who was recently named a top zoning/land use attorney in Northern Virginia by Arlington Magazine.
As always, you can donate via GoFundMe or:
• Check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
• Venmo - Search: Neighbors For Neighborhoods.
OCTOBER 19, 2023 UPDATE
A Huge Win for Arlington Residents:
Judge Denies County’s Motions to Dismiss MMH/EHO Litigation: Case Going to Trial on Six of Seven Counts in the Complaint
PLEASE MAKE YOUR DONATION TODAY TO FUND THE TRIAL TO HAVE EHO ZONING DECLARED VOID
Today, a judge appointed by the Virginia Supreme Court ruled in favor of the ten plaintiffs who are suing the Arlington County Board over its Missing Middle Housing/Expanded Housing Options (EHO) zoning amendments. Retired Fairfax Circuit Court Judge David Schell denied the County’s motions to dismiss the lawsuit and the case will proceed to trial on six of the seven counts alleged. The only count that will not go to trial relates to whether the County shared documents in accordance with the Virginia Freedom of Information Act.
The judge was not persuaded by the Arlington County Attorney’s claim at the September 19th hearing that the lawsuit is “improper” and “really a subversion of the democratic process.” In fact, Judge Schell stated that 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. 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.
Neighbors for Neighborhoods Litigation Fund, LLC has provided financial support for the litigation. One of its members, Dan Creedon, commented today: “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. The judge’s ruling recognizes that the plaintiffs – all Arlington homeowners – get the opportunity to make their case at trial. This is the democratic process at work.”
The next hearing in the case will be November 16, when the judge will set a trial date.
Donations can be made via
• GoFundMe;
• Check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
• Venmo - Search: Neighbors For Neighborhoods.
Also today, a developer admits that EHO permit applications are likely to slow due to the lawsuit. As reported in ArlNow:
"The status of the lawsuit may impact how many people file permits, according to Charles Taylor, the acquisitions manager for Arlington-based developer Classic Cottages, which has five EHO permits in-hand. He noted the initial flurry of applications possibly trailed off due to the lawsuit. 'I would imagine there are a lot of people who are kind of waiting to see what happens with the litigation,' he said during the Northern Virginia Association of Realtors webinar."
Read the full ArlNow story here: https://www.arlnow.com/2023/10/19/new-missing-middle-lawsuit-allowed-to-move-forward/#more-306183
OCTOBER 3, 2022 UPDATE
County Attorney needs a lesson on the Constitution: Seeking redress in the courts is a cornerstone of democracy.
The County Attorney argued that the plaintiffs’ lawsuit was “improper,” claiming that the suit is about citizens asking the judiciary to overturn a legislative decision made after “all the work that went into drafting and hearing from the public.” She went on to say that this was “a subversion really of our democratic process.” Transcript, page 12.
September 19th Court Hearing Transcript:
https://acrobat.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3A3b59fc92-8cfd-30ca-a54f-2ace2b85efff
SEPTEMBER 20, 2023 UPDATE
COUNTY ATTORNEY CALLS LAWSUIT A “SUBVERSION OF OUR DEMOCRATIC PROCESS,” claiming that the plaintiffs are suing over whether EHO/MMH is “a good idea.”
Contrary to the County Attorney’s assertion that the case is a policy dispute, Judge Schell heard legal arguments for hours yesterday about the plaintiffs’ claims that the EHO/MMH zoning lacked proper studies and is arbitrary and capricious, bearing no reasonable relationship to public health, safety, or the general welfare, as required by state law.
Additional counts in the lawsuit claim that the zoning amendment process was not initiated by a proper Planning Commission motion or County Board resolution; that the zoning amendment was not properly advertised; that the EHO cap is a special exception to the zoning regulations and requires County Board review of applications; and that the County Board failed to share with the public documents that were furnished to it about EHO – all contrary to State law.
The County Attorney suggested that studies of EHO/MMH zoning were not needed because “County staff aren’t just people off the street. They have degrees.” Essentially, she argued: “trust us.”
During the September 19th hearing, the County Attorney also referred to the EHO/MMH zoning amendments that the Board advertised last March as “an amorphous blob.” This admission supports the plaintiffs’ claim that the County did not advertise the zoning amendments that it was considering, which had 3,840 permutations, with sufficient specificity.
SEPTEMBER 19, 2023 UPDATE
Attorney Gifford Hampshire of Blankingship & Keith made powerful arguments today on behalf of the 10 homeowners who are plaintiffs in the case to void the County’s EHO/MMH zoning ordinance. Retired Fairfax Circuit Court Judge Richard Schell, appointed by the Virginia Supreme Court to hear this case, listened to hours of arguments and testimony of one of the plaintiffs.
The Judge will issue his opinion on the County’s motions to dismiss the case in court on October 19th at 10:00 a.m. If the plaintiffs are successful, the case will move forward to trial.
Today’s ArlNow article about the hearing is here:
https://www.arlnow.com/2023/09/19/new-judgment-in-missing-middle-lawsuit-likely-one-month-away/#more-303951
SEPTEMBER 19, 2023 UPDATE
FOR IMMEDIATE RELEASE: SEPTEMBER 19, 2023
Homeowners get their day in court challenging the County’s Expanded Housing Options (EHO)/Missing Middle Zoning
Neighbors for Neighborhoods Litigation Fund, LLC (NfN) was created to provide funding for the litigation to have Arlington County’s EHO/(Missing Middle Housing) MMH zoning declared void.
NfN has demonstrated its broad-based support, receiving hundreds of donations from residents across Arlington. As a result, the well-respected firm of Blankingship & Keith has filed a 162-page complaint against the County Board, and filed motions and responses to the County’s pleadings - all on behalf of 10 Arlington homeowners who are the plaintiffs.
NfN donors know that:
• EHO/MMH is not affordable for low- or middle-income residents;
● EHO/MMH allows by-right development, with no requirements that developers contribute to affordable housing, provide needed infrastructure for increased density, or include adequate parking; and
● The County failed to conduct studies of the impact of increased density and this failure violates Virginia law.
"EHO/MMH zoning upends Arlington’s decades-old, successful land use policy to concentrate density along metro corridors,”said Dan Creedon with NfN. “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 this increased density in residential neighborhoods.”
The change in density from single-family to multi-family buildings is evident in the EHO applications. For example, the application for 735 N. George Mason Drive would replace a one-story 1,077-square-foot home with a six-unit building that is seven-times as large, and has only six on-site parking spaces.
In addition to the lack of proper studies, the lawsuit alleges that EHO/MMH zoning is arbitrary and capricious, bearing no reasonable relationship to public health, safety, or the general welfare, as required by state law. Additional counts in the lawsuit claim that the zoning amendment process was not initiated by a proper Planning Commission motion or County Board resolution; that the zoning amendment was not properly advertised; that the EHO cap is a special exception to the zoning regulations and requires County Board review of applications; and that the County Board failed to share with the public documents that were furnished to it about EHO – all contrary to State law.
The hearing in this case was delayed for months after all of Arlington’s Circuit Court judges recused themselves and the Virginia Supreme Court then appointed retired Fairfax Judge David Schell to preside over this case.
Inquiries: [email redacted]
SEPTEMBER 15, 2023 UPDATE
Minneapolis Judge Rules that Missing Middle Housing Must Stop
Arlington has relied on Minneapolis as an example of successful elimination of single-family zoning. But now, a judge has ordered that the locality must revert to its previous zoning rules because of the adverse impact of increased density on the environment, in violation of Minnesota law.
Read more here:
https://www.startribune.com/minneapolis-cannot-proceed-with-2040-plan-court-rules/600302266/?refresh=true
If you attend the court hearing on Tuesday, September 19th in Arlington case, no electronic devices are allowed in the Arlington Courthouse (1425 N. Courthouse Rd.), including cell phones.
The hearing to void EHO housing in Arlington is scheduled to begin at 10:00 a.m. The courtroom has not yet been assigned. The case is called: Marcia Nordgren, et al, v. County Board, Arlington.
PLEASE DONATE NOW TO HELP FUND THE LAWSUIT
Learn more about the status of EHO in Arlington in an August slide presentation on the Arlingtonians for Our Sustainable Future (ASF) website: https://www.asf-virginia.org/_files/ugd/a48bae_aa07f79887a84c6db8fd5c9fbc003091.pdf
ASF is not a party to the lawsuit.
For the most updated EHO information, go to the EHO permit tracker: https://www.arlingtonva.us/Government/Programs/Building/Permits/EHO/Tracker
As of today, 8 EHO permits have been approved; 19 more are listed on the County permit tracker as under review; and many more have been submitted.
The lawsuit seeks to have EHO zoning declared void and to have any EHO permits that have been issued declared void.
SEPTEMBER 8, 2023 UPDATE
Arlington County Government misrepresented its “Missing Middle Housing” initiative as housing that would be affordable to low- and middle-income residents. Instead, what it now calls “Expanded Housing Options” (EHO):
● Is not affordable for middle-income residents;
● Allows by-right development, with no requirements that developers contribute to affordable housing, provide needed infrastructure for increased density, or include adequate parking; and
● Incentivizes developers to tear down modest, older, affordable homes and replace them with large 6-plex multi-family buildings.
For example, developers plan to replace this home at 1004 N. Daniel Street:
with a 6-plex that could look like this:
Another developer is seeking investors to finance building three townhouses on a single-family property (assessed at $1.2 million) at 2909 2nd Street N. in Lyon Park, with each unit to sell for more than $1.2 million.
The Broyhill Mansion on 26th Street N. has been torn down and the property is for sale for $10 million, marketed as six 6-plexes (36 units) or six single-family homes.
If each 6-plex had four residents, there would be 144 people living on this property.
Because EHO requires only one parking space per unit, there might be 36 residents’ cars parked on the street, and even more for visitors.
While it was estimated that there would be 38 EHO applications per year, the County’s website lists 23 applications in just two months across Arlington.
What might stop this runaway development? A lawsuit that has been filed on behalf of 10 Arlington homeowners to declare EHO zoning invalid. In April, the law firm of Blankingship & Keith filed a 162-page complaint with seven counts challenging EHO zoning. The first hearing will be held in Arlington Circuit Court on September 19th.
Neighbors for Neighborhoods, LLC has been created to raise funds for the lawsuit. Donations to the litigation fund can be made by:
- Check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
• Venmo - Search: Neighbors For Neighborhoods or GoFundMe.
AUGUST 28, 2023 UPDATE
The Arlington Circuit Court will hear motions in the Expanded Housing Options lawsuit on September 19th. Read the Plaintiffs’ response to the County’s motions here:
Please DONATE now to the litigation fund to stop the County from issuing EHO permits!
• GoFundMe; or
• Donate by check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
• By Venmo Search: Neighbors For Neighborhoods.
Read the Plaintiffs’ April 2023 162-page Complaint here:
August 4, 2023 EHO Litigation Update:
September 19 Hearing in Arlington County Circuit Court
Before the Arlington County Board adopted its Missing Middle Housing Zoning Ordinance (now called Expanded Housing Options – EHO) in March 2023, residents objected to the amendments in part because the County did not consider the impact of eliminating single-family zoning (allowing up to 6-unit multi-family buildings on single-family lots) across Arlington.
On April 21, 2023, the law firm of Blankingship & Keith filed a 162-page lawsuit in Arlington Circuit Court on behalf of ten Arlington homeowners, alleging, among other counts, that this failure isn’t just bad planning, it is illegal. State law requires that zoning laws reasonably consider needs for transportation, schools, parks, recreation, and public spaces, as well as the conservation of natural resources.
The lawsuit against the County Board seeks an injunction to prevent the County from issuing EHO permits and to declare the EHO zoning ordinance invalid. This is the only action that might put a stop to developers’ wrecking balls destroying affordable homes and ending single-family zoning in Arlington.
After all of the Arlington Circuit Court judges recused themselves from hearing this case, the Virginia Supreme Court appointed retired Fairfax County Circuit Court judge David S. Schell to preside over the litigation.
A hearing will be held on September 19th on a number of motions, including the County’s motions to dismiss the lawsuit. The seven pages of County motions responding to the 162-page complaint challenge, among other items, the claim that the County did not reasonably consider the impact of increased density on Arlington’s infrastructure.
In addition, the County’s motions attempt to refute the plaintiffs’ claims of procedural failures in initiating the EHO process, advertising the zoning amendments, and sharing documents with the public as required by the Virginia Freedom of Information Act (FOIA).
If the Court grants the plaintiffs’ request, the County would not be able to issue any EHO permits until the lawsuit is resolved.
If the Court later declares the zoning amendments void, the County Board would have to start the process of considering EHO zoning amendments all over again, to comply with any deficiencies that the Court finds.
From July 1 through August 4, the County has listed 20 EHO applications on its EHO Permit Tracker site. Of these applications, there are eight 6-plexes, one 4-plex, six three-plex/townhouses, and five duplexes.
All of these are on lots in R-5 and R-6 zoning districts, which require the least amount of land for residential development. Most of these lots have older, small homes that will be replaced with much larger, much more expensive, multi-family buildings.
Neighbors for Neighborhoods, LLC has raised money to cover the legal fees for the filing of the 162-page complaint and to begin preparing for the upcoming motions. Funds are needed to pay for legal research, experts, drafting briefs, and court hearings – all of which are very costly.
Please DONATE now to the litigation fund to stop the County from issuing EHO permits!
• GoFundMe; or
• Donate by check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
• By Venmo Search: Neighbors For Neighborhoods.
July 10, 2023 Update
The worst example of the effect of EHO (formerly Missing Middle Housing) yet.
The Broyhill Mansion property at 2561 N. Vermont St. is now for sale for $10 million and is being marketed as six 6-plexes or 6 single-family homes.
Six 6-plexes would have 36 units. If there are 2 cars per unit, that’s 72 cars. EHO only requires one parking space per unit – so 36 cars might be parked on the street.
Consider this: The Broyhill Mansion property has a tax assessment value of $3,592,600. It sold in January at under that value: $2,550,000. It is now for sale for $10,000,000.
If four people live in each unit, there could be 144 people living on that property. Imagine the impact on infrastructure (schools, stormwater, etc.) from that.
Please DONATE now to the litigation fund to stop the County from issuing EHO permits!
Via GoFundMe or:
By check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
By Venmo Search: Neighbors For Neighborhoods.
PLEASE SHARE THIS GOFUNDME PAGE WITH YOUR FRIENDS AND NEIGHBORS!
JULY 7, 2023 UPDATE: JUDGE APPOINTED TO HEAR CASE
The Virginia Supreme Court has appointed retired Fairfax County Circuit Court judge David S. Schell to preside over the Expanded Housing Options (EHO) (formerly called Missing Middle Housing) litigation.
Now that a judge has been appointed, the hearing originally scheduled for July 11th has been rescheduled to August 16th.
DEVELOPERS FILING EHO APPLICATIONS
From July 1 – July 5, 8 completed applications for Expanded Housing Options (EHO) permits have been submitted to the County. Many additional applications have been submitted but are not yet complete. Once EHO permits are issued, developers then must apply for and receive demolition permits and building permits, which can take several months.
The completed EHO applications are all in the zoning districts with the smallest lots: R-5 and R-6. Developers have submitted plans to tear down mostly small, older properties and to build much larger and much more expensive multifamily buildings from 2 to 6 units each.
This is exactly what residents cautioned the County Board about: developers profiting by tearing down more affordable homes and replacing them with bigger, more expensive buildings.
The lawsuit against the County Board seeks an injunction to prevent the County from issuing any EHO permits and to declare the EHO zoning ordinance (formerly called Missing Middle Housing) invalid. This is the only action that might put a stop to developers’ wrecking balls destroying affordable homes and ending single-family zoning in Arlington.
PLEASE DONATE NOW TO HELP FUND THE LITIGATION.
Donate via GoFundMe or:
By check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202; or
By Venmo Search: Neighbors For Neighborhoods.
For more information about the lawsuit, keep reading below.
To monitor the EHO applications to build multi-family housing in single-family neighborhoods, go to the County’s website:
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JUNE UPDATE
The litigation to invalidate the County’s Missing Middle Housing (MMH) zoning ordinance is more important than ever.
PLEASE DONATE NOW TO KEEP THE LITIGATION GOING.
In the June 20th Democratic primary, although voters selected as their #1 choices for County Board the two candidates who opposed the County’s MMH zoning, only one of these candidates won the election: Susan Cunningham. The third-place finisher for #1 votes cast, Maureen Coffey, who supports MMH zoning, will appear on the November ballot with Cunningham. That is due to ranked choice voting, which put Coffey over the 33% of votes needed to win after three candidates were eliminated with the fewest votes and ballots selecting these candidates were retabulated.
July 1 is the date that developers and others can begin to apply for construction permits to build up to 6-unit buildings on single-family lots across Arlington. It will take some time for County staff to review these and to begin issuing MMH permits.
July 11 is the date for the first hearing in the Arlington Circuit Court in this litigation. However, that date may change, given that as of today, the Chief Justice of the Virginia Supreme Court has not yet appointed a judge to preside over this matter.
The plaintiffs who are seeking to invalidate the MMH zoning have filed, through their attorneys at Blankingship and Keith, a motion in support of one of the seven claims against the County Board – this is what is to be heard on July 11.
PLEASE DONATE TO THE LITIGATION EFFORT VIA GoFundMe, Venmo, or by check (see below for Venmo and check details). Funds are needed for research and drafting of motions and briefs, fees for expert witnesses, and legal fees for court hearings.
MAY 2023 UPDATE:
GoFundMe LAUNCH TO SUPPORT LITIGATION TO INVALIDATE COUNTY’S MISSING MIDDLE HOUSING ZONING ORDINANCE
Before the County Board in Arlington, VA adopted its Missing Middle Housing Zoning Ordinance (now called Expanded Housing Options – EHO) in March 2023, residents objected to the amendments because the County did not consider the impact of eliminating single-family zoning (allowing up to 6-unit multi-family buildings on single-family lots) across Arlington.
On April 21, 2023, ten Arlington homeowners filed a 162-page lawsuit in Arlington Circuit Court alleging, among other counts, that this failure isn’t just bad planning, it is illegal. State law requires that zoning laws reasonably consider needs for transportation, schools, parks, recreation, and public spaces, as well as the conservation of natural resources.
On May 25, 2023, the Chief Judge of the Arlington Circuit Court issued an order that it would not be proper for any of the four Arlington Circuit Court judges to hear this case. The Chief Judge of the Supreme Court of Virginia will appoint a judge to preside over this matter.
As expected, the County has filed motions to dismiss the lawsuit. The seven pages of motions challenge, among other items, the claim that the County did not reasonably consider the impact of increased density on Arlington’s infrastructure.
In addition, the County’s motions attempt to refute the plaintiffs’ claims of procedural failures in initiating the EHO process, advertising the zoning amendments, and sharing documents with the public as required by the Virginia Freedom of Information Act (FOIA). They further argue that the plaintiffs do not have standing to bring the suit. Standing in Virginia requires a plaintiff to have a sufficient personal stake in the outcome of the case.
The law firm of Blankingship & Keith, which represents the plaintiffs, requested and has scheduled a hearing in the Arlington County Circuit Court on July 11, 2023 on the FOIA claim.
If the Court grants the plaintiffs’ request for relief to enjoin the issuance of EHO permits (which can be requested beginning July 1, 2023) the process of issuing EHO permits will stop until the lawsuit is resolved. The pending lawsuit also might discourage builders from seeking permits until the lawsuit is resolved.
If the Court later declares the zoning amendments void, the County Board
would have to start the process of considering EHO zoning amendments again, to comply with any deficiencies that the Court finds.
Neighbors for Neighborhoods, LLC has raised money to cover the legal fees for the filing of the 162-page complaint and to begin preparing for the upcoming motions. Funds are needed to pay for legal research, experts, drafting motions, and court hearings – all of which are very costly. Modest funds also are needed to communicate with the public about the status of litigation.
Donations also can be made:
By check payable to: NFN Litigation Fund LLC; mailed to 1405 S. Fern St., Box 556, Arlington, Va. 22202
By Venmo Search: Neighbors For Neighborhoods
Examples of media coverage about this issue can be found here:
Organizer
Neighbors For Neighborhoods LLC
Organizer
Arlington, VA
