SUPREME COURT OF VIRGINIA TO HEAR MISSING MIDDLE/EXPANDED HOUSING OPTIONS (EHO) CASE ON OCTOBER 28th.

The litigation on the 28th is about developer Wilsons Ventures' claim that it should have been allowed to intervene in the case in 2024 even though the 5-day trial was over and the judge ruled that EHO was invalid.

If the homeowners win their argument on October 28th, Missing Middle will again be invalid and the case will return to the Court of Appeals. The issue will be the County Board's appeal of the trial court's ruling that EHO was invalid.

In a bizarre twist, the County Board and Wilsons Ventures essentially abandoned the case in the Supreme Court: neither filed a brief and neither will argue before the Supreme Court on the 28th.

Wilsons Ventures' legal maneuvers have cost time and lots of money. Even worse, this has delayed the County Board's appeal of the trial judge's ruling - that would have been decided by now.

And we know that EHO has nothing to do with affordable housing. Completed EHO units have sold for between $1.2 and $1.65 million each!

Learn more at: neighborsforneighborhoods.org

Follow us on Facebook: https://www.facebook.com/NfNArlington/

LEARN MORE AT OUR WEBSITE:

https://www.neighborsforneighborhoods.org/donate

SEE THE FUTURE OF ARLINGTON WITH MISSING MIDDLE HOUSING:

https://www.youtube.com/watch?v=Sdn_06kt7wk

MAY 19, 2026

Huge victory today. Here are the highlights from the press release:

Today, the Supreme Court of Virginia agreed to review a decision of the Virginia Court of Appeals in Arlington’s Missing Middle Housing/Expanded Housing Option (EHO) litigation. This is a victory for the Arlington homeowners who prevailed at trial in 2024 in their suit against the Arlington County Board to have EHO declared illegal, but then saw that ruling reversed by the Court of Appeals in September 2025.

At issue in this appeal is not whether the trial judge correctly ruled that EHO was illegal because, among other findings, the County failed to conduct the required studies of the impact of EHO. Instead, the appeal only addresses the claim of Wilsons Ventures that it should have been allowed to intervene in the case after the trial was over and after the judge ruled that EHO was void.

Winning in the Supreme Court likely would stop the County from issuing EHO permits.

The County has relied on the Court of Appeals September 2025 ruling to issue new EHO permits - 14 more since that ruling. If the homeowners win in the Supreme Court, the County likely would have to halt issuing new EHO permits and building permits for EHO projects already approved.

Winning in the Supreme Court would not end the litigation. The case would return to the Court of Appeals to consider the merits of the case: whether the trial judge was correct in his ruling that EHO was illegal.

Halting the issuance of EHO permits is important for many reasons. Chief among them is that the County did not sufficiently study the impact of EHO on Arlington’s infrastructure, including its aging sanitary sewer system. This failure is one of the reasons that the trial judge ruled that EHO was illegal.

In addition, implementation of EHO has demonstrated that it is not affordable for moderate-income households, as the County Board said it would be.

Last week, Jay Hamilton presented the Neighbors for Neighborhoods analysis of EHO to the County Board. The report demonstrates that EHO is far out of reach for the teachers and public safety workers that the zoning change was meant to benefit, as EHO units have sold for between $1.2 million and $1.6 million. Read the report here: https://www.neighborsforneighborhoods.org/

Your financial support is needed now more than ever to keep up the fight and have EHO again declared illegal.

December 18, 2025

The fight to save single-family zoning continues!

Please check out the Neighbors for Neighborhoods (NfN) website – click on “News” to see the newsletters that NfN has sent with updates on the litigation and the status of EHO in Arlington.

https://www.neighborsforneighborhoods.org/

The litigation was successful in getting many developers to change plans and build single-family homes instead of multi-family buildings. That is a huge success and your donations helped make that happen. Thank you!

But as of now, EHO is legal in Arlington and new EHO permits are being issued – included two new permits for 6-plexes.

The case is on appeal in the Supreme Court of Virginia. We are waiting for a hearing date to be scheduled and the attorneys for the homeowners continue their work.

Please share the NfN website with friends and neighbors and if you can, please make a year-end donation either on GoFundMe or for larger donations, by check to Neighbors for Neighborhoods LLC at 1405 S. Fern St. Box 556, Arlington, Va. 22202.

Wishing you joy this holiday season.

OCTOBER 30, 2025

Amid What the Arlington County Board Calls “Chaos”

re: its Missing Middle Housing/Expanded Housing Options (EHO) Ordinance, 47 EHO Permits “Approved”

The Arlington County Board cited “confusion, frustration, and administrative chaos for the Board, property owners, developers, and Arlington’s citizens as a whole” in papers filed in the Supreme Court of Virginia last week in the Missing Middle Housing/Expanded Housing Options (EHO) case.

The Board blames this chaos on the appellate court that has “repeatedly flipped the EHO Amendment on and off.” But the appellate court has only acted at the behest of developer Wilsons Ventures, without opposition from the County Board.

A September 5 ruling of a 3-judge panel of the Virginia Court of Appeals turned EHO zoning “on,” ruling that Wilsons Ventures should have been allowed to intervene in the case after the homeowners won at trial. On October 1, the Board began accepting new EHO applications and building permit applications for existing EHO permits. As of today, the County’s EHO tracker shows 47 EHO permits as “approved.” The Board told the Supreme Court of Virginia that it has expended “considerable effort and time to restore the administrative and technological apparatus that supports EHO implementation.”

If the Supreme Court of Virginia decides in favor of the homeowners in their appeal of the September 5 decision, then EHO zoning will be “off” again and all of the County’s efforts, and more taxpayer money, will be wasted. The County Board details in its filing the additional costs of EHO being ruled “off” again: more “litigation for the Board” and “just as with the ramp-up process, stopping EHO administration will require considerable effort and resources.”

Arlington homeowner David Gerk implored the County Board at its October 18 meeting to end the chaos by pausing the EHO process: “There is little to gain by rushing to resume an EHO process before a final court disposition. But, by blazing forward, the County invites multipliers of harm, liability, abuses of the process, and chaos.” Gerk added: “Anyone that purchases an EHO property in the meantime will be without notice that at any moment the property can be in violation as a result of a Court ruling. Chaos. Will Arlington force the property to become compliant, be torn down? Chaos. Or, perhaps you will just ignore it and bless violators of the law. Chaos. All avoidable chaos.”

The Board Chair responded that the Board must move forward with EHO permitting to comply with the September 5 ruling. But this ignores the fact that the Board has the power to vote to pause implementation of its own ordinance to end the “chaos.”

Arlington taxpayers fund the County’s costly EHO permitting process that it thus far has refused to put on hold while the September 5 ruling is appealed. They also pay for the County Board’s legal fees in this case – more than $1.4 million to date to a private law firm.

Ken Hughes, who lives down the street from an EHO 6-plex under construction, urges residents not to give in to the County’s deep pockets and power: “Don't be worn down by the process. It's hard not to be, okay, when you're just citizens trying to raise money for attorneys, and the County can pay over a million dollars to very high priced attorneys who are very good at what they do, and we've got a scrounge for nickels and dimes. So give those nickels and dimes and be part of the process - kind of the American way.”

https://www.youtube.com/watch?v=P-gyTBtQ0nY – Ken Hughes video.

Dan Creedon, with Neighbors for Neighborhoods, says: “These nickels and dimes allow the homeowners who sued the County Board to keep up the fight. Neighbors for Neighborhoods has received more than 1,500 donations through Arlington residents’ fundraisers in homes and community centers, and as well as contributions made via GoFundMe, (https://www.gofundme.com/f/suit-re-end-of-singlefamily-zoning-in-arlington), Venmo (Neighbors for Neighborhoods), and check: (payable to NFN Litigation Fund, LLC.) to 1405 S. Fern St., Box 556, Arlington, VA 22202.”

Media Contact: Dan Creedon – [email redacted]

OCTOBER 13, 2025

See new video showing the truth about Missing Middle Housing in Arlington. Guess what? It's not affordable!

https://www.youtube.com/watch?v=5g2cecuZX3U

FOR IMMEDIATE RELEASE: October 13, 2025

HOMEOWNERS, HOMEBUYERS, RENTERS, AND DEVELOPERS BEWARE: ARLINGTON COUNTY AGAIN TO ISSUE MISSING MIDDLE HOUSING (MMH) PERMITS

New video shows completed MMH and what’s next for Arlington.

Arlington County’s website now welcomes developers to move forward with Missing Middle Housing (MMH – also called Expanded Housing Options (EHO)) permits:

As of October 1, the EHO Permit type in Permit Arlington is available for new applications. Property owners with approved EHO permits or permits that were under review at the time of Circuit Court ruling should email [email redacted].

After the October 2024 final judgment that MMH was invalid, the trial judge issued an order allowing the County Board to issue permits for existing EHO permit holders to begin or continue construction. But this was allowed only after the County ensured that developers placed language in the land records that this housing would become illegal if the homeowners won in the appellate courts.

But now, potential purchasers won’t be warned that MMH units will again become illegal if the Supreme Court of Virginia rules in favor of the homeowners who brought the original case against the County Board.

The County Board’s decision to plow ahead with MMH permits comes despite a written request by Neighbors for Neighborhoods that it pause the permitting process while the case is pending in the appellate courts.

Despite the pending litigation, the County has pulled out all the stops allowing developers to seek new EHO permits and to continue with ones they obtained before the trial. The County’s EHO tracker has changed the status of EHO permits that were listed as “void” to “approved.”

As a result, today the homeowners petitioned the Supreme Court of Virginia to stay the September 5 decision of a 3-judge panel of the Court of Appeals that a developer should have been allowed to intervene in the case. That decision was issued even though the developer sought intervention only after the trial was over and the judge ruled against the County.

This follows the Petition for Appeal filed on October 6th in the Supreme Court of Virginia to overturn the September 5 decision.

If the County and developers are allowed to barrel ahead with MMH, housing for sale and rent with up to six units can and will be built on lots previously zoned for single family homes throughout the County – but these units will become illegal if the Supreme Court reverses the decision of the Court of Appeals.

Dan Creedon of Neighbors for Neighborhoods stated: “A stay in the Supreme Court of Virginia putting Missing Middle Housing (MMH) on hold will protect homeowners, homebuyers, renters, and developers in Arlington. If the Supreme Court reverses the Court of Appeals and MMH is again invalid – a decision that could take up to a year – illegal MMH housing will be spread across the County. Then what?”

It is important to note that the litigation does not address whether or not the MMH policy benefits Arlington residents. The case focused on the adoption and implementation of MMH zoning, which the trial judge ruled violated Virginia law.

But whether or not MMH policy has delivered on the County’s promises of affordability matters in light of the County’s decision to issue MMH permits and to continue to litigate the case.

The attached video shows that MMH zoning in Arlington has not produced housing that is affordable for the groups that the County promised would benefit from it: teachers, firefighters, police officers, and young professionals.

And MMH has nothing to do with “affordable housing” – which in Arlington focuses on households earning 60% or less of Area Median Income (AMI).

As Neighbors for Neighborhoods has repeatedly pointed out, the 2025 Profile (page 19) shows that Arlington has and will have more housing units than households.

Arlington County’s own data (page 7) shows that we have a deficit of rental units for households earning less than 50% AMI, while there is a surplus of rental housing for those earning more than 50% AMI.

The sales price of $1,795,000 for a MMH unit in a duplex on Troy Street shows that the MMH policy is producing more housing types for upper-income households, not for low or middle-income households.

So why is the County Board adding to its existing legal bills of more than $1.4 million, funded with taxpayer dollars, to pursue a failed MMH policy?

Why is the County Board encouraging developers to build more MMH that is affordable to only upper income households, when the real need in Arlington is for rental housing that households earning 50%-60% or less can afford and for affordable home ownership opportunities?

Why isn’t the Board focused more on efforts like the Goodwill project that will add approximately 120 affordable housing units or workforce housing that is available in Fairfax?

Dan Creedon, with Neighbors for Neighborhoods, LLC, states: “The County Board has dug in its heels on a failed MMH policy that has produced more housing units for upper-income households, but not a single one for those who need affordable housing. Imagine how many low and moderate-income households could benefit from $1.4 million – the amount of taxpayer funds that the County has spent on its outside lawyers, not to mention the huge amounts it will continue to spend defending MMH.”

For more information, email Dan Creedon at: [email redacted]

13, 2025

OCTOBER 6, 2025

FOR IMMEDIATE RELEASE: OCTOBER 6, 2025

ARLINGTON HOMEOWNERS SEEK REVIEW IN THE SUPREME COURT OF VIRGINiA RE: DEVELOPER’S CLAIM THAT IT SHOULD HAVE BEEN ALLOWED TO INTERVENE IN THE MISSING MIDDLE ZONING CASE

Today Arlington homeowners filed a Petition for Appeal in the Supreme Court of Virginia seeking to overturn a decision of a 3-judge panel of the Court of Appeals in the Missing Middle Housing (MMH) litigation.

The merits of the trial judge’s ruling last year that MMH zoning is void have yet to be heard by the appellate courts. That is due to a legal monkey wrench that an Arlington developer threw into the litigation.

Wilsons Ventures sought to intervene in the MMH case months after the homeowners’ complaint was filed, after a trial was held, and after the judge ruled against the County Board.

The trial judge denied the developer’s motion.

Wilsons Ventures then appealed the trial judge’s decision. This action came after the County Board filed its papers to appeal the ruling that MMH was void and before the deadline for the homeowners to respond. This stopped the Court of Appeals consideration of the merits of the case in its tracks.

On Sept 5, a 3-judge panel of the Court of Appeals ruled that the trial judge should have allowed the developer to intervene and remanded the case for a new trial that would include Wilsons Ventures.

In their Petition for Appeal of this decision, the homeowners argue why the 3-judge panel’s decision is not consistent with Virginia law and warn of the implications of the errant ruling:

[E]very developer interested in any land-use case can sit on the sidelines without investing a dime to assert its claims, relying on the locality to answer the complaint, file motions, conduct discovery, try the case, and achieve the desired ruling. If the developer does not like the outcome of the case, it is then entitled to intervene and get a “do-over.”

Wilsons Ventures claimed that it was adversely affected by the MMH litigation, but the County now has approved MMH permits for its properties on North Quincy Street and South 25th Street that are the subject of its appeal. https://my.arlingtonva.us/map/permit

With uncertainty as to the outcome of the litigation, what has become crystal clear is that MMH in Arlington is not affordable for low or moderate-income households. The proof is in the MMH buildings that have been constructed, consistent with court orders.

For sale on North Troy Street is a MMH duplex, with each unit listed for sale at $1,795,000. These units replace a modest, single family home that sold to the developer for $862,500. The new units cost more than twice the price of the single family home and provide half the space.

On South 25th Street is another MMH duplex that advertised each unit for a monthly rent of $5,500. This expensive building removed from the market an affordable single family home that sold to the developer for $560,000.

A 6-plex is nearing completion on North 14th Street. While the units are not yet advertised for rent, these are expected to be luxury units, likely not affordable for teachers, firefighters, police officers, and young professionals – the folks that the County promised would benefit from MMH. The developer purchased this lot with single family home on it for $913,000.

See the transformation of these single-family homes to MMH buildings:

https://youtu.be/u0SOTrUBBE4

YIMBYs’ respond to these facts arguing that a $1,795,000 unit is less expensive than a new single family home that might cost upwards of $2 million. But when only upper-income households can purchase the new MMH units – so what?

Arlington lacks sufficient housing for low and moderate- income households. It does not have a crisis of housing supply, as many parts of the country do. In fact, Arlington has, and will have into the future, more housing units than households. https://www.arlingtonva.us/files/sharedassets/public/v/1/projects/documents/data-and-research/profile/profile_report_2025_final_4_2_25.pdf (page 19). So merely increasing the supply of housing will do nothing to help low and moderate-income households.

Dan Creedon with Neighbors for Neighborhoods states: “Arlington doesn’t need more housing for upper-income households. But that’s exactly what MMH is producing. The MMH units built and in the pipeline show that the County’s MMH plan is a failure. A $1,795,000 unit in a MMH duplex is not affordable for the teachers, firefighters, police officers, and young professionals that the County Board promised it would help.”

Creedon adds: “The County’s MMH plan benefits developers, who can make big profits building luxury housing, and it benefits upper-income residents who can afford to buy these. But it does nothing for low and middle-income residents.”

Neighbors for Neighborhoods is a grassroots effort to raise money for the litigation that Arlington homeowners initiated against the County Board to hold it accountable to follow Virginia law in its adoption of MMH zoning. To date, Neighbors for Neighborhoods has received approximately 1,500 contributions and fundraising continues to support the homeowners’ case.

Donations can be made:

GoFundMe: https://www.gofundme.com/f/suit-re-end-of-singlefamily-zoning-in-arlington

VENMO - Search-Neighbors for Neighborhoods

By check payable to: Neighbors for Neighborhoods LLC and mailed to 1405 S. Fern Street, Box

556, Arlington, Va. 22202-2810

JULY 9, 2025

NEIGHBORS FOR NEIGHBORHOODS - FOR IMMEDIATE RELEASE: JULY 9, 2025

PANEL OF THE VIRGINIA COURT OF APPEALS REVERSES ITS ORDER:

MISSING MIDDLE/EHO ZONING IS INVALID IN ARLINGTON

On June 24, 2025, a three-judge panel of the Virginia Court of Appeals issued an order reversing the trial judge’s ruling that Missing Middle Housing/Expanded Housing Options (EHO) zoning was invalid.

The order did not address the merits of why the trial judge ruled that EHO zoning violated Virginia law. Instead, it held that the trial judge should have allowed a developer to intervene in the case, even though the request to intervene came after the 5-day trial was over and the judge had decided against the County Board.

Counsel for the homeowners who brought the initial lawsuit against the County sought a rehearing of the order before the three-judge panel that issued it. Arguments were heard on July 7, 2025 and the next day – two weeks after the initial order – the panel reversed itself.

This means that EHO zoning is invalid in Arlington.

The County Board was quick to react to the June 24 order, stating: “The County is considering its next steps, including how this impacts previous applicants for EHO permits, new applications, and housing options in Arlington County going forward.”

The appellate process is a long and winding road. The County Board has filed its brief in the Court of Appeals in support of its appeal of the trial judge’s ruling that EHO zoning is invalid. The homeowners have not yet filed their brief in opposition.

Appeals are considered by a three-judge panel of the Court of Appeals and the losing party can seek a rehearing before the full Court or can appeal to the Virginia Supreme Court. The EHO zoning litigation journey will not end until these appeals are exhausted and that could take years.

Dan Creedon, a founder of Neighbors for Neighborhoods, said today: “We are pleased that the three-judge panel reversed its order and that the trial judge’s ruling that Arlington’s Missing Middle Housing zoning is invalid is the law of the land. Neighbors for Neighborhoods is in this for the long haul – supporting the homeowners who won at trial until all of the appeals completed.” He continued: “As the County Board considers housing in Arlington, regardless of the status of the litigation, Neighbors for Neighborhoods calls on the Board to be guided by the fact that its experiment with Missing Middle Housing failed to produce housing that was affordable for low and middle-income households.”

Regarding housing in Arlington, the facts are:

Arlington does not have a housing crisis of supply not meeting demand.

• According to Arlington’s Annual Profile, Arlington has more housing units than households in 2025: 126,000 housing units and 120,700 households. That trend will continue with the forecast for 2050 showing 165,000 housing units and 155,400 households.

Missing Middle Housing in Arlington isn’t missing.

• “Missing Middle” refers to housing types, not income levels. Housing types between single-family detached units and high-rise buildings are considered “missing middle.”

• Interestingly, Arlington County’s Annual Profile does not reveal the number of missing middle units in Arlington. It does show that 78% of Arlington’s housing stock consists of multi-family units, including duplexes, townhouses, condos and apartments.

• Neighbors for Neighborhoods found an Arlington County searchable database that shows that there are thousands of apartment and condo units in buildings that are not high-rises, in addition to the thousands of duplexes and townhouses in Arlington listed in its Profile.

Eliminating single-family zoning with EHO zoning did not produce affordable units.

• The County Board claimed that allowing multi-family units in areas zoned only for detached, single-family homes would result in housing that was affordable for teachers, public safety workers, and first-time home buyers.

• But the EHO projects that were completed and planned demonstrate that the County Board was wrong. For example, a single-family home on N. Troy Street was purchased in 2023 for $862,500 and replaced with EHO duplexes for sale at nearly $1.8 million for each unit.

JULY 7, 2025

The 3-judge panel of the Court of Appeals that issued the June 24 adverse ruling for the homeowners today heard oral arguments by attorneys for the homeowners, the County Board, and the developer who is trying to intervene in the lawsuit.

Attorneys for the homeowners seek to have the panel overturn its order that the developer should have been allowed to intervene in the case. That order effectively reinstated EHO as valid in Arlington.

Now we wait for the panel to make its decision if it will reverse its order and if it does not, will it issue a stay of the order while the homeowners seek an appeal before the full Court of Appeals.

Homeowners also can seek relief before the Virginia Supreme Court if they are not successful in the Court of Appeals.

And remember - none of this legal wrangling has anything to do with the merits of the case - the reasons why Judge Schell declared EHO void. All of this time-consuming and costly litigation is just about one developer who is trying to get EHO overturned by claiming - after the trial was over and the County Board lost - that they should have been included in the trial.

Lots more litigation ahead. We'll keep you updated.

JUNE 26, 2025

Today, counsel for the homeowners in the EHO litigation filed an Expedited Motion for Stay of the June 24 Order in the Virginia Court of Appeals.

The Motion notes that both Arlington County and the developer that sought to intervene in the case are treating the Court’s order as if it has immediate effect. Indeed, statements have been made about intentions to move forward with EHO development and resuming issuance of EHO and related building permits.

The Expedited Motion for Stay seeks to put a pause on the Court’s order until the appellate courts can rule on the homeowners’ arguments to reverse the order. The Motion states that it is highly unusual, and contrary to the rules binding the Court of Appeals, not to have offered the parties oral argument on the developer’s motion to intervene in the litigation.

It is important to note that the developer’s motion and the Court’s Order do not address the trial judge’s decision to invalidate EHO as a violation of Virginia law.

At the heart of the developer’s motion to intervene is the claim that it was a necessary party to the litigation. The Court’s order failed to analyze a key component of the necessary party doctrine: the adequacy of representation of its interests in the case.

The developer couldn’t have had more vigorous representation than the Arlington County Attorney’s Office, together with many lawyers from a private law firm that to date has charged the County about $1.4 million to handle this case. Both wanted to keep EHO on the books.

And the developer only sought to intervene in the case after the 5-day trial last summer and after the judge ruled that EHO was invalid. The developer stated in its court papers that it didn’t know about the litigation until after the trial, despite the widespread local, regional, and national reporting on this case.

The homeowners seek an orderly disposition of this matter, with oral argument seeking to reverse the Court of Appeals order that the developer should have been allowed to intervene in the case. If the homeowners prevail, the focus of the appeal will turn back to the merits of the trial court’s decision invalidating EHO.

JUNE 25, 2025

At the same time that the County is appealing the trial court's decision declaring EHO void, a developer filed papers with the Virginia Court of Appeals to allow them to intervene in this case. On June 24th, a 3-judge panel of the Court of Appeals issued an order stating that the developer should have been allowed to intervene in the case at the trial level.

Media reports suggesting that this means that EHO is alive and well are misguided. The homeowners will appeal this order and are considering seeking a stay of the order - so that developers cannot move forward while the appeal regarding the intervention is decided.

It is important to note that nothing in the June 24th Court of Appeals order addresses the reasons that the trial judge declared EHO void. The order only addresses the developer's request to intervene - which was not made until after the 5-day trial last summer and after the judge ruled that EHO was void.

More funding is needed to pay legal fees for this aspect of the appeal. Please donate today.

NOVEMBER 20, 2024: COUNTY BOARD APPEALING JUDGE'S DECISION DECLARING EHO VOID

The County Board has spent more than $1.3 million on a private law firm to defend its Missing Middle/EHO zoning policy - and lost at trial. Now, the Board has filed a Notice of Appeal and is taking the case to the Virginia Court of Appeals. This will cost taxpayers even more money.

And the plaintiffs have to defend their win at trial in the Court of Appeals, which costs more money. Please continue to contribute to the Neighbors for Neighbors, LLC litigation fund.

OCTOBER 25, 2024 PRESS RELEASE:

Today Judge David Schell issued a final written order in the case brought by Arlington homeowners against the County Board. The order follows his September 27th ruling from the bench.

The Judge’s order details the legal basis for his decision to declare EHO void on four counts: failure to adopt an initiating resolution, failure to conduct studies of localized impact, unlawful delegation of the County Board’s authority to the Zoning Administrator to issue EHO permits, and exceeding its authority re: tree requirements.

Of particular note are the Judge’s factual findings that the County failed to inform the public about a number of “inconsistencies” during the EHO adoption process, including:

• The lead County staff member on stormwater infrastructure warned: “I cannot state in strong enough words that this is going to be devastating to the already stressed stormwater conveyance system.” But the County concluded publicly that EHO would have no greater effect on stormwater management than do single-family houses;

• “There is no evidence that the Board considered that a six plex with at least six toilets, additional washing machines, showers, sinks and dishwashers would increase the flow into the County system so that homeowners sharing the sewer line with that six plex will suffer sewage backup into their homes.”

• The sole County consultant “whose principle task was to determine what developers would do” under EHO “did not talk to a single developer” about what they would or would not do;

• That consultant was instructed “to avoid disagreement with the staff,” which the consultant understood to mean not to make recommendations “that didn’t comport with the staff’s judgement;”

• County staff were told by a third party that EHO development would be dispersed throughout the County, but the consultant said it would not be dispersed; and

• An Arlington Public Schools’ planner’s estimate of 80-94 additional students each year resulting from EHO was changed without explanation by his supervisor to 9-13, and the original estimate was based on the faulty premise provided to the planner that EHO would be dispersed throughout the County and that only 19-20 lots would be developed each year.

The Court also considered today motions by two developers to intervene in the case, even though the trial has concluded and the County Board has spent more than $1 million on a private law firm to vigorously defend its EHO zoning. The judge denied these motions.

Finally, the Court granted the County’s motion for a partial stay of its ruling until the Court of Appeals decides this case. The Court agreed to allow the County to issue building and other related permits to those who had received the 45 EHO permits issued prior to the ruling, but with a significant condition. The County can only issue such permits after the EHO-permit holder who seeks to build a multi-family building places a notice in the land records for that property stating:

“To potential purchasers, please be advised that a lawsuit is on appeal to the Court of Appeals of Virginia that may void your zoning rights to this property and may result in your right to live in this property being eliminated.”

Judge Schell issued a clear warning today to developers, stating: “I warn you” that you are proceeding “in a very dangerous way” and “taking a huge risk” if you build a six plex and the County loses on appeal: “that six plex cannot exist.”

Dan Creedon of Neighbors for Neighborhoods (NfN) commented that in addition to the inconsistencies the judge noted in his order, the County was not straight with the public about EHO and affordability: “EHO is not affordable housing. Fifteen months of EHO shows that it should be called “Expensive Housing Options.” Developers sought to tear down modest homes and replace them with much larger 6-plexes, townhouses, and other multi-family buildings with each unit often costing more than the original house.”

With respect to the stay, Mr. Creeden stated: “Time will tell if the developers with EHO permits will file the required papers and to build multi-family units. The papers inform the public that ongoing litigation could make these units illegal. The Judge was clear today that if his ruling is affirmed, these can’t exist. I take that to mean they’d have to be torn down or reconfigured as single-family houses.”

Media Contact: [email redacted]

SEPTEMBER 27, 2024

EHO ZONING DECLARED VOID: NO MORE EHO PERMITS CAN BE ISSUED

Press Release below.

Neighbors for Neighborhoods continues to raise funds for the outstanding legal bills to the law firm of Blankingship and Keith, which brought home this huge victory for the Plaintiffs and Arlington residents.

Please contribute today.

FOR IMMEDIATE RELEASE: September 27, 2024

JUDGE DECLARES EXPANDED HOUSING OTIONS (EHO) ZONING VOID:

County must stop issuing EHO permits

Eighteen months after Arlington residents filed a complaint against the Arlington County Board

to have EHO (formerly called Missing Middle Housing) zoning declared void because it violates

Virginia law, today Judge David Schell agreed. He ruled from the bench in favor of the Plaintiffs

on 4 of the 6 counts in the complaint and declared that EHO zoning is void.

Judge Schell stated that the County may not issue any more EHO permits and that other

permits may not be issued for the properties that have received EHO approval to date. This

ruling stops EHO development in its tracks.

The ruling voids EHO zoning on substantive grounds. The judge found that the County Board’s

enactment of EHO zoning “lacked any consideration of localized impacts” of increased density,

as required by law and as alleged in Count III of the complaint, and cited stormwater and

sewage as examples of this failure. Details of Count III below.

The judge also found that the EHO zoning violates the law in allowing the zoning administrator

to approve permits for EHO (Count V). He agreed with the Plaintiffs that the EHO permit

requirement means that this is not a by-right process, but instead is a special use permit

process, which means that only the County Board may issue these permits.

The Plaintiffs also were victorious on Counts I and VII, detailed below.

This ruling follows the 5-day trial in July during which multiple witnesses testified and hundreds

of pages of documents were introduced into evidence.

From the outset, the County Board questioned the Court’s ability to hear this case, calling it “a

subversion really of our democratic process” and claiming that the case “just cannot happen . . .

that’s not what the judiciary’s role is.”

After today’s victory, lead Plaintiff Marcia Nordgren stated: “Arlington County underestimated

the power of neighbors coming together to fight for the rule of law.” She added that the County

Board “has spent over $1.1 million dollars of taxpayer money to fight its own residents” and

that today the Court “demonstrated that the County’s authority is not absolute and must be

exercised within the bounds of legal procedures and public accountability.”

Dan Creedon of Neighbors for Neighborhoods, which has raised funds from more than 1,000

Arlington donors to support the Plaintiffs’ lawsuit, stated today: “The Plaintiffs had the courage

to stand up to the Arlington County Board to fight for the rule of law. This case was never about

the merits of EHO zoning, but about whether it complied with the law in substance and

whether the County followed the law in adopting it.”

Creedon went on to say: “Neighbors for Neighborhoods thanks all of the Arlington residents

who reached into their pockets to take on the County Board and to the law firm of Blankingship

and Keith, which represents the Plaintiffs and brought home today’s victory.”

The judge ruled on behalf of the Plaintiffs on the counts below. The post-trial brief on these

counts is summarized below:

Count I

The County Board did not adopt an initiating resolution to commence the EHO zoning

amendment process, as required by Virginia law. The law’s purpose in requiring initiating

resolutions for zoning amendments is to provide the public with notice so that they can

participate in the process about zoning changes in an informed manner from the outset.

· The Board’s January 25, 2023 Request to Advertise did not constitute an initiating

resolution, as the Board claims, because it did not come at the beginning of the process

to amend the zoning ordinance, but at the end, just months before the County Board

adopted EHO.

· The Board’s claim that the Request to Advertise constitutes the initiating resolution

would render meaningless part of the Virginia Code, since the Code has separate

sections requiring an initiating resolution and an advertisement.

· The Board’s practice of conflating initiating resolutions and advertisements does not

excuse it from following the law.

Count III

The Board failed to conduct an analysis of the effect of EHO, particularly at the local level, as

required by Virginia law. The law is intended to protect against undue population density with

respect to community facilities; traffic congestion; strain on water, sewer, and flood protection

systems; among other effects.

· Plaintiffs’ expert Christopher Mohn testified that the County conducted no analysis

of the impact of EHO at the neighborhood level. The County offered no evidence to the

contrary.

· Zoning must be evaluated by what impact is permissible, not what impact is likely.

EHO zoning allows development of 290 lots with up to 1,450 units in the first five years,

with no limits thereafter. This is in stark contrast to the estimate of 19-21 lots per year

(20% of EHO-eligible lots) likely to be developed according to the County consultant’s

(PES) final report.

· The County avoided any effort at an independent and reasonable assessment of the

pace of EHO development. Before issuing its final report, PES estimated that 30-50% of

eligible lots per year would have EHO development, but that fact was not disclosed to

the public. Even at trial, the County continued to try to hide that fact by objecting to the

admission of PES deposition testimony. But that testimony was admitted and showed

that PES was urged not to offer opinions that differed from those of County staff, that

there was pressure “to move the process along,” and that PES did not talk to a single

developer in Arlington in preparing its report.

· The Board’s conclusion that EHO development would be dispersed across the

County, and therefore would not cause water or sewer issues, was not supported by the

facts. Instead, PES concluded that EHO would likely be concentrated in certain areas,

including near Metro.

· Evidence at trial showed that Elizabeth Thurber, an Arlington County employee,

warned her supervisor that: “I cannot state in strong enough words that this is going to

be devastating to the already stressed storm water conveyance system.” This concern

was not shared with the public.

Count IV

Because EHO development can have greater impact in R-districts than single-family dwellings,

EHO permits must be approved by the County Board through legislative action – a special use

permit – and not by the Zoning Administrator, as EHO zoning provides. The purpose of state

law and the County’s own Zoning Ordinance in requiring special use permits for uses of

potentially greater impact than the zoning district allows is to provide an assessment of the

impact of each individual project.

· Despite the County’s claim that EHO is by-right development, it is not. Article 5 of

the Zoning Ordinance does not allow any multi-family development by-right in R-5

through R-20 districts.

· The permit required for EHO development is the very definition of “special

exception” under Virginia law. And, because EHO zoning in Article 10 of the Zoning

Ordinance is in conflict with Article 5, which allows no multi-family units by-right, the

more restrictive provisions of Article 5 prevail.

· Arlington’s own Zoning Ordinance provides that only the County Board can issue

special use permits.

· Rather than ignoring the potential localized impact of increased density from EHO

zoning, the Board could have conducted studies about this and could have required a

special use permit for EHO development.

Count VII

EHO does not comply with the tree planting and replacement standards in the Virginia Code.

· Virginia law controls the amount of tree canopy that a locality can require.

· According to the County’s corporate designee, Matt Ladd, developers must comply

both with the tree canopy requirements of the Chesapeake Bay Preservation Ordinance

and additional requirements for shade trees under EHO. This combination of

requirements exceeds what Virginia law allows.

· County staff touted to the public that in many cases the tree canopy for EHO

development would exceed what state law requires.

· While increased tree canopy is a laudable goal, the County cannot enforce the tree

requirements in EHO zoning because they exceed what is allowed under Virginia law.

· The County’s claim that the tree provisions of EHO are severable, and therefore

cannot void the rest of the ordinance, fails because the issue of tree canopy was one of

the most important factors for the public and the County led residents to believe that

tree canopy would be increased.

· The tree provisions are not “incentive zoning” as the County claims because the

ability to plant more trees than the law allows is not coupled with any requirement that

in return, the developer provide certain design elements or amenities desired by the

locality.

Next Steps

Both the County Board and Plaintiffs have the option of appealing the counts on which they lost

to the Virginia Court of Appeals. Arlingtonians for Upzoning Transparency (AFuT) has called on

the County Board not to appeal the case. AFuT spokesman David Gerk stated today: “The

County Board should stop wasting taxpayer money on its expensive private law firm to defend

EHO zoning.”

Gerk added that the Board also “should not seek a quick fix to remedy the violations of law that

the Court found.” Instead, he said: “The Board should conduct a thorough and transparent

assessment of the Court’s legal ruling together with the County Manager’s review of EHO

zoning implementation, expected by October 1, with robust public engagement.”

Below is the text of the AFuT September 5 email to the County Board:

Dear Chair Garvey and Members of the County Board:

In the coming months, the Board has an opportunity to thoughtfully evaluate its Expanded

Housing Options (EHO) zoning amendments.

The County Manager has stated that he will present the Board this fall with a report about the

first year of EHO implementation. In addition, Judge David Schell likely will issue his ruling this

month on the 6-count complaint alleging violations of Virginia law in adopting EHO zoning.

Arlingtonians for Upzoning Transparency (AFUT) requests that the Board consider the County

Manager’s EHO implementation report and the judge’s ruling together. If Judge Schell

invalidates EHO zoning on any of the counts, the Board must address that legal error in order to

reenact EHO zoning. But rather than moving swiftly to do this, we ask that the Board conduct a

thorough assessment addressing both the legal ruling and its EHO policy by asking:

 Is EHO zoning meeting the Board’s goals;

 What are the unintended negative consequences of EHO zoning;

 Should housing goals be better defined to identify the income levels of those the Board

seeks to assist;

 What are the housing needs and challenges of this group; and

 What policy options should be considered to address housing for this group?

The Board needs all of the relevant facts to answer these questions.

Does the Board know, for example, the number of single-family homes priced at under $1 million

with 3-4 bedrooms (family-sized homes that the Board said are needed) that are to be torn down

to build EHO townhouses priced at more than $1.3 million each or 6-plexes that are not

affordable to teachers or public safety workers? This includes 4229 S. 16 th Street, a 3-bedroom

home assessed at $791,100 which has an EHO permit approval for five units. AFUT has this

data for all EHO permit applications and approvals.

How should the Board address the assumptions on which EHO zoning was based that EHO

development would be dispersed across Arlington and that it would have no greater impact on

infrastructure than single-family homes, when in fact, EHO development is being concentrated in

certain areas and the size of the approved projects is significantly larger than even the largest

single-family home?

Was the Board ever told that in 2022, a County staff member expert in stormwater sent an email

to the Department of Environmental Services team that EHO development was going to be

“devastating” on the stormwater conveyance system?

Has the Board been briefed on the evidence introduced at trial that its consultant, PES,

estimated that as many as 50% of eligible lots would be developed as EHO multi-family

buildings, but PES used 20% in its final report after staff said there would be concerns about this

scale of development? What impact would the 50% estimate have on Arlington’s infrastructure?

The Board will benefit in its assessment of EHO zoning from the experience and expertise of the

community. The Civic Federation, AFUT, Arlingtonians for Our Sustainable Future, and others

have been closely monitoring the implementation of EHO zoning and have valuable information

to share.

We request that after the Board receives the County Manager’s report and the after the judge

issues his ruling, you establish a process for public engagement to assist you in assessing EHO

zoning. This should include at least one public hearing on this topic.

Dan Creedon stated today: “Neighbors for Neighborhoods agrees with AFuT in its call to the

County Board not to try to rush through changes in EHO zoning to revive it. With 15 months of

EHO implementation, it is clear that this policy is not achieving what the County Board said that

it would: housing that is compatible in scale with single-family homes and that is affordable for

teachers and public safety workers.”

Media Contact:

[email redacted]

JULY 8, 2024: FIRST DAY OF TRIAL UPDATE

FOR IMMEDIATE RELEASE: JULY 8, 2024

JUDGE REJECTS COUNTY’S EFFORTS TO EXCLUDE EVIDENCE FROM THE MISSING MIDDLE HOUSING/EXPANDED HOUSING OPTIONS (EHO) TRIAL

PLAINTIFFS’ OPENING STATEMENT: COUNTY UNDERESTIMATED THE PACE OF GROWTH OF EHO DEVELOPMENT – KEPT FACTS FROM THE PUBLIC

Today’s proceedings in the EHO case began with Judge David Schell’s ruling in favor of the plaintiffs suing the County to allow the deposition testimony of the County’s only retained expert on EHO, Partners for Economic Solutions (PES) to be offered at trial.

The Judge stated that he granted the County Board’s motion last week to exclude this evidence because he had the impression, based on representations by the County’s attorney, that the witness left during the deposition and could not be cross-examined. He continued that now having reviewed the deposition transcript, his impression was incorrect. The Judge noted that the County’s attorney asked questions of the witness during the deposition and then stated that he had no further questions.

Why did the County Board try to keep this PES evidence from the Court? Today’s opening statement from the plaintiffs’ attorney, Gifford Hampshire of Blankingship & Keith, offered an answer. Mr. Hampshire said that the evidence at trial will show that the PES estimate of only 19-21 EHO projects each year was a “best guess” with “no science behind it.” He added that County staff relied on this estimate of the pace of development for its conclusion that EHO would be incremental and modest.

Central to the plaintiffs’ complaint is Count III, which alleges that the County failed to conduct proper studies of the impact of increased density from EHO development on infrastructure, as required by Virginia law when zoning changes are made. Mr. Hampshire said that the evidence will show that EHO development could change density in Arlington from 1-10 units per acre in certain residential zoning districts to up to 42 units per acre.

He added that the County did no analysis about where this development might occur, concluding without a factual basis that it would be dispersed throughout the County.

The plaintiffs’ opening statement offered a preview of the evidence to be introduced at trial, including information that was never shared with the public during the County’s consideration and adoption of EHO. This includes statements by a County staff member of her concerns of the effect of EHO on the County’s stormwater system, which she characterized as “inadequate.”

It also includes the fact that Arlington Public Schools based its estimates of the effect of EHO development on school enrollment on the PES “best guess” estimate of 19-21 EHO projects per year, rather than on higher estimates.

Since July 1, 2023, the County has approved 37 EHO applications and more than 20 more are under review.

The County Board’s opening statement, presented by the County’s private law firm that has now billed more than $500,000 in legal fees, claimed both that EHO is “real reform” and that no outside study of its impact was needed because of the modest number of units expected to be produced per year.

The defense’s opening statement referred to the “very ugly history” of single-family zoning in Arlington and claimed that it would show “the truth” of what happened with EHO during the process to adopt this elimination of single-family zoning. That claim despite its effort to prevent the Court from hearing the PES deposition testimony.

Media inquiries: [email redacted]

MAY 9, 2024 PRESS RELEASE

Arlington County in Trouble in the Missing Middle Housing Lawsuit After Court of Appeals of Virginia Rules That the Pentagon City Sector Plan is Void

In a unanimous decision , the Virginia Court of Appeals on May 7 declared void Arlington County’s Pentagon City Sector Plan, as well as the General Land Use Plan, Zoning Ordinance, and Master Transportation Plan amendments associated with it.

The Court agreed with 11 Arlington residents that the County’s notice of its plans to increase density in the Pentagon City area violated Virginia Code Section 15.2-2204 by not providing a sufficient “descriptive summary” of its proposed actions.

This is the precise Code section on which the plaintiffs in the Missing Middle Housing/Expanded Housing Options (MMH/EHO) zoning case rely in Count 2 of their complaint. (Note that while the Code section was amended on July 1, 2023, the version applicable to the Pentagon City case also applies to the MMH/EHO case.)

The Court’s ruling relied on a Virginia Supreme Court case that interpreted the “descriptive summary” requirement as one that “serves to provide an object for the knowledge and understanding of others.”

The County’s advertisement to adopt MMH/EHO zoning failed to meet that standard, as alleged in the complaint. The draft zoning ordinance available to the public when the Board voted to advertise on January 25, 2023 had 9 sections with 2 to 5 options each for the critical topics of density, building placement, parking, tree canopy, and more.

During three days of public hearings, speakers chose from the variety of options advocating for a combination of elements to create their own zoning plans. For example, speakers would ask the Board to adopt options 2A, 4B, 5E, 7C, 8B, 9A, 10B, 11A and 12B.

Public comment ended on March 21. Hundreds of residents testified for and against MMH/EHO zoning, not knowing that the Board was already considering a specific plan with only one option per topic. Christian Dorsey, then Board Chair, shared the proposed plan with his County Board colleagues in a memorandum dated March 20. Residents first learned of this plan during the Board’s March 22 meeting, after public comment was closed – the same day that the Board adopted its MMH/EHO plan.

In the MMH/EHO litigation, the issue of failure to comply with State law in advertising the zoning amendments is just one count of seven in the complaint. If the plaintiffs prevail at trial on the advertisement issue, the remedy would be to declare MMH/EHO zoning void.

The County Board then might try again to eliminate single-family zoning in Arlington. But Dan Creedon, with Neighbors for Neighborhoods, the LLC accepting donations to fund the litigation, doesn’t think that they will do this: “The public was fooled into thinking that MMH/EHO zoning would provide housing for teachers and public safety workers. But as MMH/EHO permits are being issued, we know that family-sized, moderately-priced homes are to be torn down to build multi-family buildings, many of which will cost upward of $1.5 million each.”

Mr. Creedon also notes that the recent Virginia Court of Appeals decision may give a hint as to the real reason the County engaged in the Pentagon City Sector Plan and the MMH/EHO zoning changes: “The Court’s opinion starts with noting that it was after Amazon’s 2018 decision to bring HQ2 to Arlington that the Board started its efforts to increase density in Pentagon City. The timing of the MMH/EHO zoning amendments to increase density on residential lots across Arlington followed the same timeline. Now Amazon hasn’t brought the jobs to Arlington that it promised. And Arlington continues to exceed the housing targets that the Metropolitan Washington Council of Governments set.”

Neighbors for Neighborhoods continues to raise funds for the litigation, which is in the very expensive discovery phase. Contributions can be made by:

GoFundMe: Donate Now

Venmo: Search Neighbors for Neighborhoods

Check: payable to NfN Litigation Fund LLC – mail to: 1405 S. Fern St., Box 556, Arlington, Va.22202

Media inquiries: [email redacted]

APRIL 29, 2024: FOR IMMEDIATE RELEASE

ARLINGTON COUNTY BOARD SUBPOENAS RESIDENTS TO FIND OUT WHO SUPPORTS THE LAWSUIT AGAINST IT IN THE MISSING MIDDLE HOUSING/EXPANDED HOUSING OPTIONS (EHO) ZONING CASE AND WHO HAS SAID WHAT IN OPPOSITION TO EHO ZONING

The Neighbors for Neighborhoods Litigation Fund, LLC receives contributions for the lawsuit filed by ten Arlington residents against the County Board regarding its EHO zoning. More than 750 contributions have been received via GoFundMe, Venmo, and by check.

Last week, the private law firm representing the County Board in the EHO zoning litigation issued a subpoena to find out who these people are.

The subpoena was issued to Dan Creedon, a long-time Arlington resident who helped found Neighbors for Neighborhoods (NfN). He is not a party to the lawsuit. The subpoena seeks:

• Communications with any person seeking support for the litigation;

• Communications with any organization regarding support of the litigation; and

• Any social media posts, or any public statements, regarding the litigation.

This request gives new meaning to the name that many residents have used, mostly in jest, to describe its local government: The People’s Republic of Arlington.

The identities of those supporting the litigation have nothing to do with the fact that the Board violated state law when it failed to conduct studies of the impact of increased density, as alleged in the plaintiffs’ complaint.

The United States Supreme Court has jealously protected the right to associate and financially support causes that challenge those in power.

Drawing on those bedrock values, after a City Council in Florida sought the names of those supporting litigation against it over an alleged improper zoning decision, a Court of Appeals in Florida in Mathews v. City of Maitland (2006) ruled:

“The compelled disclosure of the names of citizens exercising their right to participate in the democratic process would create a chilling effect on their rights to organize and associate.” The Court added that “disclosure of contributors’ identity would subject them to possible intimidation or coercion” and that disclosure “would likely affect the . . . ability to raise funds.”

The County’s efforts to name names goes even further, commanding that the plaintiffs in the lawsuit produce:

• The names of anyone with whom they spoke about EHO zoning, including the dates and substance of the conversations;

• All social media/online forums that they read or commented on about EHO zoning;

• All efforts they made to advocate against EHO zoning; and

• All documents reviewed in buying their Arlington homes.

The County Board has a disturbing pattern of trying to chill opposition, going so far as to sue residents two years ago after they challenged a decision about County bus parking.

https://www.arlnow.com/2024/01/24/county-drops-lawsuit-against-civic-association-residents-over-attempt-to-block-bus-parking/ The County finally dropped its suit three months ago.

And while the County saw fit to use the courts against its own residents, in a September hearing the County Attorney argued that it was “a subversion of the democratic process” for the Arlington Circuit Court to review the County Board’s actions in adopting EHO zoning.

Judge David Schell disagreed, ruling 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.” He has repeatedly denied the County’s motions to dismiss or delay the trial.

Dan Creedon, whose documents the County seeks, says: “NfN will vigorously defend the First Amendment rights of Arlington residents to associate and challenge the Board’s decisions and we call on the Arlington County Board to cease its efforts to chill these rights. NfN continues to accept donations in support of the litigation.”

GoFundMe: https://www.gofundme.com/f/suit-re-end-of-singlefamily-zoning-in-arlington

Venmo: Search Neighbors for Neighborhoods

Check: payable to NfN Litigation Fund LLC – mail to: 1405 S. Fern St., Box 556, Arlington, Va.22202

The case is scheduled for trial to begin on July 8 in Arlington Circuit Court.

Media Contact: [email redacted]

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.”

**********************************************************

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.”

*************************************************************************

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:

https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:0918eab6-2911-3ceb-99a4-049a6b240d39

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:

https://drive.google.com/file/d/1ZGLRd0cFj9WMx9s9Yz6SqA5n3dc3Iil0/view

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.

https://serafinre.com/inventory/2561-n-vermont-street-arlington-sale/

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:

https://www.arlingtonva.us/Government/Programs/Building/Permits/EHO/Tracker

************************************************************************************************************************************************************

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:

Washington Post

ArlNow

NBC Washington

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