A circuit court judge has overturned Arlington’s Missing Middle zoning changes.
Judge David Schell ruled against the county on four counts this morning (Friday), finding that the county failed to adequately consider localized impacts, failed to follow proper procedure and violated state tree canopy requirements when adopting the amendments.
As of today, the county cannot lawfully issue any more permits under the Expanded Housing Option, which allowed for the construction of up to six-unit buildings on properties that were previously zoned for only single-family homes.
In a packed courtroom following the judge’s decision, plaintiff Marcia Nordgren exchanged emotional hugs with fellow opponents of the changes that the Arlington County Board unanimously approved in March 2023.
“We are very gratified by the court’s ruling,” Nordgren said in a statement. “The Missing Middle EHO zoning ordinance is void and invalid. Because of this lawsuit, we’ve made a difference.”
The ruling
In a ruling read aloud from the bench, Schell referenced testimony from witnesses about possible wastewater backups and overflows that might result from the strain additional housing could place on stormwater and sewage infrastructure.
Although a county expert testified that Arlington does, in fact, have sufficient infrastructure to support anticipated growth, the judge found “no evidence presented that the county considered likely overflows” and other localized impacts.
“It appears from the evidence that no consideration was given to the effect of additional sewage,” he said.
On a more procedural note, the judge found that a County Board resolution to advertise “contains no statement that the County Board is resolving to amend the zoning ordinance.” He also found that the Board’s ordinance “unlawfully delegated legislative responsibility” to county staff.
Finally, the judge found that EHO zoning fails to comply with tree planting and placement standards in the Virginia Code.
The county issued the following statement today.
Arlington County is disappointed in the judge’s ruling today in the Expanded Housing Option (EHO) Development trial (Nordgren v. Arlington County Board). We are reviewing the decision and determining the appropriate next steps to properly adhere to the ruling.
The County Board remains committed to ensuring Arlington has housing options that meet our community’s diverse and growing needs.
The Board is exploring potential options moving forward, including appeal.
Extensive controversy
Missing Middle may currently be the most divisive topic in Arlington.
Proponents have hailed it as an opportunity to expand Arlington’s housing stock and improve housing affordability, amid housing prices that continue to grow and make the county increasingly unaffordable for middle-income households. Critics, meanwhile, have argued that many homes built under the zoning changes would still be too expensive for those households to afford.
Likely impacts on county infrastructure have been another key pressure point, with several proposed EHO developments — including one a half mile from a Metro station — receiving pushback from neighbors concerned about parking and changes to neighborhood character.
As the lawsuit went to trial in July, the Arlington NAACP waded into the fray with additional racial equity arguments — asserting that single-family zoning has racist origins and that undoing Missing Middle would be a step backward for racial progress.
In the shadow of these debates, the zoning changes featured prominently in this year’s Democratic County Board primary. A supporter of Missing Middle, JD Spain Sr., won that race .
Local groups respond
Schell’s decision earned immediate praise from many opponents of the change.
“The plaintiffs had the courage to stand up to the Arlington County Board to fight for the rule of law,” said Dan Creedon, a representative from Neighbors for Neighborhoods, which has raised over $100,000 to support the lawsuit. “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.”
Natalie Roy, who lost to Spain on a platform sharply critical of Missing Middle, said the ruling “allows Arlington to reset and get it right.”
“It is an opportunity to do the requisite studies and conduct a robust public engagement process that should have been done from the beginning with stakeholders across the county,” she said. “It means we can stop wasting taxpayer dollars on expensive law firms and anti-neighborhood schemes and find real housing solutions.”
Missing Middle proponents, meanwhile, expressed severe disappointment and hope for a rapid response from the county.
“We look forward to working with the Arlington County Board and the County’s expert staff to expeditiously pursue a revised ordinance to ensure that expanded housing opportunities move forward without delay and to advance an appeal based on the strength of the evidence already submitted in this case,” the Northern Virginia Affordable Housing Alliance said in a statement.
The organization noted, however, that this may be an involved process.
“While one count can likely be adjusted administratively, the others are likely to require reconsideration of the EHO permitting process, a repeat demonstration of the fact that our sewer system has 3 times the current capacity to accomodate any future residential development, and the potential removal of the additional tree canopy requirement from the ordinance,” the group said.
“In order to address these pending issues, the public and the County deserve a written statement to better understand the rationale the judge utilized to come to his opinions.”
Speaking on behalf of Virginians Organized for Interfaith Community Engagement, the Rev. Ashley Goff called Schell’s ruling “a textbook example of why we have the housing crisis we do.”
“It is a shame that a few wealthy and well-connected owners of single-family detached homes can derail a democratic process that was years in the making, involved a rigorous legislative and community review, was broadly supported by Arlington residents, and was passed unanimously by the Arlington County Board,” she said. “We urge Arlington County to address this wrong as speedily and forcefully as possible.”
Anne Bodine, a representative for the anti-EHO group Arlingtonians for our Sustainable Future, countered: “The County needs now to step back and reconsider its entire approach and plan up front for population growth that comes — as Judge Schell noted — when the county approves ‘more houses, more people, and more kids.'”
Local News
Comments / 0