Commentary, Local Commentary

Our Man in Arlington

The 162-page lawsuit seeking to block the Missing Middle housing rezoning approved by the county  in March gives hope to vocal opponents—many of whom continue to display “Save Our Neighborhood” yard signs.

But opinions appear cautious on prospects for undoing the plan to allow by-right building of multi-family structures in long-time single-family neighborhoods.

The organized critics at Arlingtonians for Our Sustainable Future and the Arlingtonians for Upzoning Transparency issued statements saying they were not involved in the suit filed March 21 by 10 homeowners under the label   Neighbors for Neighborhoods. But “the allegations appear to identify serious issues,” wrote ASF, noting that the Virginia Supreme Court in March struck down Fairfax County’s narrower zoning reform due to its enactment via remote meetings during the pandemic.

The pro-Missing Middle YIMBYs of NOVA is “not worried about the outcome,” said its Arlington vice president Grace White. “Missing Middle is an important yet incremental change that was approved unanimously by the county board after years of study, public comment and deliberation. We invite opponents of Missing Middle to join us in spending their efforts advocating for solutions, rather than challenging the validity of a duly enacted law in court.”

The residents who filed the complaint in Arlington Circuit Court named county attorney Minh Char Corr, the county board and the Planning Commission, asking that a judge block the land-use changes that take effect July 1. Reiterating the rhetoric of opponents of the policy change, the suit drafted by Fairfax attorney Gifford Hampshire cites seven ways plaintiffs believe the board’s “arbitrary and capricious” policymaking violates state law. Among them: a failure to advertise properly or conduct detailed studies of impact on the economy, tree canopy, storm drainage, traffic, schools and parking, while violating FOIA law requiring prompt release of documents.

The county’s plan “only increases density without promoting goals in the public interest,” said the plaintiffs. They cite the locations of their own properties that allegedly would be harmed.

Wells Harrell, a federal attorney and vice chair of the NAACP Arlington Branch Housing Committee who is familiar with judicial review of zoning, told me “the plaintiffs appear to be throwing everything against the wall to see what sticks. Many of the claims allege defects in the process. It seems like a stretch to suppose the commission and county board were so inept that they failed to follow basic, well-established steps in the lawmaking process. Other claims are more substantive,” alleging Arlington “acted unreasonably and without regard to certain factors under state law.” But even these claims “face tall hurdles,” he said. “It’s settled law in Virginia that zoning amendments are presumed valid and must be upheld as long as their reasonableness is ‘fairly debatable.’ The problem for plaintiffs is that, while they accuse the county board of failing to consider impacts, they disregard the volumes of information on benefits of legalizing missing middle homes.”

But litigation attorney Steven Krieger sees promise. “As a threshold matter, if the court finds that the county committed the procedural errors cited in the lawsuit, the court should void the amendment,” he told me via email. “If the court finds no procedural errors, it will consider whether the county’s decision was ‘arbitrary’ or ‘capricious,’ a relatively difficult burden to meet because plaintiffs will have to show that the decision to amend the zoning ordinance did not adequately consider impacts or will not meet stated goals. However, since the county framed the amendment as a way to address diversity and housing affordability for the middle class, but lacks sufficient data to support the conclusions, the plaintiffs could prevail; though, it will be easier on the procedural claims.”


Six star athletes will be inducted Oct. 11 into the Arlington Sports Hall of Fame:

Noel Deskins (Yorktown ‘79) track & field record-holder at Yorktown and James Madison University; Eric Metcalf (Bishop O’Connell ‘85) NFL running and track & field record-holder at University of Texas; Tia Moore (Wakefield ‘99) All-Met and 1,000-point basketball star, 1,500-point scorer and star at Christopher Newport University; Henry Crawford Palmer (Washington-Liberty ‘88) All-Met basketball star and member of Duke University 1991 NCAA champs; Walter Scott Palmer (W-L ‘86) basketball standout W-L, Dartmouth College and NBA; Jake Scott, posthumously, (W-L, then Bullis ‘66) All-SEC safety at Georgia, NFL safety/punt returner with Washington and Miami, Super Bowl VII MVP.