Arlington County Officially Rebuts `Missing Middle’ Lawsuit

The county attorney for Arlington on May 23 filed a legal rebuttal urging dismissal of the lawsuit brought in April by 10 Arlington homeowners who claimed that the process by which the revised housing zoning ordinance approved March 23 by the county board and advisory commissions was flawed and illegal.

The seven-page response to the plaintiffs 162-page April complaint was drafted by attorney MinhChau N. Corr and challenged the lawsuit’s assertions on the issues of standing, state law and government transparency.

In Marcia Nordgren et al v. Arlington County Board (naming the county board, county attorney and Planning Commission as defendants), the homeowners argued that the Circuit Court should block the rezoning—set to take effect July 1—that expands countywide the right of landowners to built multifamily structures up to six units in areas currently restricted to single-family homes.

Reiterating the rhetoric of opponents of the policy change, the suit drafted by Fairfax attorney Gifford Hampshire cited seven ways that plaintiffs believe the board’s “arbitrary and capricious” policymaking violates state and local law. Among them: an insufficient January advertisement and a failure to conduct detailed studies of the zoning changes’ impact on the economy, tree canopy, storm drainage, traffic, schools and parking. They also alleged violations of 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 cited the locations of their own properties that allegedly would be harmed.

In seeking a dismissal, the county attorney first requested that the judge allow major additions to the record created by the plaintiffs. These should include, the county argued, the Zoning Amendment itself (passed in March), the text of the Resolution Approving Advertising, the county board’s voting record and the legislative record of the Planning Commission, plans and presentations from county staff and public correspondence and speaker slips at multiple hearings.

 MinhChau Corr then argued that the plaintiffs lack standing, that the matter is not yet ripe (since nothing has been built) and that “there is no legal requirement to conduct such studies or investigations for every legislative action taken by the board.” She dismissed the characterization “arbitrary and capricious,” saying the county’s action met the “fairly debatable” standard. And she noted that the statute relating to the alleged violation of rules on posting meeting plans doesn’t require “online,” only release at same time as presented to board. The plaintiff’s demand to have seen the chairman’s mark online was without merit, she argued, because the document simply outlined the order for items to be discussed at a meeting.

The plaintiffs’ Fairfax-based attorney Hampshire declined a News-Press request for comment. But he noted that the four Arlington Circuit Court Judges—William Newman, Daniel Fiore II, Louise DiMatteo and Judith Wheat–on May 25 sent an order notifying the Virginia Supreme Court that these judges should properly be disqualified for being “situated” in Arlington. Hence the case, set for a July 11 hearing, could be assigned to a judge outside the county.