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Judge to Rule Next Month on Arlington Missing Middle Housing

A ruling on the lawsuit filed by ten Arlington homeowners challenging the legality of Arlington’s rezoning to boost multifamily housing is now set for Oct. 19, a Circuit Court judge announced Sept. 19 following a morning of oral arguments.

Substitute retired Judge David S. Schell of Fairfax (the Arlington judges recused themselves) remained noncommittal as attorneys for the plaintiffs and the county fine-tuned arguments they filed this spring and summer, saying he would take the matter under advisement.

Plaintiffs in Marcia Nordgren et al v. Arlington County Board named the county board, county attorney and Planning Commission as defendants, arguing for invalidation of the rezoning that took effect July 1 to expand countywide the right of landowners to build multifamily structures of up to six units in areas long restricted to single-family homes.

Fairfax-based attorney Gifford Hampshire, seeking to take the case to trial, elaborated on the seven ways his clients 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. He also alleged violations of the state Freedom of Information law documents (which was argued before Schell in a separate hearing) and the tree preservation requirements of the Chesapeake Bay Preservation Ordinance.

County attorney MinhChau N. Corr spoke first to ask the judge for immediate dismissal, characterizing the plaintiffs as lacking standing and saying their case is not “ripe” given that it was filed before the rezoning took effect and before any building permits were requested.

She described the plaintiffs as citizens who “disagree with a decision by a legislative body—which is not uncommon,” she noted. But county board decisions “are not always to everyone’s liking, yet the plaintiffs are asking the court to overturn a legislative decision” arrived at through a three-year public process and input from hundreds of members of the public. And their lack of standing, she argued, standing being “fundamental to bringing a case,” had challenged the rezoning speculatively “in a procedural vacuum” and with “no showing of harm,” given that no multifamily projects had been planned near their properties.

Corr also rejected the plaintiff’s claim that the county failed to conduct sufficient studies of the impact of denser development on schools, traffic, parking and storm drainage. The law doesn’t specify what types of studies, and county staff are “not just people off the street, but professionals” using their judgment.

Hamsphire faulted the county for ushering in a four-fold increase in density with years of shifting goals and documents that “morphed over time” and left the public and builders confused. “No one could tell what properties it applies to,” he said. More important than what staff planners think is “likely” to be only a modest density increase, which they assert infrastructure can handle, is what is “allowable” by law.

The request to advertise the coming rezoning, he argued, should have been a two-step process to formally “initiate” public engagement in the topic, which the county’s January 2023 resolution failed to do, he said. The plaintiffs have standing, he added, because such a rezoning “must consider the impact on the quality of life for all Arlington citizens.”  

Judge Schell, specialist in real estate, family law and business disputes, will have a month to prepare his ruling.  

As of Sept. 15, the county has received 22 applications for expanded housing projects from builders, of which eight have been approved. They include five six-plex structures, one three-townhouse project, one semi-detached pair of homes and one duplex.