By Andrew Crouch and Charles Gardner
In March 2023, Arlington County, Virginia passed an amendment to its zoning ordinance which legalized so-called “missing middle” housing typologies in several residential districts, including many which had been zoned for single-family homes. Ten local homeowners filed suit in Arlington County Circuit Court in April 2023, alleging among other things that the proper procedure for amending the ordinance was not followed and the zoning change should be invalidated. The County Board and Planning Commission, the defendants in the lawsuit, fired back, alleging a fatal lack of standing and claims that, if they were true, could not and should not be resolved by the circuit court.
During proceedings held on October 19, 2023, Judge David Schell delivered a win to the plaintiffs, ruling that they have demonstrated standing by virtue of being within the rezoned area and that the case against Arlington County’s missing middle zoning ordinance amendment therefore may proceed to trial. Initial trial proceedings are scheduled for November 16, 2023. Judge Schell also ruled in favor of the defendants on a separate issue, holding that one of the plaintiffs’ seven claims, alleging a violation of the Virginia Freedom of Information Act (VFOIA), should be dismissed.
With respect to standing, Judge Schell ruled that the claims made by the homeowners, if true and presented in the most favorable light, were justiciable and ripe for relief, and that the homeowners had standing to challenge a general zoning ordinance. The latter holding may set precedent, as the cases presented to the court by the parties did not address the issue of standing in the context of an ordinance-level, district-wide zoning change. In their 162-page complaint, plaintiffs claim entitlement to sue on the basis that the ordinance “will result in a higher tax assessment,” although this appears speculative as plaintiffs did not allege that their tax burdens had actually increased. In other states, courts have held that the mere allegation of a prospective tax increase, without some explanation for particularized harm, is insufficient to confer standing in the context of broad rezonings. See Floyd v. Mayor and City Council of Baltimore, 463 Md. 226 (2019); see also West Farms Mall, LLC v. Town of West Hartford, 279 Conn. 1 (2006).
In his ruling on the merits of the VFOIA count following a limited trial on that count last month, Judge Schell held that while the plaintiffs sufficiently alleged a violation, the violation was a technical one which did not necessitate judicial intervention. In that count, which is dismissed, plaintiffs had alleged the County Board violated the VFOIA by (1) not making materials available online and (2) not immediately furnishing the “Chair’s Mark,” a document made by the Chairman for structuring the March hearings.
Judge Schell also suggested that Count V of the plaintiff’s complaint, which makes the legally tenuous argument that the ordinance is arbitrary and capricious, would be dismissed after trial. Apart from Count V, Plaintiffs’ complaint does not challenge the constitutionality of the county ordinance, but rather alleges a series of procedural deficiencies or failures to perform sufficient studies or hold enough hearings despite the ordinance being the result of a multi-year process of outreach and, public engagement.
The lawsuit, captioned Nordgren et al. v. County Board of Arlington et al. has effectively delayed the implementation of the county ordinance, which was scheduled to go into effect on July 1, 2023, with many builders awaiting the outcome of the litigation before proceeding with construction.