Opponents of Missing Middle Housing Proposal hold signs before a County Board meeting in 2022: “No upzoning; no duplex here.”
“Sanity prevails. This seminal decision allows Arlington to reset and get it right.”
— Natalie Roy
“Our lawyers said [plaintiffs] don’t have a leg to stand on. It’s a really thin case. Zoning is one of the few things we can do. We can’t have people pushing us around.”
— Libby Garvey, Arlington County Board Chair
Arlington County Courtroom 11A was packed as Circuit Court Judge David Schell issued his judgment in the case Marcia Nordgren et al vs Arlington County Board. It was, as one observer said afterwards, truly a David and Goliath story. It was also an issue on which candidates for the Arlington County Board had sparred. Elections were won and lost on the zoning changes the County put forth allowing multiplex buildings to be built on single family lots. Those who disagreed were called NIMBYs and racist; those who ran on the idea of expanding the housing inventory were called YIMBYs and pro-builder. Many thought it was rushed through, would not accomplish its stated goal, and would only benefit builders. Most residents thought it couldn’t happen to their neighborhood or weren’t even sure what the EHO (Expanded Housing Option) was, even when hundreds of protest signs erupted on medians.
But ten homeowners, representing many more, weren’t having it. They sued Arlington County last year for approving the EHO zoning policy and asked the Judge to declare the EHO zoning invalid based on each of six counts in the complaint. The suit alleged, among other things, that Arlington violated the Virginia state code by failing to conduct increased-density impact studies on schools, stormwater, sewers, transportation, the environment, and other critical areas. There was a sense, as articulated during debates, that the old “Arlington Way” of consensus and community was taking back seat to developers’ hunger for building plots or, conversely, that lower and middle-class county workers, police and fire personnel, and teachers could no longer afford to live in the county because rich, entitled people didn’t want them there.
The battle began. When Arlington County made a motion to dismiss the suit based on lack of standing, the judge ruled that the plaintiffs did indeed have standing as landowners. The County hired the Richmond law firm of Gentry Locke to defend its policy, with the price tag of more than $1,011,733.67 (so far). Arlington taxpayers footed the bill. Marcia Nordgren and neighbors cobbled together over $100,000 to hire a lawyer to state their case, using their own money, time and contributions from Neighbors for Neighborhoods. They are still paying the bills.
County Board Chair Libby Garvey told civic associations in September before the ruling, “Our lawyers said they don’t have a leg to stand on. It’s a really thin case. Zoning is one of the few things we can do. We can’t have people pushing us around.”
But who was pushing whom around? Dan Creedon, who heads Neighbors for Neighborhoods, said the County Board issued him a subpoena to seek information from him about who was supporting the lawsuit to overturn the EHO policy. Defense lawyers tried to dismiss the case more than once and tried to discourage the plaintiffs by asking for multiple depositions.
BUT ON FRIDAY morning, the residents who had battled a policy they knew was poorly planned, were vindicated when the Judge ruled in their favor. As he went through each count, the crowd began to look around in a mixture of disbelief and joy. On four counts, the judge agreed the Board failed to adhere to Virginia Code and unlawfully delegated legislative authority in granting a special exception for by-right EHO development, ceding too much authority to staff. But perhaps more egregious was what came out at trial, that the County had tried to bar important testimony that explained why the EHO policy could be a disaster in terms of stormwater and sewage management, and tried to delete from the record a comment made during a meeting “because residents would FOIA the transcript and find out.” Finally, the permits that had already been approved revealed that tear-downs of homes costing well under a million dollars would be replaced by three or more homes costing well over a million dollars each. In other words, the EHO policy appeared less likely to provide affordable housing stock and more likely to increase the tax base.
If civic associations were upset about the EHO policy to begin with, they were increasingly alarmed at the County’s attitude during the trial and at the possibility the County would appeal. After the judge’s ruling on Friday, Kathy Siebert, a longtime community activist, said the County Board should have to pay back the legal bill taxpayers footed in a tight budget year when schools and other services will have less as a result.
Natalie Roy, who fought EHO twice during her runs for County Board, told supporters, “Sanity prevails. This seminal decision 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 from across the County. It means we can stop wasting taxpayers dollars on expensive law firms and anti-neighborhood schemes and find real housing solutions. Most importantly this ruling speaks volumes about governance. The County Board and staff work for the citizens of Arlington, not the other way around. Today’s decision is a turning point where we can join together to find common sense solutions.”
In reaction, Arlington County released a statement on the ruling: “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.”
Numerous civic organizations have commented on the ruling and the path forward. For more, see:
Arlingtonians for Upzoning Transparency (AFUT) https://afut.org
Arlingtonians for a Sustainable Future https://www.asf-virginia.org
Neighbors for Neighborhoods https://www.gofundme.com/f/suit-re-end-of-singlefamily-zoning-in-arlington
Arlington County Civic Federation https://www.civfed.org - for background on the “Arlington Way”