Client Alert: Update – Virginia Court Invalidates Arlington’s Missing Middle Policy
By: Joseph L. Stiles and Nicole Bemberis*
On October 25, 2024, Arlington County Court was filled to capacity as Judge Schell delivered his final judgment in the case of Marcia Nordgren v. Arlington County Board. This ruling provided much-needed clarity following the initial oral opinion, which had declared Arlington's Expanded Housing Option ("EHO") zoning and development policy unlawful. The implications of Judge Schell's decision in the Nordgren case were briefly discussed in our previous article: Implications of the Arlington Circuit Discussion on the "Missing Middle" Policy. This surprising decision is viewed as a significant step toward reassessing the drastic housing policy changes and allowing the County the necessary time to "get it right". Though the ruling in Nordgren does not overturn the invalidation of Arlington's EHO policy, it does provide additional insight into the developing status and application of EHO policies in Virginia localities.
Judge David Schell's ruling also provides a vital reprieve for certain developers and projects that were underway prior to this final ruling. Developers and owners with qualifying projects will be permitted to continue work and complete such projects under the EHO policies as they existed prior to the Nordgren decision. In light of Arlington's EHO policy having been declared unlawful and currently being under appeal, the new decision - by allowing pending projects to continue - provides immediate financial and functional relief to developers, owners, and the communities benefitted by EHO development.
Key Points of the Ruling:
- Continuation of Projects: Developers who had received permission from the County prior to the ruling in Nordgren to build multi-family residences in single-family neighborhoods are allowed to proceed with their projects. This decision impacts 45 properties that had obtained EHO permits before the policy was invalidated.
- Required Notices: Developers and owners responsible for these properties must place a conspicuous notice in the land records identifying and describing the risks to future owners that, depending on the outcome of the ongoing appeal, the resulting zoning ordinance or policy may include: limitation of the number and nature of permitted occupancy or dwelling space (giving rise to evictions or buyouts); requirement that owners bring properties into compliance with the single-family residential zoning that applies in the absence of the EHO policy (giving rise to substantial and expensive renovations or redevelopment, and a flood of rezoning applications).
- Affected Properties: Out of the 45 properties affected by Judge Schell's ruling:
- 12 projects had received demolition permits.
- 7 projects had received building permits.
- 2 projects were already under construction.
- Additionally, the county had issued one certificate of occupancy for an internal conversion.
Judge's Key Considerations in Ruling:
Judge Schell highlighted that the county's failure to notify developers about the pending EHO litigation played a crucial role in his decision. This lack of communication contributed to the ruling that allowed the projects to proceed, provided the required notices were placed in the land records. This ruling offers a temporary reprieve for developers and property owners involved in these projects, while the broader legal battle over the EHO policy continues. The circumstances giving rise to this case underscore the importance of transparency and communication between county authorities and developers, especially in the context of ongoing litigation.
Direct Quotes from the Opinion Letter:
Judge Schell's opinion letter emphasized several critical points:
- Procedural Requirements: "The appellate courts of Virginia insist upon strict compliance with all procedural requirements in the code. This court must take notice of these decisions by the appellate courts. The procedural requirements of the code are there to provide adequate notice and protection to its citizens when a local governing body determines to change zoning."
- Localized Impact: "The Board failed to consider the localized impact of EHO development upon the neighborhoods where EHO housing will be built. This failure to consider the localized impact violates 15.2-2284, specifically but not limited to the requirement for the Board to consider 'the existing use and character of property, the suitability of property for various uses, and the trends of growth or change.'"
- Standing: "Accordingly, I find that the plaintiffs have standing to bring this action by virtue of their ownership of property rezoned pursuant to the Expanded Housing Option Development."
Comparison with White et al. v. Charlottesville City Council:
The case of White et al. v. Charlottesville City Council shares several similarities with the Nordgren case. Both cases involve challenges to significant zoning changes that increase residential density and eliminate single-family zoning. In White et al., the plaintiffs argue that the new zoning ordinance adopted by Charlottesville City Council is void due to non-compliance with statutory requirements and failure to consider the impact on local infrastructure and community needs. Both cases highlight the failure of the respective councils to consider the localized impact of increased density on neighborhoods, including traffic, stormwater management, and school overcrowding. In Nordgren, the court found that the Arlington County Board failed to properly initiate the zoning amendment. Similarly, in White et al., the plaintiffs argue that the Charlottesville City Council failed to comply with statutory requirements, including the need for traffic impact analyses and consideration of infrastructure needs. Lastly, in both cases, the courts addressed the issue of standing, with the plaintiffs in each case being homeowners directly affected by the zoning changes.
Conclusion:
The rulings in both Nordgren and White et al. underscore the importance of procedural compliance and thorough consideration of localized impacts when enacting significant zoning changes. These cases highlight the need for transparency, communication, and adherence to statutory requirements to protect the rights and interests of affected homeowners and communities.
For a more detailed discussion of the status and application of permissive EHO zoning policies, and the implications for developers, landowners, and purchasers in Virginia and the Mid-Atlantic, please feel free to contact the authors or any of the capable attorneys on Whiteford's real estate team. Stay tuned to these client alerts for further details and updates on the Marcia Nordgren v. Arlington County Board appeal. We are committed to observing and analyzing the development of this and other zoning trends, and to forming a full understanding of the implications for, and risks to, development stakeholders in Virginia and beyond.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.