Arlington to appeal judicial ruling invalidating middle missing zoning

Many communities across Virginia have altered their rules on development and land use in order to make it easier for more dwelling units to be built on what had traditionally been reserved for single family housing. 

Not everyone is in agreement and have pursued relief in the legal system including a group of Charlottesville property owners whose suit against the city’s new development code has recently been allowed to continue due to a ruling by Charlottesville Circuit Court Judge Claude Worrell. 

In late September, retired Fairfax Circuit Court Judge David Schell ruled in favor of plaintiffs who sued over Arlington County’s Expanded Housing Option program which made development of six-unit buildings by-right under certain scenarios. A written opinion was issued in late October.

That began the 30-day clock for Arlington to decide whether they should appeal Judge Schell’s ruling. On Tuesday, the County Board directed their legal staff to move forward with one. 

 “Since late September, the Board has deliberated on this ruling in the Expanded Housing Option development trial,” said Libby Garvey, the Chair of the Arlington Board. “The Board considered adopting a revised ordinance but determined it is not feasible to do so based under the legal construction and substance of the judge’s ruling.” 

Garvey said the Board is concerned that the ruling could affect other land use regulations across the Commonwealth.

“These concerns must be addressed and clarified by a higher court,” Garvey said. 

Since the Board’s vote on November 19, Arlington has launched a website with information about the five day trial and the county’s appeal. 

“Using data from previous neighborhood parking capacity survey, the County was able to conclude that EHO development would have a marginal effect on parking capacity in the low residential districts, where parking averages at 26 percent capacity,” reads one bit of evidence that had been presented on day four of the trial. 

There is no date set for another hearing in the White v. Charlottesville case. This week, the attorney for the plaintiffs said he expected to submit more evidence. For more information, take a look at the article I wrote this week for C-Ville Weekly. 

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