By Wafir Salih | wsalih@alextimes.com

The “Missing Middle” ordinance was struck down in court the morning of Sept. 27 in neighboring Arlington following a nearly two-year long legal battle.

Judge David S. Schell ruled against the Arlington Country Board on four out of the seven counts brought forward by the plaintiffs.

“In light of counts one, three, four, [seven] … the court finds the [Expanded Housing Option] ordinance is void and inapplicable,” Schell said.

The courtroom, filled with residents, broke into applause when court was adjourned, with one woman whispering “finally” when Schell delivered his ruling. Schell is a retired Fairfax County judge who was appointed to hear the Arlington case after all of the county’s Circuit Court judges recused themselves from the case.

Arlington’s “Missing Middle” ordinance, like Zoning for Housing in Alexandria, was approved in a unanimous vote despite strong resident opposition. It was enacted by the County Board in March 2023 following years of discussion and debate.

Dino Drudi, an Alexandria resident who was present at the Arlington court hearing, said Schell was thorough when he began the hearing by quoting the factors of the case, the number of witnesses and the number of exhibits.

“Judge Schell framed for the historical context the gravity of the case with remarkable humility,” Drudi said. “He avoided stating the obvious: that this is a precedent-setting case.”

Schell is also presiding over the Zoning for Housing lawsuit in Alexandria because, like Arlington, all of the city’s Circuit Court judges recused themselves from the case. Schell ruled in an Aug. 26 hearing that the plaintiffs in Alexandria have standing for their case, which sets the stage for a trial here.

Given the similarities between the two cases, many believed what would happen in Arlington over the “Missing Middle” could signal what’s to come in Alexandria.

Roy Byrd, chair of the Coalition for a Livable Alexandria and an Independent candidate for City Council, previously told the Times that both the City of Alexandria’s legal team and the plaintiffs would be closely watching how Schell decides the “Missing Middle” case and that it could shape their strategies moving forward.

“In terms of … the ultimate outcome, I think no one either on the city side or on the plaintiff side can really say definitively with any certainty at all until after the Arlington case is decided, because that has such a major impact on the legal strategy for either side moving forward,” Byrd said.

Drudi said the City of Alexandria should consider settling the ZFH lawsuit before it goes to trial.

“I would hope that the Alexandria city government would attempt to work with the plaintiffs and the community on a settlement,” Drudi said.

Ebony Fleming, Alexandria’s director of communications, declined to provide comment on the result of “Missing Middle,” citing pending litigation, but said the city was confident on the legality of the ordinance.

“The city remains confident that the Zoning for Housing initiative was adopted in accordance with applicable law and is prepared to defend the amendments going forward,” Fleming wrote in a statement to the Times.

Marcia Nordgren, an Arlington resident and one of the plaintiffs in the Missing Middle case, said she believes that Schell’s decision will set a precedent in Virginia law for zoning cases, including the ZFH lawsuit.

“I don’t know all the facts in the Alexandria case, but presumably the same legal principles apply,” Nordgren said.

Below are the counts of the lawsuit and how Schell ruled:

• “COUNT I – The Board and Planning Commission failed to promulgate an initiating resolution or motion for the Zoning Amendment in accordance with Virginia Law.” Schell sided with the plaintiffs on this count.
• “COUNT II – The Board failed to advertise the Zoning Amendment per Virginia law.” Schell sided with the county and said the advertisement the county produced did provide notice to the public.
• “COUNT III – The Zoning Amendment is void ab initio because the Board acted ultra vires by failing to reasonably consider many Virginia Code §15.2-2284 factors.”

Plaintiffs argued under Count III that the Board failed to consider the Comprehensive Plan, which includes stormwater and sewer management. Schell said the Board only needed to show they had demonstrated reasonableness in addressing stormwater and sewer concerns; however, he ruled that they failed to do so.

“No study was brought forward on how flooding would affect residence from the building of multi-duplexes,” Schell said.

• “COUNT IV – The Board unlawfully delegated legislative authority in granting a special exception for EHO Development.” Schell ruled that the Arlington board inappropriately delegated permit responsibilities to city staff, and not the legislative body so that the public could provide input.
• “COUNT V – The Zoning Amendment is arbitrary and capricious and bears no reasonable relationship to public health, safety, morals or general welfare.” Schell sided with the county on this count.
• “COUNT VII – The landscaping provision of the Zoning Amendment renders the Zoning Amendment void ab initio because the Board acted ultra vires by acting contrary to Virginia Code § 15.2-961.” Schell sided with the plaintiffs and cited the Dillon rule.

Count VI, in which the lawsuit states that “the Board failed to comply with the Virginia Freedom of Information Act’s requirements,” was dismissed in a previous hearing.