Virginia Court Rules Against Arlington "Missing Middle" Zoning Reform

The ruling highlights need for state-level zoning reform and stronger judicial protection of constitutional property rights.

Today, a Virginia state trial court ruled against Arlington County's "missing middle" zoning reform, which allows owners of land previously zoned for single-family homes only, to build multifamily residences, with up to four or six units. I previously wrote about the Arlington missing middle reforms (which I support) here and here. The new policy could do much to protect property rights, reduce housing costs, and make it possible for more people to move to Arlington and make use of the many job and education opportunities available in the area, thereby benefiting both themselves and the regional economy.

In addition to being a property and land-use scholar, I am also an Arlington County resident. When people claim I only advocate zoning deregulation in places where other people live, I respond by citing my support for "missing middle."

The Arlington Now website has a helpful summary of the ruling (the decision itself does not seem to be available online):

A circuit court judge has overturned Arlington's Missing Middle zoning changes.

Judge David Schell ruled against the county on four counts this morning (Friday), finding that the county failed to adequately consider localized impacts, failed to follow proper procedure and violated state tree canopy requirements when adopting the amendments.

As of today, the county cannot lawfully issue any more permits under the Expanded Housing Option, which allowed for the construction of up to six-unit buildings on properties that were previously zoned for only single-family homes…

Although a county expert testified that Arlington does, in fact, have sufficient infrastructure to support anticipated growth, the judge found "no evidence presented that the county considered likely overflows" and other localized impacts.

"It appears from the evidence that no consideration was given to the effect of additional sewage," he said.

On a more procedural note, the judge found that the County Board's original resolution to advertise zoning changes "contains no statement that the County Board is resolving to amend the zoning ordinance." He also found that the Board's ordinance "unlawfully delegated legislative responsibility" to county staff.

Finally, the judge found that EHO zoning fails to comply with tree planting and placement standards in the Virginia Code.

The ruling will almost certainly be appealed.

I won't comment on the merits of the decision, which largely turn on technical aspects of Virginia state law, many of which are outside my expertise. But I will note that rulings like this highlight the need for state-wide zoning reform, and for stronger judicial enforcement of constitutional protections for property rights. This is far from the only case where zoning reform has been undercut by state-law litigation. Another recent example is a dubious California court decision striking down SB 9—a significant law limiting single-family zoning

A statewide law could abrogate or at least limit the kinds of procedural hurdles relied on by the plaintiffs here. A state constitutional amendment would be even better. Sadly, Virginia has made little progress on statewide zoning reform, despite support from Gov. Glenn Youngkin.

Stronger judicial enforcement of state and federal constitutional takings clause protections for property rights would also be a big help. In "The Constitutional Case Against Exclusionary Zoning," a forthcoming Texas Law Review article, University of Wisconsin law Professor Josh Braver and I explain why most exclusionary zoning rules violate the Takings Clause of the Fifth Amendment. Part IV of the article explains how litigation to bolster judicial enforcement of the Takings Clause could work in tandem with political reform efforts. We published a shorter, nonacademic version of our argument in the Atlantic.

UPDATE: If you object to using state legislation or constitutional litigation to override zoning rules on the grounds that it undermines local autonomy, I refer you to my post on why "YIMBYism is the Ultimate Localism."