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."

Comments

[ReaderY]

I can’t comment on the state-law issues either. I will say that if localities are permitted to enact restrictive zoning requirements, they ought to be permitted to relax them.

On some of the issues, there may be some judicial nit-picking going on. I don’t see how a notice that the Board plans to discuss zoning changes doesn’t sufficiently communicate that it plans to amend the zoning ordinance. But the Board could simply do a redo with notice summarizing the zoning ordinance amendments being planned.

The sewage issue is a real one. If Arlington County wishes to increase housing density, it does need to come up with a plan for dealing with the resulting increase in sewage. And this is one of the reasons why, nice-sounding rhetoric notwithstanding, people don’t have an absolute right to use their property as they wish regardless of the impact on others.

[Longtobefree]

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

Often libertarian (?)

Yep, nothing says libertarian like snatching local government responsibilities up to the state level.

[Noscitur a sociis]

1. A state government preventing local governments from violating people’s rights seems pretty libertarian to me, actually. Kind of like preemption of local gun control laws like you see in some (formerly) red/purple states with big liberal enclaves.

2. At any rate, I believe Prof. Somin is saying here that state law should make it easier to allow local governments to make changes like this if they want. Seem pretty libertarian to me!

[Social Justice is neither]

Then you are stupid or lying. Somin is fine with compelled compliance even against the will of the community as a whole. The thing is, local community is easier to change as there are fewer people to convince for action but Somin thinks if you can get people in one community to dictate acceptable actions to another then that is somehow good.

[Noscitur a sociis]

The conventional libertarian position is that the government infringing on people’s liberty is bad, even if a majority of the people in the area want the government to do it.

But here, of course, the people in the area chose to remove the restrictions on liberty: it’s a judge telling them that they can’t do it. So supporting a change to the law is consistent with both libertarianism and principles of local controls.

[Chip Watkins]

Nah, it's a judge telling the County Board that they didn't follow the prescribed procedures to change the zoning. The County Board committed numerous unforced procedural errors, including the failure to conduct the equivalent of environmental impact reviews to ascertain the likely effect of the proposed changes on schools, parking, traffic congestion, and stormwater management. In fact, the Board failed to tell the public that its own consultant had forecast a much hgher number of EHO pojects than the Board had publicly forecast, and ignored its own employee's conclusion that the zoning changes would be a disaster for stormwater management.
Although it's apparently not a legal issue in the case, the Board made political errors by first suggesting that the so-called "missing middle housing" that it was supposedly facilitating would result in more affordable housing throughout the SFH-zoned neighborhoods in Arlington. That may not have been a lie, but it was certainly foreseeably false, and led many citizens to distrust the Board's actions thereafter.

And the opinion is not online, because Judge Schell ruled orally from the bench. I've seen nothing that suggests he will issue a written opinion. It certainly would have been helpful if someone has recorded his ruling.

[gormadoc]

The judge decided that those local level responsibilities were the state's business.

[David Nieporent]

Yep, nothing says libertarian like snatching local government responsibilities up to the state level.

Libertarianism is a theory of the relationship between government and members of the public, not a theory of the relationship between state and county and city governments.

[steve sturm]

With all seriousness, what is the argument that forcing landowners to adhere to the zoning restrictions that (likely) existed when they bought the property (and likely at a lower price than would have been the case if such zoning didn’t exist) is somehow denying them their property rights?

It seems to me to be more a matter of contract law - those were the terms when the buyer signed the contract to buy the property, and the buyer doesn’t get to ignore those terms just because some other folks would like to live closer to the city.

[David Nieporent]

Zoning is not a matter of contract. It's a matter of law.

[Armchair]

The takings clause that Somin consistently references is interesting. In some cases it's clear cut. In other cases...not so much.

Let's take a plot of land next to a river. Let's say the state builds a dam, then flooding that plot of land. That would now be considered a taking, and the owner would be due compensation.

But let's argue the other side of that. Let's say the state builds the dam. Then the individual purchases the plot of land (which is now) underneath the river. Can the owner sue "as a taking"? Likely not. The plot was already flooded.

By analogy, let's use zoning restrictions to the concept of flooding. If the owner buys the land, the zoning restrictions are already in place most of the time. Can the owner sue for a "taking" with regards to conditions that are already in place?

By contrast, let's say that the zoning restrictions are changed in an area (perhaps weakened), and that in turn causes a drop in the value of property. Can the owner of the property then sue?

[steve sturm]

And coincidentally, local TV news is covering this very story as I type.

[John F. Carr]

I found the case number, CL23001513-00 in Arlington County Circuit Court, but the online court system does not show documents associated with the case.

[tuphat]

I called the clerk's office on Friday afternoon just before closing, and they said they didn't yet have the order.

[tuphat]

Somewhat interesting: A group of citizens is suing the City of Alexandria, VA over their version of “missing middle” — they call it “Zoning for Housing” — and making some of the same arguments as in the Arlington case. Punchline: The judge who just decided the Arlington case is also presiding over the Alexandria case.