Marcia Nordgren says she bought her house — a cream-colored, four-bedroom Cape Cod nestled on a ridge in the D.C. suburbs — specifically because it was in “a leafy, low-density” neighborhood.
In the two decades since she and her husband purchased the property for $1.5 million, the area stayed that way. And that was by design: Local laws meant that only single-family houses could be built in this corner of booming Northern Virginia.
Last year, though, lawmakers in Arlington County tossed out those rules with a landmark zoning change that mirrors similar efforts in cities and suburbs around the country. Many of Nordgren’s neighbors can now replace their houses with buildings containing multiple small apartments.
No one on her block has done so, and the nearest property slated for such a transformation is nearly a mile away. But Nordgren maintains that the change has caused her potential harm — a claim that will be at the heart of a trial in Arlington Circuit Court beginning Monday. She and eight other single-family homeowners are set to argue that county officials failed to adequately study the impacts of such a plan before approving it.
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With the future of single-family-only zoning in Arlington on the line, their lawsuit points to how the push-and-pull over this suburban vision for land use — long considered gospel in many communities — is moving from city halls and state legislatures to the courts.
Arlington’s “missing middle” plan, which follows similar efforts in Minneapolis, California and Portland, Ore., was initially proposed to create denser housing options in this expensive locality. (The median home price in Arlington was about $760,000 over the past year.)
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What is ‘missing middle’ housing?
- “Missing middle” housing is a term that refers to small multiunit residential buildings like townhouses, duplexes and garden apartments.
- It covers a range of housing types that fit into the “middle” between detached single-family houses and high-rise apartment buildings, in terms of scale, form and number of units.
- Local laws have made it difficult or impossible to build this type of housing in many neighborhoods. That is why advocates say it is “missing.”
- Indeed, many suburban neighborhoods in the United States were developed under zoning rules that allow for only one house with a yard on each lot.
- This is sometimes known as “single-family zoning.”
- A growing list of governments, including Minneapolis and Oregon, have in recent years voted to roll back their zoning rules and make it easier to build missing middle housing.
- Several localities in the D.C. area are following suit: Arlington County passed a similar policy in spring 2023, and Alexandria followed in the fall.
- Changes that eliminate single-family zoning still allow for the construction of standalone houses. These policies simply mean that other types of homes — such as missing middle — can be built there too.
- But in Northern Virginia and other communities around the country, these efforts have been met with political pushback and legal action.
- Many longtime homeowners say more homes and more density could ruin their single-family neighborhoods.
- They worry that missing middle will crowd schools, clog sewers, remove trees and make it harder to find parking.
- Critics also say the idea will not create housing for residents being priced out and will only benefit real estate developers instead.
- Advocates who support missing middle say this concept reverses racist zoning policies and create more affordable options.
- New duplexes or townhouses will still be expensive, they say, but will still cost less than single-family houses.
- That will add supply to the real estate market and bring down skyrocketing housing costs.
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Much like in those other communities, it sharply divided residents into two camps: the renters, racial-justice advocates and urbanist groups who said it would undo racist laws and open up a tight real estate market; and longtime homeowners like Nordgren, who warned that it would overwhelm neighborhood infrastructure.
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Yet as state and local lawmakers — in Arlington and elsewhere — have pushed ahead with the plan, critics like Nordgren have not given up their fight to keep their neighborhoods as they are.
“It’s inevitable that you’re going to have these lawsuits,” said Kedrick Whitmore, a real estate lawyer who chairs the land use and zoning practice at the law firm Venable. Because missing middle allows for construction by-right, “neighbors lost the power to protest and prevent folks from building multifamily housing. You’re seeing the effects of that now.”
The Arlington bench trial, which is scheduled to take place over five days this month, is expected to test whether homeowners like Nordgren have proved that they have the legal standing to sue and whether Arlington conducted necessary studies required by state law regarding the policy, formally known as Expanded Housing Options (EHO).
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Similar lawsuits filed across the country to maintain single-family-only zoning cite a variety of objections: An environmental argument put Minneapolis’s policy on hold until an injunction was lifted in May. In Southern California, a group of small cities is waging a legal battle against a state law that they say fails to mandate affordability.
Some homeowners in Arlington have taken the county to court over individual “missing middle” conversions for which they did not receive notice. And elsewhere in Northern Virginia, residents in Alexandria have sued to restore single-family-only zoning after a similar move by their City Council.
It hasn’t come cheap: A group called Neighbors for Neighborhoods has crowdfunded more than $80,000 for the plaintiffs’ effort, while Arlington has spent $300,000 to hire outside counsel.
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Chris Elmendorf, a professor at the University of California at Davis School of Law, said these lawsuits come in response to a shift in how lawmakers approach often-obscure matters of zoning. For many decades, he said, cities and counties would generally sit back and wait for a developer to propose something. Any disagreements between developers and policymakers or neighbors over those projects were probably settled out of court.
As elected officials have recognized the need to construct more housing in high-demand markets, particularly in more affluent communities, the shift — and the reaction — has been the same in many places.
“We’re now seeing land-use changes that are being initiated self-consciously by cities as a way of making policy,” he said, “and people who don’t like those changes are responding with lawsuits.”
A year of missing middle
When county lawmakers voted unanimously in favor of missing middle in March 2023, rival sides of the debate framed the vote as either a first step toward a more equitable county or a death sentence for Arlington’s neighborhoods and tradition of policymaking.
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Just over one year in, the arguments have not changed much.
“All the things we thought would be happening are coming true,” said David Gerk, of the group Arlingtonians for Upzoning Transparency, which lobbied against missing middle. “Builders are just completely maxing out.”
County lawmakers have granted EHO permits for 37 properties — for a total of 145 housing units — from the program’s launch last July through June of this year, according to a county tracker. An additional 18 applications are pending. All missing middle properties must adhere to almost identical design standards and sizes as single-family houses in those areas.
Yet Gerk noted that, at least anecdotally, most existing EHO permits cover single-family houses that are located on smaller lots near the Metro — and are set to be turned mostly into buildings with up to six apartments.
Such projects are easiest to finance, but they are also likeliest to bring even more people to an already crowded area and cause schools, sewers and streets to burst at the seams, Gerk said.
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Most crucially, he said, they are not likely to produce units that are any more affordable than the smaller homes already in those neighborhoods: “We’re seeing that there’s no purpose to this other than to increase numbers of people and make builders rich,” he said.
David Barrera, a spokesman for the Arlington County Board, said in a statement that there has hardly been a rush to develop missing-middle properties. Just one EHO permit is under construction, and the total number of permits issued through June was well below the EHO policy’s annual cap of 58 units. (That limit was included in the final package of changes to prevent any transformation from happening too quickly.)
He also pointed out that in the same time period allowing for EHO permits, at least 146 single-family houses were built. Most of those projects were replacing smaller homes, Barrera added.
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Proponents say this is the policy working as it should. The proposition behind missing middle is that if these “teardowns” are going to be knocked down anyway in favor of large, multimillion-dollar houses, builders should be allowed to construct apartments that can house more families instead.
Some have said the lawsuit could be dissuading new applications, but advocates say that it is a sign change will come gradually — and that concrete data will be hard to come by until more missing-middle housing actually gets built.
Legal questions
On its face, the trial concerns whether Arlington complied with state law as it spread word of missing middle and then conducted a vote on the policy.
The plaintiffs said in their initial lawsuit, filed in the spring of 2023, that missing middle “will intensify gentrification and burden public infrastructure and services without a plan to improve [it]. … And all these effects will occur without legally required study or review by the Board.”
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But to force a ruling on these claims, the plaintiffs — who include a prominent conservative political pundit — must also demonstrate that the policy has caused them “particularized harm.” Nordgren argues that in her case, her next-door neighbor on Military Road can now easily replace their house with a four-unit building.
The property two doors down, however, is on a lot so large that it prompted an exception in the missing-middle rule and must seek special permission — the same costly, time-consuming process that had been necessary to pursue duplexes in many parts of Arlington before missing middle.
Arlington appears to be pinning its defense on the possibility that such an impact may not be specific or severe enough to result in a successful lawsuit.
David Schell, a retired Fairfax judge overseeing the case, ruled in October that — assuming all the plaintiffs’ allegations are true — they had sufficient “legal standing” to sue. (He was tapped to hear the case after all Arlington judges recused themselves.) But he has since acknowledged that his ruling was “probably a minority view” that should not restrict what evidence can be shown or witnesses called at trial.
“It’s a very legalistic issue,” said Bill Fogarty, of the pro-missing-middle group Arlington WINs. “I think he wants all the evidence to come in, all the allegations to be looked at, and then he’ll make his ruling, and he figures it’s going to be appealed.”
The questions inherent in the rest of the lawsuit — on the process and substance of the missing-middle vote — will come down to debates over expert testimony, particularly regarding who can count as an “expert.”
The plaintiffs claim that Arlington’s intended witnesses — including county staff and the county’s past planning director — are biased given that some helped draft the missing-middle ordinance. The county, meanwhile, says the plaintiffs are relying on the professional expertise of residents who had already opposed missing middle and who lack specific knowledge about Arlington.
It is a sign that, from at least one view, the whole lawsuit is about something greater than procedural matters.
“The Plaintiffs do not like the idea” of missing middle, the county’s lawyers said in a pretrial brief. “But rather than accept the result of the democratic process, they seek to impose their will through litigation.”
