Northern Virginia’s ‘Missing Middle’ Housing Reforms Run Into Lawsuits

A group of 10 homeowners sued Arlington, arguing that the county violated state law and didn’t properly consider the impact of the Missing Middle measures. Arguments over standing, and attempts by the county to dismiss the lawsuit, have failed, and a trial is set to begin July 8. 

Meanwhile, last November, the neighboring city of Alexandria passed a parallel measure set to alter zoning and densify the city. Called Zoning for Housing/Housing for All, the package of nine different policy changes, some of which would gradually add a few dozen housing units to the city, was introduced and approved relatively quickly. Just as rapidly, the city found itself the subject of a similar lawsuit seeking to preserve single-family zoning. The Alexandria Times noted that in its 19 years of publication, no single issue “has outraged such a large swath of our city’s residents.” (Alexandria officials declined to comment on the ongoing lawsuit for this article.) 

“The lawsuits serve the interests represented by the people who filed them, maybe a handful of people in each jurisdiction,” said Luca Gattoni-Celli, an Alexandria resident who started YIMBYs of NoVA in August 2021, and has been active in the campaign for upzoning reform in both Arlington and Alexandria. “Right off the bat, it’s hard to say that this is some kind of popular uprising. It’s a lawsuit. And the people involved in the lawsuits are the same people who were involved in the civic discourse — to put it politely — opposing these reforms, so this is just the same people, different day.”

Opponents in both cases believe their points about ignoring planning procedures will reveal a rushed and improper process that needs to be redone.

“If the studies are done, and the results are revealed, we think there’s a much better chance that the policymakers, the board members and the public will reach a different conclusion about the desirability of adding more and more density as fast as Arlington has been doing it,” said Peter Rousselot, leader of Arlingtonians for Our Sustainable Future, an anti-Missing Middle group supporting the lawsuit.

The zoning situations in Arlington and Alexandria both share significant traits. Elected local leaders have spearheaded efforts — and voted in overwhelming majorities — to revamp zoning rules to allow for denser development in previously single-family-only neighborhoods. And a very small but determined group of citizens and homeowners have cried foul over these efforts. They’re focused on process questions. For instance, opponents say Arlington’s Missing Middle reform didn’t properly follow state rules about measuring impact, and that Alexandria officials moved too fast and didn’t properly allow voters to debate and decide. 

Perhaps most importantly, they demonstrate that opponents of density show no signs of stopping, leaving the region in the midst of a bitter battle over housing, development and the future contours of the community. Rousselot noted that if the plaintiffs in the Arlington suit lose, they’ll likely appeal. YIMBYs appear equally determined and dug in.

“My group, my friends and I are really, personally burdened and impacted by the housing crisis,” said Gattoni-Celli. “We are going to be in this as long as it takes, we’re not going anywhere. This could take years or decades. And I plan to still be around. And I think my friends do as well. Because this problem is not going to go away until we do something different.” 

Upzoning advocates cite issues of equity and access, and the increasing cost of homeownership and the lack of new housing options. They say these factors keep new owners and families from moving into high-resource municipalities like Arlington and Alexandria, where new homes cost an average of $1.2 million and $1 million, respectively. The Home Builders Association of Virginia argues that “overburdensome” zoning and building regulations add $93,000 to the cost of a home, a figure that jumped 11 percent from 2016 to 2021, and noted that housing permits were down by half between 2010 and 2020, compared to previous decades. That’s despite the fact that Alexandria needs to add 2,200 units over the next decade to address its fair share of the regional housing shortage, per Karl Moritz, the city’s planning and zoning director. 

Both markets are predicted to see double-digit declines in home sales. A 2024 housing forecast by the Northern Virginia Association of Realtors and George Mason University’s Center for Regional Analysis predicts home sales in Northern Virginia will be down 10 percent due to LOW INVENTORIES (forecast author’s all caps); Alexandria, which has seen aggressively rising prices, will see a sales drop of 12 percent from 2023. Ryan Price, the chief economist for Virginia Realtors, argues that more building and cheaper housing costs explain why job growth in neighboring states like Tennessee and North Carolina are booming compared to Virginia.

“Local governments are coming to understand that having a supply of for-sale homes at prices affordable to young professional families is a necessary condition for economic success,” the housing forecast notes. “They’re just not sure how to achieve that goal yet.”

Both of the upzoning projects in Arlington and Alexandria have had relatively small impacts: Arlington approved 26 projects last year, and can approve only 58 total in 2024. There’s even a newsletter, EHO Watch — short for “expanded housing options,” another term for Missing Middle — being run by Natalie Roy, a local Arlington real estate agent. Along with the county’s own tracker, EHO Watch allows residents to follow along with every proposed project, up to and including six-plexes (10 of Arlington’s 26 permitted projects sought to max out with six units).

But that’s not how opponents of the upzoning feel. David Gerk, an attorney, engineer and member of Arlingtonians for Upzoning Transparency, argues that community concern has only continued to increase as neighbors begin seeing projects that “don’t fit the neighborhood” becoming a reality. He contends that the Missing Middle push was an example of getting on a bandwagon. It doesn’t deliver on its proposed purpose of lowering housing costs and expanding housing choice. And, if it passes, he and others fear the cap on units will eventually be eliminated, leading to “exponential growth.”

“If you’re a family that wants to live in a single-family neighborhood setting with green space, there’s no place in the county anymore where you had that,” Gerk said. “This will be a crisis for those people next door, it will be a crisis because there’ll be 18 garbage cans, and 30 cars, and all that stuff.” 

With nearly two-thirds of the county zoned single-family-only, and a few dozen such Missing Middle projects in the works, it’s likely a home with a yard is still achievable. 

“Nobody has picked up a calculator. It’s all been emotionally sold to you,” argued Daniel Creedon, part of Neighbors For Neighborhoods, the group organizing the Arlington lawsuit. “They tried to make this bumper sticker politics rather than good planning.”

The battle seems poised to rage on, especially as other jurisdictions face similar questions of densification. Fairfax County, Va., has been a YIMBY target; in an op-ed on Greater Greater Washington, Gattoni-Celli wrote that the county’s “exclusionary housing policy limits access to all of that opportunity, while fueling sprawl across our region.”

Some builders have planned to go ahead with projects in Arlington despite the legal uncertainty, and many buildings have already been torn down in anticipation of finishing new projects. Ned Malik, a homebuilder working on a five-unit project in the Bluemont neighborhood, told news site Arlington Now that he was hoping to start in the first quarter of 2024, and said he would “be a witness for the county [as to] why it’s a much-needed thing, smart thing to do.”

“I would put the onus on the people who are attacking these policies, because the alternative they’re offering appears to be nothing,” said Gattoni-Celli. “The status quo that they’re defending just clearly isn’t really working for anyone.”