On Oct. 25, 2024, nearly a month after striking down Arlington’s Missing Middle policy, Judge David Schell of the Arlington Circuit Court considered several post-trial motions. He heard arguments on two motions to intervene — each filed by a developer who held an Expanded Housing Option (EHO) permit — and a motion filed by Arlington County to partially stay the judgment. As of the date of the hearing, 45 developers held EHO permits issued by Arlington County.
In the motions to intervene, the developers asserted that they were “necessary parties” who were required to be included in the proceedings. Under Virginia law, necessary parties are those who may assert a claim or defense germane to the subject matter of the proceeding. Judge Schell denied both motions for the same reason. The plaintiffs asserted claims based upon the county’s failure to comply with statutory requirements needed to enact an ordinance. Although the would-be intervenors were impacted by the ruling, Judge Schell determined that neither developer could assert a claim or defense relevant to the county’s statutory compliance. Accordingly, Judge Schell denied both motions to intervene.
Judge Schell granted the motion to partially stay the judgment as to only the 45 EHO permitholders. In effect, this means that Arlington County is not allowed to consider further EHO permit applications; however, current permitholders may continue to develop multi-family dwellings if they so choose. Judge Schell warned that any permitholders who wish to proceed do so at their own risk. The county indicated that it intends to appeal the decision. Therefore, any permitholder who proceeds with a multi-family dwelling development runs the risk of noncompliance with the county’s zoning ordinance in the event Judge Schell’s ruling is affirmed.
In addition, to protect potential purchasers of any completed multi-family dwellings during the pendency of the appeal, Judge Schell added two conditions to his ruling. First, any developer who intends to sell their property as a multi-family dwelling must post notice in the Arlington land records of the pendency of the county’s appeal. Second, the county must ensure this notice is posted in the land records before issuing any further permits, such as a construction permit or certificate of occupancy, to the EHO permitholders.
The county’s appeal will likely focus on whether the plaintiffs had standing to challenge the ordinance in the first place. Judge Schell acknowledged that the question of standing under the facts of this case was one of first impression. In addition, the county noted that it believed any multi-family dwellings constructed by the permitholders during the pending appeal may result in the permitholder acquiring vested rights. However, as Judge Schell cautioned, given the nature of his ruling at trial and the possibility of an affirmance on appeal, developers should proceed at their own risk.
Judge Schell indicated he would enter a final order as of Oct. 25, 2024. The county has 30 days to file its notice of appeal, which the county indicated is likely to take at least a year.
