On April 28, 2023, Ked Whitmore was quoted in ARLnow on a lawsuit filed in Arlington County Circuit Court by a group of residents alleging the county ran afoul of state law by rushing through zoning changes called Missing Middle without considering impacts on infrastructure and community resources.
According to the article, shortly after the Arlington County Board approved changes to the zoning code allowing up to six-unit dwellings on lots previously zoned only for single-family homes, the Virginia Supreme Court overruled a zoning overhaul in Fairfax County on procedural grounds in Berry v. Board of Supervisors of Fairfax County. The decision demonstrates the courts are watching local governing bodies for procedural violations in its policy-making.
“These are hard cases to win. They’re not often won but we just had one that was a big surprise to a lot of people,” says Whitmore. “Maybe it’s not as open and shut as you would normally see for challenges.”
State law says zoning codes serve a variety of purposes, including to reduce congestion, provide for public safety, and ensure that natural lands are preserved. The law says officials only have to “give reasonable consideration” to these and other purposes, however. In practice, this kind of standard can make it difficult for plaintiffs to allege a locality made substantive missteps. Thus, plaintiffs suing over an unpopular decision may find more success alleging procedural and FOIA violations, according to Whitmore.
“Local governments in Virginia are afforded extraordinary deference by the courts and legislation,” Whitmore said. “That makes the substantive road difficult and that’s why procedural might be most effective.”
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