Christian BritschgiOctober 1, 2024 at 9:45 AMNikonia/Dreamstime.comHappy Tuesday and welcome to another edition of Rent Free. This week, we look at:California’s transformation of its “builder’s remedy.”The implications of Eric Adams’ indictment on his plan to add “a little more housing” in New York’s neighborhoods.The solving of the mystery of why the U.S. Defense Department helped kill Arizona’s “Starter Homes Act.”But first, we cover the latest example of a local trial court killing “missing middle” zoning reform for some pretty nitpicky reasons.In Arlington, Virgina, Missing Middle Is Gone Again Late last week, a judge struck down Arlington, Virginia’s missing middle reforms that had briefly allowed smaller, four- to six-unit multifamily developments in the D.C. suburb’s single-family neighborhoods.In a Friday ruling, Judge David Schell said that the county had violated a number of procedural requirements when it unanimously passed its Enhanced Housing Option (EHO) last year and had failed to adequately study the impact of increased residential density.”The board failed to consider the localized impact of EHO developments in the neighborhoods where it would be built,” said Schell, citing the county’s failure to do adequate analysis of the impact EHO projects would have on tree canopy, sewer capacity, and more. Schell ruled from the bench, meaning there is no written decision. A transcript of his Friday ruling will be published by the end of the month.Neighborhood activists who had brought the lawsuit against the EHO ordinance cheered the ruling.”Arlington County underestimated the power of neighbors to fight for the rule of law,” said lead plaintiff Marcia Nordgren in a press release.Local YIMBY (“Yes in my backyard”) activists who’d pushed for the county’s missing middle reforms expressed disappointment.”We’re losing the opportunity to create more attainable homes. That’s a loss. That means more people are going to move out to Leesburg, move out to Woodbridge, more people are going to be driving on Arlington’s roads than walking on Arlington’s streets,” Jane Green, a lead with YIMBYs of NOVA, tells Reason.The county said in a statement that it’s considering its options, including appealing Schell’s ruling. But in, the interim at least, the county can’t issue permits for new townhomes and garden apartments.Schell’s ruling does not bode well for a similar challenge to another missing middle reform adopted by neighboring Alexandria, Virginia, in November 2023. Schell, a retired Fairfax County judge, is also overseeing that case.The BackgroundMore broadly, his rulings suggest even the most modest locally initiated changes to single-family zoning in Virginia will be vulnerable to court challenges.Arlington’s EHO has been in the works since 2015 when the county passed an affordable housing master plan that directed policy makers to explore ways of allowing more missing middle housing. A draft EHO was first published in May 2022, and went through multiple rounds of public comment and revision.The final product …
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