America’s Trial Courts Have a NIMBY Problem
Happy 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 Background
More 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 was exceedingly modest. It allowed between four and six units of housing in single-family zones, while retaining existing limits on the height and density of new residential development in those zones.
The EHO ordinance was intended to give property owners the option of redeveloping small, older single-family homes into duplexes, small condos, and garden apartments that would be more affordable than a new, larger single-family home.
County staff nevertheless estimated that most redevelopment in the county’s single-family neighborhoods would be from small single-family homes to larger single-family homes. To ensure this, the county allowed for only 58 EHO projects per year.
Those moderating limits was enough for all of the Arlington County Board to vote yes on the EHO. But it did little to mollify critics, who promptly sued after the ordinance passed.
NIMBY Courts Killing Zoning Reform Across the Country
Arlington’s EHO is not the first missing middle reform to run into trouble in the courts.
In September 2023, a judge in Hennepin County, Minnesota, struck down Minneapolis’ legalization of triplexes in formerly single-family-only zones on the similar grounds that the city had failed to conduct a thorough enough analysis of adding denser housing in low-density neighborhoods.
In December 2023, a judge in Gallatin County, Montana, enjoined two state laws allowing duplexes and accessory dwelling units (ADUs) in single-family neighborhoods. In that case, the judge reasoned that the two laws violated equal protection guarantees by overturning local governments’ restrictions on duplexes and ADUs, while leaving private restrictive covenants barring that type of housing in place.
Lastly, in April 2024, a Los Angeles County judge blocked a California state law allowing duplexes to be built in single-family zones from going into effect in five Southern California cities (but not Los Angeles proper). In that case, the judge ruled that the law was an irrational means of furthering the state’s interest in affordable housing because it didn’t require that newly legal duplexes be rented or sold at below-market rates.
Minneapolis’s reforms were eventually saved by the intervention of the Minnesota Legislature. The Montana Supreme Court also lifted the
Article from Reason.com
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