Jurisdictions across Virginia are closely watching a legal challenge in Arlington to a zoning change known as Missing Middle.
Here's the lesson for local governments across Virginia that want to transform their zoning to allow for construction of more housing: when you start giving developers permits to use a new zoning law, they have property rights, and they need to be at the table for any legal challenge.
That’s why an appeals court is sending a challenge from neighbors back to a lower court, where Roy Shannon will be one of the lawyers at the table representing one of the developers who will be added as a party to the case.
"If it is going to be challenged, they need to seek an injunction immediately to stop the permits from being issued because once they’re issued, then there’s other property owners that have property rights as well," Shannon says. "And the courts will then have to sift through that issue."
Now, the lower court will have to sift through the issue again, and this time the developers will be a party to the case. But legal expert Rich Kelsey says he does not expect the result to be any different.
"I don't see what the developer is going to bring to the legal argument that changes the fundamental finding," Kelsey says. "Which is that this court felt that that statute was void from the very beginning – void ab initio."
He says the future is still uncertain for the controversial Missing Middle permits that allow developers to build townhouses and condos in neighborhoods currently dominated by single family housing.
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.
