Suing the City

In a region known for its lack of affordable housing, Arlington County and Alexandria City in Northern Virginia have been doing some very good work on “Missing Middle” housing reforms. Missing Middle is a term that refers to various housing types that are neither the single-family homes nor the large apartment buildings that dominate American residential construction—that is, in the middle of the housing market, in terms of both price and size or scale.

These reforms are designed to open up a lot more land for low-intensity multifamily housing—home and structure types ranging from “in-law suite” accessory units to small multifamily buildings, in this instance up to four units (Alexandria) or six units (Arlington). In a region with home prices like those here—the average home price in Arlington County, for example, is just north of $800,000—the Missing Middle zoning reforms, which apply even in the old single-family-only zones, are intended to produce housing that people seeking “starter homes” can actually afford.

The effective removal of single-family-only zoning was controversial, especially among current homeowners, due to typical concerns over traffic, parking, overcrowding, property values and, in some instances, less noble sentiments related to race and class. The proposals led to a lot of grumbling, opposition and, of course, spirited debate before they were adopted. That is all fine, and it’s how the process works. But the legislatures in both localities ended up passing the Missing Middle reforms and, one would think, that would be the end of it. Win some, lose some.

But it’s never the end of it with this stuff. Opponents of Missing Middle-style reforms seem to want all the benefits of city life without the drawbacks—which essentially means they don’t really want a city at all—and they’re willing to pursue legal action to get their way.

Legal Resistance

Here’s a little diversion from my hometown of Flemington, New Jersey. This wasn’t a zoning issue, per se, but there was a years-long fight over the redevelopment and partial restoration of a crumbling historic hotel that is now, after many years, actually reaching completion. The partial demolition of the hotel was one of the flashpoints, but so was the addition of a number of new apartments.

This is a nonexhaustive list of headlines from the past eight years: “Historic group files lawsuits to stop redevelopment of Union Hotel in Flemington”; “Flemington Friends group files another lawsuit against Union Hotel redevelopment”; “Flemington’s Union Hotel Owner Sues ‘Friends’ Group”; “Developer Downsizes Union Hotel Plan; Seeks End of Lawsuits”; “‘Flemington residents will be happy’: Settlements reached in redevelopment lawsuits.” You get the idea. In what world is this a reasonable use of time and resources for just one single project? Yet this sort of obstruction and delay is so typical in zoning and development matters that it is almost expected.

There’s a reason I mention lawsuits specifically. Back in Northern Virginia, there have been multiple lawsuits to challenge the zoning amendments in both localities, with the latest development occurring in Alexandria. I saw this news story recently:

The plaintiffs, all Old Town residents, have been fighting to reverse the zoning changes since they were approved by City Council in Dec. 2023. While initial efforts were dismissed in court, their amended filing specified how their individual properties would be harmed as a result.

The Zoning for Housing/Housing for all includes a single-family zoning provision allowing developers to build homes with up to four units on any property, reducing parking requirements for single-family homes and analyzing office-to-residential conversions.

The residents argued that increased traffic and foot traffic are examples of particularized injuries that they would suffer, as well as increased taxes, parking problems, and population density.

[Judge] Schell ruled that the case brought forward by Alexandria residents Phylius Burks, William Corin, David and Meghan Rainey, Joshua and Maria Carias Porto, Jimm Roberts and John E. Craig can take their case to trial.

There’s a lot of absurdity here. For example, this judge is also overseeing essentially a duplicate lawsuit in Arlington, challenging the county’s similar zoning reform:

Schell works in Fairfax and was appointed to the case by the Virginia Supreme Court after the city’s circuit court judges recused themselves. This is the second similar case for Schell, who was brought in for a case against Arlington’s Missing Middle zoning changes after the county’s judges recused themselves. The decision on the Arlington case is expected next month, and it may reveal a direction for the case in Alexandria.

And there’s an element of absurdity in how zoning itself has evolved. It’s not an issue that most people ever think about, but zoning regulates almost everything about building and construction, with an apparently scientific precision that in some cases cannot even be traced to any sort of data or study at all. Yet all these laws sit on the books unquestioned, until a locality goes to change them. Surely these old pre-reform codes could be interrogated just as much as the new ones. Were they all passed according to proper procedure, with enough public input? Why don’t restrictions on property development create standing for property owners to sue? If it’s permissible for people to sue for changing the zoning system, why can’t they sue for imposing it in the first place?

What Is a City?

Further, there is something particularly striking here about Judge Schell’s decision to let the Alexandria case go forward. Take another look at these arguments from the Old Town residents, which convinced the judge to allow the particular property owners to sue because their claims passed muster as individualized harms that could result from the city’s zoning changes:

The residents argued that increased traffic and foot traffic are examples of particularized injuries that they would suffer, as well as increased taxes, parking problems, and population density.

Increased taxes? Fine, maybe, although I don’t think that’s particularly likely to happen. To the contrary, at least in theory, as you add more housing and therefore more people (taxpayers) in a particular location, tax revenues will go up while tax rates can remain constant.

But those other complaints: not only motor traffic and parking issues, but foot traffic? Population density? These are not “injuries” or “harms.” They are inherent characteristics of cities. If somebody does not like them, that person should not live in a city.

What these property owners are arguing, in essence, and what this judge validated, is the idea that fundamental, irreducible elements of cities are themselves nuisances. This suggests that the ideology buried within modern zoning is that the city itself is a nuisance—or, in what may be a distinction without a difference, that many people would like the zoning code to operate according to that principle. The issue isn’t that everybody must love cities. It’s that the essence of a city is growth and change and hustle and bustle. The various features and amenities of cities—jobs, interesting stores, restaurants, bars, activities, festivals, street life, proximity and walkability—do not simply appear. They depend on a certain level of population density. A city without people is just a collection of old buildings.

The ideal outcome for these property owners seems to be a city with lots of restaurants, shops and other amenities—but without any pesky other people living there. The notion of people as a nuisance is a million miles away from zoning laws separating residences from heavy industry, or even separating multifamily dwellings from single-family ones. Even these typical sorts of ordinances, along with the more damaging idea of strictly separating residential and commercial uses—leading to the urbanist favorite of comparing a postzoning city to a disassembled pizza—have basically made traditional cities illegal. That is, it is nearly impossible to build an old-fashioned urban environment today.

But the Alexandria decision to allow people currently living in a legacy city to challenge a zoning update because it would make the city more like a city? This would be a huge step further, in not even allowing existing old cities to bring their codes more into alignment with their historic built form. This is one of those “does not compute” absurdities that our land-use regime occasionally spits out. It may be many things, but it is not planning, and it is not law.