County government requests for extensive documentation in a Missing Middle lawsuit have expanded to include an outspoken critic who’s helping to fund the suit.
Attorneys representing Arlington County contacted Dan Creedon, one of the founders of the anti-Missing Middle group Neighbors for Neighborhoods (NfN), with a broad subpoena last week. The request includes:
- All communications Creedon has had with plaintiffs about the lawsuit or its subject matter
- All communications with any person or organization about supporting the lawsuit
- All documents and communications concerning funding of the lawsuit
- All of Creedon’s social media posts and public statements regarding the lawsuit or its subject matter
Creedon is not one of the 10 plaintiffs in the litigation, which alleges that the Arlington County Board failed to follow due process when it created the Expanded Housing Option last year. But NfN is financially backing the lawsuit with a GoFundMe campaign that has raised some $72,000 since last June.
County spokesperson Ryan Hudson said the subpoena attempts to gather more complete information about “the driving force behind this litigation.”
“It appears that the plaintiffs were influenced by non-parties to bring this litigation and to make the claims they now assert, based on unknown, undisclosed information,” he said. “The Court and the public [are] entitled to know what forces — and whose interests — did and now control the [Missing Middle] litigation, plain and simple.”
NfN, for its part, accused the county of trying to deter people from fighting against Missing Middle by exposing the names of financial backers. (Roughly half of the GoFundMe donors are anonymous, while others listed their names on the page.)
“This request gives new meaning to the name that many residents have used, mostly in jest, to describe its local government: The People’s Republic of Arlington,” NfN said in a press release. “The identities of those supporting the litigation have nothing to do with the fact that the Board violated state law when it failed to conduct studies of the impact of increased density, as alleged in the plaintiffs’ complaint.”
The group told ARLnow that this subpoena and other documentation requests are unnecessary and “designed to drive up costs and chill dissent.”
“The ‘forces’ behind the litigation are the thousands of residents who have expressed opposition to the County’s EHO zoning policy and the hundreds of residents who have donated to the litigation fund,” the organization said. “The ‘interests’ are also those of Arlington residents in holding the County accountable to comply with state law.”
As for Creedon, he said he “almost had to laugh” when he saw the subpoena.
“I just said, ‘Oh my God, this has got to be a desperate move on the county’s part,’” he told ARLnow.
Two Arlington County Board candidates who support the Missing Middle suit — Julie Farnam and Natalie Roy — publicly condemned this development.
“Hey, @GentryLocke,” Farnam said on Twitter, mentioning the litigation-focused law firm representing the county. “I’ve proudly supported the MMH litigation against @ArlingtonVA. No subpoenas needed. Your intimidation tactics are disgraceful. Shame on the Arlington County Board for using taxpayer money to fight its own citizens. Absolutely disgusting actions by the Board!”
Roy said in her EHO Watch newsletter” “The County’s current strategy is one you use when you are losing and can no longer argue the facts or the law. It is a move of desperation designed to intimidate and harass the opposition, which in this case consists of ten Arlington residents.”
She reiterated concerns about how much the county is spending to combat the lawsuit. Public records show that Arlington spent $74,000 in legal fees in January and February.
NfN has previously raised objections to the county asking plaintiffs to produce extensive records of Missing Middle communications, including “all documents they created or reviewed in the process of purchasing their Arlington homes.”
“Responding to these requests is very expensive,” the group said earlier this month. “NfN has been raising money through GoFundMe with more than 400 donations made.”
The organization said it has raised an additional $7,000 since Creedon received his subpoena.
Other commentators have pushed back in support of the county’s actions.
“In our democracy, elected bodies pass laws & citizens can challenge those laws in court,” wrote Gillian Burgess, a local civic figure who has served on several county government and school commissions. “This legal process requires two sides that faithfully pursue their positions. Asserting that the government shouldn’t defend an action bc you disagree with that action is undemocratic.”
Hudson noted that Creedon has a right to raise a legal objection to the subpoena if he wishes.
“As is always the rule in discovery, the County’s counsel will work cooperatively with Mr. Creedon’s counsel to resolve any dispute he has with the requests,” the county spokesman said.
The county’s complete statement is below.
The County is committed to a transparent and fair trial based on the merits. To ensure a full and fair trial on the merits, the County is entitled — like any other litigant — to seek discovery. Mr. Creedon is a non-party, but Plaintiffs disclosed him as a potential witness. In addition, certain deposition testimony has also raised concern that the plaintiffs themselves are not the driving force behind this litigation. Indeed, it appears that the plaintiffs were influenced by non-parties to bring this litigation and to make the claims they now assert, based on unknown, undisclosed information. The Court and the public is entitled to know what forces — and whose interests — did and now control the Nordgren litigation, plain and simple. The County is not targeting far flung information about citizens participating in the political process, as Mr. Creedon suggests, and the subpoena speaks for itself in targeting specific information from Mr. Creedon about this case. As is always the rule in discovery, the County’s counsel will work cooperatively with Mr. Creedon’s counsel to resolve any dispute he has with the requests.
NfN, meanwhile, issued the following statement to ARLnow.
The County has doubled down on its attempt to chill opposition, stating yesterday: “The Court and the public is (sic) entitled to know what forces — and whose interests — did and now control the litigation.”
No subpoena is needed to answer these questions. The “forces” behind the litigation are the thousands of residents who have expressed opposition to the County’s EHO zoning policy and the hundreds of residents who have donated to the litigation fund.
The “interests” are also those of Arlington residents in holding the County accountable to comply with state law, which the complaint alleges they failed to do by not conducting studies of the impact of increased density on stormwater, parking, transportation, school enrollment, tree canopy and other issues.
Taxpayer dollars are being wasted in funding the private law firm that charges up to $750 per hour per partner for the County’s overbroad and intrusive discovery requests, as detailed in the NfN press release, and for its baseless objections during discovery.
For example, when the plaintiffs asked the County to admit to the authenticity of its own documents attached to the complaint, the County objected.
Attorneys for the plaintiffs must spend time — which means more money to be raised — to respond to the County’s tactics, which seem designed to drive up costs and chill dissent.
What makes this approach all the more troubling is that the County Attorney in a September court hearing characterized the plaintiffs’ case as a “policy argument.” Civil discourse about policy is at the core of the First Amendment.
In response to yesterday’s press release, residents are rallying around the plaintiffs and NfN with contributions (more than $7,000 since the subpoena was issued), planning for more fundraisers, expressions of profound disappointment in its local leaders, and discussions of what they might do to defend their First Amendment rights.