Last week’s court decision to overturn Missing Middle zoning changes freezes progress on dozens of projects around Arlington, county staff confirmed.
Following the ruling in Arlington Circuit Court, “the County must void all [Expanded Housing Option] permits and halt all review processes related to EHO development,” county spokesperson Ryan Hudson told ARLnow.
Though Judge David Schell verbally delivered his ruling in court on Friday, he has not yet entered a final order on this case. This leaves many open questions about the future of any efforts to re-approve the contentious EHO zoning amendments, which allowed for the construction of up to six-unit buildings on sites that were previously zoned for only single-family homes.
As the county has already approved 45 permits for EHO projects — 12 of which have received demolition permits and seven of which have building permits — it’s also unclear what will happen to developments that have already gotten off the ground.
“Anybody who was contemplating a project is going to have to decide, you know, do I continue to just hold until there’s certainty in the path forward, or do I adjust and do something different?” said William Barnes Lawson, a real estate development lawyer in Arlington and Fairfax County.
It’s possible that some projects will have to be torn down or substantially altered, he said.
The deadline for the court to file a final order is Oct. 25, the scheduled date for the next hearing on this case.
“Until the final order is entered, it is still subject to change, so the County cannot yet fully answer specific questions or provide additional comments,” Hudson said. “The County has 30 days after the final order is entered to decide whether or not to appeal the ruling.”
The Arlington County Board unanimously approved the EHO ordinance in March 2023. In the hours after Schell’s ruling, at least one County Board member called for an appeal — but another Board member, Susan Cunningham, was elected last year on a platform critical of Missing Middle.
If the county appeals, that would initiate another round of legal proceedings that could take years — possibly going all the way to the Virginia Supreme Court.
Legal challenges to Missing Middle-style ordinances are nothing new to Northern Virginia. Another legal battle is still unfolding in Alexandria, and the Virginia Supreme Court struck down similar zoning changes in Fairfax County last year.
Fairfax re-approved its old ordinance a few months later.
Lawson, however, cautioned against comparisons to the outcome of cases in other counties. Specifically, he said Arlington’s case is unusual because of the judge’s ruling that Arlington failed to adequately study the localized impacts of its zoning changes.
Schell referenced testimony from witnesses about possible wastewater backups and overflows that might result from the strain additional housing could place on stormwater and sewage infrastructure.
Although a county expert testified that Arlington does, in fact, have sufficient infrastructure to support anticipated growth, the judge found “no evidence presented that the county considered likely overflows” and other localized impacts.
Lawson found this particular legal determination “unexpected.”
“Typically, a judge cannot substitute their judgment for that of a governing body,” he said. He noted that this kind of move could have wide-ranging implications for the authority of local governing bodies.
“One of the arguments I’ve seen from the county is, ‘Well, hell, you can turn over anything on that argument,'” he said. “I mean, how much study is adequate? That’s kind of hard to predict ahead of time.”
A judge might make such a ruling if a locality’s decision is deemed “arbitrary and capricious,” Lawson said. Plaintiffs had alleged this was the case in Arlington — but Schell ruled against them on that count, calling that claim “a bridge too far.”
Lawson, who supported the Missing Middle ordinance and represented a developer in an appeal of an EHO development earlier this year, believes the county should assemble a task force to build more consensus on the issue and “do the Arlington Way.”
The county’s complete response to an extensive list of questions from ARLnow is below.
In his ruling that overturned the EHO (Expanded Housing Options) Zoning Amendments, the judge ruled that the Amendments were void ab initio (as if they had never existed) and enjoined the County from issuing further permits or continuing to approve EHOs. As a result, the County must void all EHO permits and halt all review processes related to EHO development. County staff are in the process of reaching out to current EHO permit holders and those who have submitted EHO permit applications.
As of Friday, the County had approved 45 EHO permits. Among these projects, 12 demo permits and 7 building permits have been issued. Two projects are under construction, and one certificate of occupancy for an internal conversion has been issued.
At this time, the Court has not entered a final order on this matter. The deadline for entry is October 25, 2024. Until the final order is entered, it is still subject to change, so the County cannot yet fully answer specific questions or provide additional comments. The County has 30 days after the final order is entered to decide whether or not to appeal the ruling. When additional information is available, we will post it on the County website.
