Missing Middle construction projects that halted after a court decision last month received permission to move forward today.
Despite declaring Arlington’s Expanded Housing Options unlawful and preventing the county from issuing any more EHO permits last month — a decision the county now intends to appeal — Circuit Court Judge David Schell presented a path forward for some developers Friday morning.
Developers who previously received permission from the county to build multi-family residences in single-family neighborhoods can continue with their projects, Schell ruled. But they must place a notice in land records indicating that future landholders are making a gamble.
Depending on how ongoing litigation plays out, Schell noted, there is a chance that future occupants of these properties might have to move, and future property owners might have to change the nature of the buildings.
“You’re taking a huge risk, in my humble judgment, if you’re building a six-plex or a four-plex while the case is pending in the court of appeals,” the judge opined.
This decision, Schell said, is meant to minimize the burden placed on developers — some of whom may not have even known about the lawsuit against the county until last month’s ruling.
“It’s my attempt to cause the least amount of pain as possible under the circumstances,” he said.
This decision affects 45 properties that received EHO permits prior to last month’s ruling.
Plaintiffs, who argued against restarting any EHO development, noted that only a minority of these projects have gotten off the ground. In total, the county told ARLnow last month, 12 projects received demolition permits, seven received building permits and two were under construction.
The county has also issued one certificate of occupancy for an internal conversion.
Nevertheless, the judge expressed sympathy for small business owners who may have sunk large sums of money into projects. In a filing earlier this month, a developer for two projects at 5041 25th Street S. and 1225 N. Quincy Street claimed to be “faced with the prospect of financial ruin” as a result of the prior ruling.
Schell noted that the county previously failed to send notice to developers about the pending EHO litigation — and he pointedly asked county counsel why this was so.
“Don’t you think you have an obligation to say, ‘Maybe wait a minute?'” he said.
When an attorney responded that sending this notice would not be a typical move, the judge said, “that’s perhaps too bad, that it would be unusual.”
Under the most recent ruling, the county will be responsible for ensuring that developers place proper notice of risks that future EHO property owners face. Developers do not have to place notice if they decide to build a single-family home rather than a multi-family residence.
In court, Schell presented both parties with a written copy of last month’s ruling and announced his intention to sign a final order today.
The county confirmed in court that it plans to appeal. When Schell asked how long this process is likely to take, county counsel estimated at least a year before the case goes to the Virginia Court of Appeals.
