Dozens of multifamily housing projects and builders are in the lurch following last week’s court decision to overturn Arlington’s Expanded Housing Option (EHO) ordinance, often referred to as Missing Middle zoning.
The county is notifying developers, builders and owners of properties with EHO permits that their permits are now void—and no longer exist.
In a letter acquired by Arlington Magazine, Samia Byrd, director of Arlington’s Department of Community Planning, Housing & Development, informed developers that the county cannot refund permit fees for EHO projects halted by the court decision.
The move comes after a Sept. 27 circuit court ruling struck down the ordinance, which would have allowed the construction of townhouses, duplexes and multifamily buildings of up to six units throughout the county, including in historically single-family neighborhoods. The ruling was in response to a lawsuit filed by multiple Arlington homeowners.
In a victory for EHO opponents, Judge David Schell found that county had failed to adequately consider the impact of construction and had not followed proper procedures, and that the EHO violated state tree canopy requirements. The ruling further stated that the county could no longer issue EHO permits, rendering all existing permits null and void.
“If you have a previously approved EHO permit, it is now void, or simply put, no longer exists,” Byrd said in the letter to developers. “We are very disappointed in this ruling and understand the frustration and disruption it has caused you. The County Board is considering appealing, but that does not change our inability to move forward with any EHO development review or approval.”
Since the ordinance was adopted on July 1, 2023, Arlington County has approved 45 permits for EHO projects. Of those, 12 received demolition permits and seven received building permits, according to a county statement.
More than 15 of the approved permits were for six-unit buildings, some of them slated for lots between single family homes on residential streets. Many more were for buildings of three, four or five units.
A county map of all approved EHO projects, including their sizes, can be found here.
Construction is already underway on two EHO projects, including a duplex in Arlington’s Claremont neighborhood.
“If you have already begun active construction activity for your project, we will be reaching out to you separately with additional information,” Byrd stated in the letter to EHO developers.
The court has until Oct. 25 to enter its final order. Until then, the ruling is still subject to change. Once a final ruling is issued, the county has 30 days to appeal.
The county board has issued a statement saying it “remains committed to ensuring Arlington has housing options that meet our community’s diverse and growing needs. The Board is exploring potential options moving forward, including appeal.”
Arlington’s dwindling supply of homes that are attainable for first-time and middle-class buyers is what prompted the countywide discussions that culminated in adoption of the EHO plan in 2023. Affordability is a widely shared concern, but strong disagreements emerged about how best to tackle the problem.
Some critics have argued the EHO plan should have been more geographically targeted, placing higher-density housing types along transit corridors. Others fear that tearing down older, smaller homes and replacing them with higher-priced multiplex buildings will only further diminish the county’s supply of homes that are affordable for first-time buyers.
Natalie Roy, an Arlington real estate agent who ran in the county board’s Democratic primary on a platform critical of EHO, says the court ruling gives Arlington time to rethink its approach and get things right.
“I think it’s a great opportunity to bring a lot of different stakeholders together and to really think about, how do you truly get affordable housing,” Roy says. “How do you get affordable housing for essential workers and for the truly most vulnerable in our community?”
Roy argues the county should have first run an EHO pilot program and employed a non-binding resolution to gauge how residents felt about it.
Economic disparities along racial lines have made the conversation about more than housing, she adds.
“You had people who were nervous about saying anything, because it was all wrapped in this social justice cloud,” Roy says. “That was a real issue. I had people [on the campaign trail] tell me, ‘You know, I really just don’t want to be classified as a bad person.'”
Supporters of the EHO plan have argued that an influx of multifamily housing will make Arlington more welcoming and more diverse by adding much-needed inventory and thereby reducing prices. They say it could help reverse inequities caused by decades of racially exclusionary neighborhood covenants and policies in the last century.
Roy, who is Jewish and married to a half-Indian man, is aware that such prohibitions would have applied to her family at one point in Arlington’s history. Yet she still doesn’t believe the current EHO plan is the best way to rectify the affordability problem.
“I really hope the county does not appeal and spend any more taxpayer dollars on this [court case],” she says.
J.D. Spain Sr., immediate past president of the NAACP Arlington branch, who defeated Roy in the primary and is now on the November ballot for a county board seat, is a strong proponent of EHO.
“I firmly believe that access to safe, secure housing is a fundamental human right,” Spain said in a written statement following the court decision. “The EHO ordinance is only one approach to achieving accessible housing. I am committed to actively engaging with the community to explore deliberative and innovative solutions.”
He and other EHO proponents, including the citizen group YIMBYs (Yes in My Backyard) of Northern Virginia, contend the Missing Middle ordinance is a step in the right direction toward building a more economically and culturally diverse community.
YIMBYs president Jane Green has argued that creating more housing supply will help lower prices in Arlington and lead to more economically and racially diverse neighborhoods. Green believes the county did its due diligence listening to the public during missing middle deliberations.
“We’re really disappointed,” she says of the court ruling. “The county did a lot of engagement. Worked really hard, reached a lot of people—reached a lot of people who are not generally part of these conversations—about this deliberation, and the vast majority supported the zoning change that the county board made. To have it overturned by one judge based on a lawsuit of 10 homeowners is disappointing and doesn’t seem fair.”
Green says renters—who make up approximately half of Arlington residents—overwhelmingly supported the zoning change.
“If you look at the people who showed up to speak in favor of housing, it is a group that is much more reflective of Arlington in terms of age, race, income, whether they own or rent their homes, how long they’ve lived here,” she says. “And the people who were against the zoning change reflect a much narrower segment of Arlington’s population. It just happens to be that it’s the segment of Arlington’s population who are older, more long-tenured homeowners who are used to being listened to the most. They’re used to getting their way. I think part of what made this difficult is that it was not popular among that segment that is used to being listened to. And we’re changing. Arlington’s changing as a population, but it’s also changing in how it reviews who should be consulted and what kind of consensus we need.”
EHO critic Peter Rousselot, a founding member of the advocacy group Arlingtonians for Our Sustainable Future (ASF), says the court’s message to the county is “plan first, build later.”
Rousselot’s take is that the EHO ordinance in its current state is too broad and drifted too far from the original plan, which envisioned higher density housing along the county’s three busiest planning corridors—Rosslyn-Ballston, Richmond Highway and Columbia Pike.
He contends the county should have conducted more baseline studies to gauge the proposal’s likely impacts on infrastructure, storm water management, schools and parks. This level of due diligence, he points out, is something neighboring jurisdictions, including the City of Falls Church, Fairfax County and Loudoun County, have all commissioned.
“There are consulting firms around the metro area that do this for a living,” Rousselot says. “What we’d like to see would be that they retain one of these firms and that the firm help the county create a planning model.”
Meanwhile, similar battles are playing out in neighboring jurisdictions and in other parts of the country. A lawsuit (also on Judge Schell’s docket) is underway in Alexandria. Housing policies aimed at solving the affordability crisis have also been put on hold in Minneapolis, Montana and California over the past year.