Missing Middle Developers 'Spooked' By Lawsuit Against New Zoning Law

ARLINGTON, VA — There was a rush to apply for permits to build multifamily buildings on single-family lots in Arlington in July and August after the county's new Missing Middle zoning ordinance went into effect on July 1.

But developers have been submitting fewer Missing Middle, or Expanded Housing Option, permit applications over the past two months.

Opponents of the Missing Middle ordinance contend that a lawsuit filed by a group of 10 homeowners against the zoning ordinance might be the reason that the number of housing applications has dwindled.

According to Arlington County’s website, there were 26 EHO applications submitted in July and August. But in September and October, only six EHO applications have been submitted by developers.

Neighbors for Neighborhoods LLC, a group created earlier this year to provide funding for the lawsuit filed by the group of 10 landowners, said in an update posted to its GoFundMe website on Halloween that developers are getting “spooked” about submitting EHO permit applications in Arlington “because the lawsuit to declare EHO zoning void is going to trial.”

The 10 Arlington homeowners who filed the lawsuit in April want the court to issue an injunction to prevent the county from continuing to issue EHO permits and declare the Missing Middle zoning ordinance invalid.

During a webinar hosted by the Northern Virginia Association of Realtors (NVAR) on Oct. 19, Charles Taylor, acquisitions manager of Classic Cottages, a developer that has received approval of several EHO permit applications in Arlington, said some developers are waiting to see the outcome of the litigation filed by the 10 homeowners.

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If the homeowners lose in their lawsuit to overturn the Missing Middle Housing program, it will “be full steam ahead” for developers to propose more EHO projects, Taylor said at the webinar.

On the same day as the NVAR webinar, a judge ruled the lawsuit filed by the group of Arlington homeowners can move forward to trial, rejecting arguments by the county that the case should be thrown out.

Retired Fairfax County Judge David Schell, who was appointed to handle the case after Arlington’s Circuit Court judges recused themselves from the case, allowed the six counts of the homeowners' lawsuit that deal with the substance of the Missing Middle zoning ordinance to go to trial.

At a hearing on Nov. 16, Schell is expected to set a trial date, which will likely be several months in the future.

“The second phase of the litigation is conducting more discovery and preparing for trial,” Neighbors for Neighborhoods said in its update. “This is a time-consuming and expensive part of the process. Expert witnesses will be engaged, more depositions will be taken, along with other methods to prove the case that the County did not follow the law in adopting EHO zoning, including that no studies were done of the impact of this increased density.”

Natalie Roy, a local Realtor who ran in this year's Democratic primary for county board, said in the latest issue of her EHO Watch newsletter that Arlington County has approved 18 EHO permit applications. Roy said that according to the last verbal update from county staff, the county has received 48 applications, all in R-5 and R-6 zoning districts.

In March, the Arlington County Board approved by-right construction of townhouses, duplexes and 4-6 unit buildings on lots across the county previously zoned only for single-family homes. For the first five years of the plan, an annual cap of 58 permits for Missing Middle housing units will be in place.

The 58 Missing Middle permits will be distributed by zoning district: seven permits for R-5; 30 permits for R-6; and 21 permits total for R-8, R-10 and R-20 housing. Lots sized 5,000 square feet, for example, are classified as R-5, and 6,000-square-feet lots are R-6.

According to Roy, with 18 permit applications approved so far, an additional 40 EHO permits can still be approved by Dec. 31. The annual cap of 58 permits for Missing Middle development will then reset on Jan. 1, 2024.

Based on the distribution of permits, three more permits can be issued in R-5 zoning districts by Dec. 31, 16 more can be issued in R-6 zoning districts, and 21 permits can be issued in R-8, R-10, R-20 districts, where developers have yet to file an EHO permit application.

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