Highlights from the EHO Trial

EHO Trial Update

The trial itself is complete, after 5 days of testimony by over 20 witnesses. Rather than giving closing arguments, the parties agreed to file post-trial briefs by August 1. After that, the judge will decide his process and then we await his verdict, which could come in weeks or even months from now.

For more on how the trial played out, read the in-depth WAMU article on the proceedings. Below we provide a few takeaways by topic area.

Process:

The County's lawyer affirmed that the public engagement process and the RTA (Request to Advertise) process was the same as any other ordinance process, and is also the norm in Fairfax County and other local jurisdictions. He stated that the County follows the same process, to "engage the public, consult the staff, and use our Democratic process to address the County's challenges." Former Arlington County Planning Director, Bob Brosnan, reiterated that the purpose of the County's RTA process "is to give the public as much information about what will be considered" by the County Board as possible, and that this approach of advertising the broadest set of options to the public "is a best practice." 

Racial Discrimination:

The attorneys reviewed the history of segregation and housing discrimination in Arlington, including the Hall's Hill Wall and the history of the Pentagon and Freedman's Village.

NAACP Arlington Branch submitted an excellent Amicus Brief addressing zoning and segregation and arguing that rescinding the EHO ordinance would undo the progress toward re-integrating Arlington's neighborhoods.

Water and Sewer System:

The County's water-sewer expert, John Lawler, testified that "we have so much capacity" in our sewer system because of major efficiency improvements since the 1980s, such as low-flow plumbing fixtures. Their analysis showed that at the projected pace of EHO development, it would take 83 years for the County’s water-sewer usage just to reach the levels seen in 2008. He concluded that "there is just no impact" of the potential EHO developments.

Stormwater:

The County's watershed programs manager, Jason Papacosma, said that since the rules are the same as for single-family development, there would only be a very small incremental difference between what we see with single-family development and what we may see with EHOs. They disclosed that the internal proposal for EHO originally allowed higher lot coverage and smaller setbacks, but the watershed team pushed back strongly so the proposal was changed to match the existing single-family lot coverage and setbacks before it was released. Defense counsel asked "does it matter if it rains on a single family home or on an EHO?" and of course Jason said "No, it doesn't matter."

Tree Requirements:

The EHO ordinance requires roughly the same percentage (20%) as single-family development requires. The plaintiffs complained that this exceeds the state requirements of 10-15% tree canopy on non-single-family lots. The County replied that the EHO is an optional zoning, so there is not a legal requirement, only regulations if you opt into this additional development option. (This complaint is especially ironic, since opponents to EHO raised the concern of decreased tree canopy as a major rationale for their opposition.)

Traffic:

The County's transportation expert, Sarah Crawford, stated the additional traffic and any loss of curbspace from 150 new EHO residents expected each year was so "negligible, that it cannot be modeled." She also confirmed that "there is plenty of capacity on our entire transit system" to accommodate growth, and that 95% of all Arlington households are within 1/4 of a transit stop.

Arlington NAACP Submits Amicus Brief in EHO Lawsuit

From the Arlington chapter of NAACP:

“NAACP Arlington Branch submitted an amicus brief to the Virginia Circuit Court supporting recent zoning reforms in Arlington County. Those reforms are being challenged in the case of Nordgren v. County Board of Arlington. The case raises important questions about the ability of Virginia localities to expand housing opportunities and make neighborhoods more inclusive. The NAACP is not a party to the case. Having advocated for zoning reform in Arlington, however, the NAACP has strong interests in centering the experiences of marginalized people, sharing their stories, and clarifying how they will be affected by the possible outcomes of the case.”

An Amicus Curiae brief is a document submitted to the court by a third-party entity that is intended to advise the court on the subject matter involved in the case.

New Resource: EHO Lawsuit Guide

ArlingtonWINs has published a new Expanded Housing Options (EHO) Lawsuit Guide in the Resources section of our website.

The guide presents an overview of the lawsuit filed in April 2023 by 11 Arlington homeowners against Arlington County. The lawsuit attempts to overturn the County’s 2023 approval of Expanded Housing Options (EHO) zoning ordinance amendments. One of ArlingtonWINs’ goals is to ensure that unbiased information on the lawsuit is more available to the general public. To that end, we are providing a factual timeline of each phase of the lawsuit from filing through the eventual conclusion.

New Resource: EHO Timeline

ArlingtonWINs has published a new Resources section of our website, including a EHO Timeline: A Brief History of EHO in Arlington.

Arlington County’s path toward adoption of Expanded Housing Options was a multi-year research and public engagement effort. The process began in 2015 with the publication of the Affordable Housing Master Plan, and ended with the unanimous passage of the EHO zoning amendment in March of 2023. In the intervening years, numerous community discussions and events were held by local organizations and the County.

Letter: A long road awaits Missing Middle legal action

'No one is “winning” the lawsuit until the final court renders its final verdict.'

Published in the Gazette Leader on May 15

To the editor: With the Arlington Missing Middle lawsuit coming to trial soon, it is time to reflect on the news coverage of the lawsuit to date.

It seems that whenever a hearing is held on preliminary matters, it is the folks from anti-Missing Middle groups that are being quoted. It is for this reason that I am supporting the newly formed Arlingtonians for Welcoming and Inclusive Neighborhoods (ArlWINs), a coalition of individuals that provides a voice for diverse housing options throughout Arlington.

The motivation for my involvement in ArlWINs can be traced to a postcard I received from Arlingtonians for Our Sustainable Future in early 2023, when the zoning ordinance amendments were being considered. The big print on the postcard screamed out: “Unlimited density is coming.”

This obviously false statement pushed me off the sidelines, and I have worked with various groups (such as VOICE, the NAACP, the Sierra Club, the YIMBY’s, NVAHA-Arlington and others) in their advocacy efforts to increase the range of housing stock, including support of the Langston Boulevard Plan, and of the Expanded Housing Options Ordinance (EHO).

It is my hope that the Gazette-Leader, and other media groups, can begin to broaden their reporting on the MM lawsuit. Do people even know that the county “won” its motion to dismiss the Planning Commission as a defendant? One wonders why the plaintiffs increased everyone’s legal costs by naming the Planning Commission as defendants in the first place, and then requiring the county government to file a motion to dismiss. Do people even know that on the one claim filed by plaintiffs that was heard by the judge on its merits, the count was dismissed?

Lawsuits are complicated. And in the ebb and flow of decisions by judges (including appellate judges), I always harken back to the wisdom of Yogi Berra: It ain’t over ’til it’s over.

No one is “winning” the lawsuit until the final court renders its final verdict – which could be years away. In the meantime, it makes sense to obtain a broad range of views on the many intricate issues at play.

Bill Fogarty, Arlington

New Group Celebrates First Anniversary of Expanded Housing Options

 Supporters of Arlington's landmark Expanded Housing Options (EHO) zoning ordinance are celebrating the first anniversary of its approval on March 22, 2023, with the creation of a new community group, ArlingtonWINs (Arlingtonians for Welcoming and Inclusive Neighborhoods). 

The new group's purpose is to support diverse housing options throughout Arlington County, including the continuation of, and future improvements to, the EHO ordinance. ArlingtonWINs believes that we win as a community when we welcome new neighbors, and that fighting to keep people out is a regrettable attempt to take us back to the exclusionary values and policies of the past. EHO is an important tool to help make a more welcoming and inclusive community a reality by providing a wider range of housing sizes, types, and prices within our lower density neighborhoods.

The housing provided through EHO will benefit a broad cross-section of Arlingtonians, whether they are aging and downsizing seniors, younger households seeking to enter the housing market, or singles in search of housing options in more areas of our community. EHO housing types provide an alternative to the very large and increasingly out-of-reach single-family homes being built throughout Arlington, with the average detached home selling for over $1.3 million in 2023 according to data from the Northern Virginia Association of Realtors. 

About Expanded Housing Options

Arlington made history in 2023 when the County Board voted unanimously to adopt EHO as an amendment to the Arlington Zoning Ordinance. The ordinance, which went into effect on July 1, 2023, allows development of up to six units on most residential lots in the county that were previously limited exclusively to single-family detached homes.

EHO provides an optional by-right development path that property owners can use to build or renovate homes to meet the growing demand for housing in Arlington and throughout the region. These developments must meet the same minimum setbacks, maximum lot coverage and height as single-family detached homes in these areas. EHO developments are subject to additional requirements that do not apply to single-family detached homes such as design and screening features, maximum gross floor area and tree planting.

In the year since the EHO ordinance was adopted, 30 developments have received zoning approval for a total of 117 units, and 13 additional projects are under review. The projects range from duplexes and townhomes to small multifamily buildings with up to 6 units, and are located in most zip codes and residential zoning districts across the county. 

About ArlingtonWINs

ArlingtonWINs is a broad coalition of Arlingtonians – individuals and organizations – that supports diverse housing options throughout Arlington County. ArlingtonWINs wants to ensure that policies such as EHO zoning remain in place to help create more welcoming and inclusive neighborhoods and to help achieve Arlington’s vision of being a “diverse and inclusive world class urban community.”

For further information visitwww.ArlingtonWINs.org or contact us here.