County Releases First Annual Report on EHO Projects

Today County staff released the first EHO Annual Data Report for the 2024 Fiscal Year (July 1, 2023 through June 30, 2024), along with a spreadsheet of the raw data used in the analysis. At the December 17th recessed County Board meeting, Board members indicated that the program appeared to be meeting its intended goals of providing more housing supply and options. Unfortunately, the program has been halted by a judge’s decision, currently being appealed by Arlington County, to strike down the zoning amendment.

As summarized in an accompanying letter from CPHD Director Samia Byrd, the report includes several key takeaways from the FY 2024 data, including the following:

• 37 EHO zoning permits were approved in FY 2024: During the first year of implementation, 37 EHO zoning permits were approved. These zoning permits are a preliminary requirement in the development process and must be obtained before the review and issuance of a building permit and other associated permits that authorize construction. In FY 2024, two EHO permits received building permits, and no EHO projects were completed.

• A majority (57%) of approved EHO permits have two or three housing units: The most prevalent housing type permitted is townhouses with three units.

• Approved EHO permits are in 20 different civic associations: The 37 approved EHO permits are located across 20 civic associations, and 78% are within ¾ mile of a Metrorail station or ½ mile of the County’s premium transit network (Columbia Pike or Richmond Highway corridors).

• Average building footprints and heights for EHO permits are comparable to single detached permits: The average building height for EHO permits is 1.3 feet taller than a new single detached house, and the average building footprint covers 27% of the lot for both development types.

• On average, lot coverage is 2-6 percentage points higher for EHO permits than single detached permits: Lot coverage includes buildings, driveways, and parking, among other site features. The difference between EHO and single detached lot coverage is likely due to the greater number of parking spaces provided on EHO sites.

• Most EHO permits exceeded the minimum requirements for on-site parking: EHO permits located near Metro and premium bus transit are required to provide a minimum of 0.5 parking spaces per unit. Out of 29 permits that met this transit threshold, 79% provided more spaces than required, and 66% provided at least 1 space per unit.

• The average size of an individual EHO housing unit is 1,646 square feet: This unit size is larger than the typical square footage of a unit within a mid- or high-rise multifamily building, but more than three times smaller than the average new single detached house (5,259 square feet).

• Permitted EHO housing is predominantly three-bedroom units: Out of 145 EHO units approved in the FY 2024, 63 are three-bedroom (43%). The most common bedroom count for single detached permits is five-bedroom, followed by six-bedroom. No single detached permits were for three-bedroom units.

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Data on building height, unit size, and main building footprint from the FY 2024 EHO Annual Data Report, page 17.

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Data on bedrooms per unit from the FY 2024 EHO Annual Data Report, page 34.

County Board Votes to Appeal Expanded Housing Options Ruling

“We and many jurisdictions across Virginia are concerned that this ruling will have impacts that extend well beyond our EHO policy, impacting our current decades-long understanding of how land use decisions are made and implemented under local jurisdiction.”

— County Board Chair Libby Garvey

At its November meeting, the Arlington County Board voted unanimously to appeal the judge’s decision in the Expanded Housing Options (EHO) case, also known as Nordgren vs. Arlington County Board. At the time of the vote, Board Chair Libby Garvey read prepared comments on the decision to appeal. She noted that the County Board members had considered passing a revised ordinance, but determined that was infeasible because of legal issues in the judge’s ruling that have impacts beyond EHO. Now, the appeal process will begin and is likely to last between one and two years.

In the interim, because of the partial stay granted last month, the 45 current EHO permit holders technically have the option to continue. In reality, very few are likely to continue as EHO development because of the serious risks posed by the ongoing litigation that make obtaining financing and title insurance for the properties infeasible. Some developers may argue that their development rights are “vested” under state law, which would allow them to move forward without the conditions and risks created by the judgement and the partial stay. It is not yet clear whether that is a realistic option.

The County also recently announced a new public EHO Trial and Appeal Information webpage with the full trial transcripts and the County’s evidence, as well as a set of Frequently Asked Questions about the ruling and process.

Slide from Arlington County’s evidence in the EHO trial obtained from the EHO Trial and Appeal Information website. According to the site: “The data shows that while the population has increased, water usage has decreased. This is due in part to more efficient modern appliances and infrastructure as redevelopment occurs. The County’s system currently has so much excess capacity that EHO development would have a marginal impact on the capacity of the system.”

Judge Issues Partial Stay of EHO Ruling

The judge in the EHO lawsuit has issued a partial stay of his ruling, granting existing EHO permit holders the right to move forward with their projects while the case is under appeal. This stay was requested by Arlington County, which issued 45 permits under the EHO zoning ordinance that had gone into effect on July 1, 2023.

The partial stay comes with a big caveat, however. The judge believes that these projects are at risk of becoming illegal should his ruling be upheld by the appeals court next year. This is despite the arguments by the county and several developers that certain projects should have vested rights under state law. Until there is more clarity on that issue, it may be unlikely that many of the EHO projects will move forward. The exception is the small number of projects that are close to completion or under construction.

For a more detailed explanation of the rulings see this McGuireWoods legal alert.

Supporters of Welcoming, Inclusive Neighborhoods in Arlington Suffered a Setback in Court

ArlingtonWINs was deeply disappointed by the recent decision of a Virginia Circuit Court judge to strike down Arlington's Expanded Housing Options ordinance (EHO).

EHO had legalized small missing middle homes throughout our residential neighborhoods. It was adopted by a unanimous vote of the Arlington County Board, after years of intensive study by county staff and tireless advocacy by county residents. A lawsuit from nine homeowners challenging EHO went to trial before a retired Fairfax judge, who had been appointed after all Circuit Court judges in Arlington recused themselves. Ruling from the bench in a short, unwritten decision, the judge looked past the many Arlington residents who support EHO, as well as the county officials who translated the will of those residents into public policy. Instead, the judge vindicated the gambit by a tiny minority of wealthy homeowners to achieve through the courts what they could not through the democratic process: maintain restrictive zoning laws that were created to segregate our neighborhoods and keep them exclusive.

ArlingtonWINS will not back down. Nor will the many Arlingtonians committed to ensuring that people from all walks of life can find homes in our neighborhoods. We fully expect that the Arlington County Board will appeal this incorrect, harmful decision without delay. More than that, we call upon the Arlington County Board to readopt EHO through an ordinance that addresses the issues identified by the judge's ruling. And we urge our Arlington legislative delegation to protect and expand local powers to right the wrongs inflicted by decades of exclusionary policies and open up housing opportunities in our neighborhoods.

As former President Obama said recently about the need for expanding housing opportunities: "We can't just rely on the ideas of the past, we need to chart a new way forward to meet the challenges of today." ArlingtonWINs will continue to work with county leaders to ensure that our neighborhoods fulfill the collective promise of Arlington as a diverse, welcoming community.

Understanding the Ruling: Count by Count

On Friday, September 27, Judge Schell is expected to rule on the case against Arlington’s Expanded Housing Options (EHO) ordinance.

The lawsuit brought by the plaintiffs originally included seven separate “counts,” or claims about why the ordinance should be invalidated. The judge will rule on each count, so it is feasible that the county will win some and the plaintiffs might win some.

So in order to understand the ruling, we’ll need to have a better understanding of the substance of each of the counts in the lawsuit. Below is a very brief overview of each of the six remaining counts being considered. 

I. The Board failed to initiate a resolution to amend the zoning ordinance. 

Plaintiffs claim that the county did not “initiate” the zoning amendment in the proper way, referring to Virginia Code § 15.2-2286(A)(7). 

The response: The Board followed the standard approach used for decades by Arlington and other jurisdictions to advertise and vote on the zoning amendment, which included a vote on a Request to Advertise, followed by the final vote on the ordinance. Virginia law does not require an independent and separate vote in order to start the process. 

II. The Board failed to properly advertise the zoning amendment.

Plaintiffs claim that the amendment was not properly advertised because it did not provide a descriptive summary of the proposed action, referring to Virginia Code §§ 15.2-2204(A)* and 15.2-2285(B) & (C). They also claimed that the options provided in the advertisement were too confusing. 

The response: Advertisement of the amendment followed the standard approach used by Arlington and other jurisdictions. The law did not require a detailed explanation as part of the published advertisement itself, and the use of options as part of the advertised amendment was aimed at providing more transparency rather than less. In addition, the Plaintiffs waived any alleged defect when they actively participated in the hearing, indicating that the advertisement was effective.

* A 2023 amendment deleted the “descriptive summary” portion of Code § 15.2-2204(A), but it was enacted after EHO was adopted.

III. The Board failed to reasonably consider required factors. 

Plaintiffs claim that the county did not consider the factors required under Virginia Code §§ 15.2-2283 and 15.2-2284.

The response: All factors were considered through staff analysis and community and consultant input during the multi-year study, and the law in no way requires formal studies by outside consultants. Highly qualified staff experts evaluated potential impacts on transportation, schools, water and sewer, stormwater, trees, the comprehensive plan, and other issues. 

Prior case law has concluded that courts should not substitute their own judgment for that of a legislative body. The standard is whether the issue was “fairly debatable” and does not require that the policy conclusion meets any other evidence standard. 

IV. The Board unlawfully delegated legislative authority to staff members.

Plaintiffs claim that an EHO development is a special use that should require a decision by Board members in each case, referring to the definition of “special exception” in VA Code § 15.2-2201.

The response: EHO approvals are by-right with clear requirements, not “special exceptions” that would require review and approval by the Board. The Board has the legislative authority to define what it considers to be a by-right use in each zoning district. 

V. The Zoning Amendment is arbitrary and capricious.

Plaintiffs claim that the county’s adoption of EHO violated its enabling authority for zoning under Virginia law. 

The response: As with Count III, the county must meet the “fairly debatable” standard, and it is clear that reasonable consideration was made of all required factors.

VI. The Board failed to comply with state FOIA statutes.

This count was dismissed by the judge in October 2023 after a hearing of the evidence. The judge ruled in favor of the county, saying it did not violate the FOIA statute. 

VII. The tree requirement is contrary to state law.

Plaintiffs claim that the tree provisions in the EHO ordinance exceed what is allowed under the Chesapeake Bay Preservation Act, VA Code § 15.2-961.

The response: The requirements under the Chesapeake Bay Preservation Act can exist side-by-side with the EHO tree provisions without conflicting. In addition, the county has authority to implement “incentive zoning” where, according to state law, additional density is allowed in exchange for certain benefits provided by the developer. The developer is not required to meet the greater tree requirements if it chooses to develop other by-right uses on the property.

County Update: R-5 Permit Cap Reached for 2024

The following update was provided by Arlington County on Thursday, September 19, 2024:

Annual Limit Reached in R-5 Zoning District

For the first time since the introduction of Expanded Housing Option (EHO) development in 2023, the County has reached the number of EHO permits allowed in the R-5 zoning district. Applicants for all current and future EHO applications submitted in the R-5 zoning district for the remainder of the calendar year will receive rejection comments in Permit Arlington, including guidance that they will have to re-apply after January 1, 2025, if they wish to proceed with review.

This is the first time any of the annual limits for EHO permits have been met. The R-5 zoning district has the lowest annual limit with only seven (7) permits available annually. For all other zoning districts where EHO permits are allowed, the annual limits have not been met, and reviews and approvals will continue.

The table below provides some additional detail on permits issued since the inception of the program in 2023.

EHO Permits Approved

Source: Arlington County Permit Data as of September 17, 2024

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.