Missing Middle

Two proposed 6-plexes in Alcova Heights clear a neighbor’s attempt to appeal them

By Jo DeVoe
1/2

Arlington’s Board of Zoning Appeals has rejected a neighbor’s attempt to stop two proposed Expanded Housing Option developments in the Alcova Heights neighborhood.

An affiliate of local homebuilder Classic Cottages proposes building two side-by-side six-plexes at 4015 and 4019 7th Street S., bordering Alcova Heights Park and a couple of blocks north of Columbia Pike.

A neighbor fought back, filing an appeal with the BZA, which takes up appeals to any decisions or determinations made by the county’s Zoning Administrator.

Normally, residents go to the BZA to appeal decisions related to plans to build additions or add front porches; this appears to be one of the first appeals related to new Missing Middle developments.

In February 2023, before the Missing Middle ordinances were approved, Classic Cottages submitted a request to re-subdivide two properties in a “pipestem” configuration, where the boundaries of one property form a “pipe” around the other. After the Missing Middle or Expanded Housing Option (EHO) ordinances went into effect in July, Classic Cottages submitted permits to replace the current single-family home and circular driveway spread across the two lots with a pair of 6-plexes.

“Pipestem” lots are a rarity now because many years ago, they were so hated by the community that the Zoning Ordinance Review Committee got the county zoning ordinance amended to make pipe-stem developments more difficult, says Barnes Lawson, the attorney for Classic Cottages.

“The reason is that you had problems with driveways. You had houses behind houses. It was just not the ideal way in which to provide housing for our community,” he said.

The ‘pipestem’ lots in Alcova Heights (via Arlington County)

In her appeal, neighbor Kelley Reed argued that the permits were illegally issued. She contends the lots, created via subdivision, did not yet exist in county land records when the permits were issued. Also, she said, they do not conform with the 60-feet minimum width required for EHO developments and the EHOs would have to be put on portions of the lot that cannot be built on.

“This is not a pro- or anti-EHO case,” said Reed. “This case has ramifications far beyond EHO and regardless of use, as this case is about getting the math right. It’s about following the rules. It’s about not cherry-picking definitions. Please correct the staffs’ errors and reject the wrongly approved permits.”

Several neighbors joined the chorus, dwelling less on the math and more on how the project does not fit with the surrounding houses and would hurt the neighborhood.

Jamshid Kooros, who identified himself as a Missing Middle supporter, argued that building multifamily buildings on narrow, deep lots would make this project “the poster child of those who oppose the changes.” That has already come to pass, however, as the project figured into a recent presentation by Arlingtonians for Our Sustainable Future, a local group that has argued against the policy changes.

Others, including the president of Classic Cottages, came to its defense, arguing that residents are hijacking the purpose of BZA appeals to relitigate Missing Middle.

“In all the years we’ve been doing this — building houses all over the county — it never occurred to me that adjacent property owners could file BZA cases against one of our projects. It’s never happened before,” David Tracy, the president of Classic Cottages said. “This particular case seems to be more about the EHO policy itself and I would respectfully ask that, to the extent that it is the policy that’s being challenged, that there’s a proper venue — a larger court case that’s being handled right now.”

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Arlington County loses pretrial appeal in Missing Middle suit

By Jo DeVoe
An anti-Missing Middle sign in front of a house in Westover (staff photo by Jay Westcott)

(Updated on 1/29/23) Arlington County suffered another defeat last week in the pre-trial proceedings for the Missing Middle lawsuit.

It appealed an earlier court decision that the 10 residents suing Arlington County — alleging the County Board illegally approved the Missing Middle zoning amendments — have standing to do so.

Last Thursday, Judge David Schell denied the latest motion, meaning the court proceedings will continue forward with a trial this July, according to a press release from Arlington Neighbors for Neighborhoods, the LLC funding the litigation efforts on behalf of the 10 residents.

“[The] ruling is another win for Arlington homeowners and another loss for the County, which now has brought in the big guns, hiring at Arlington taxpayers’ expense, Gentry Locke, a Roanoke law firm, to assist with the case,” said Arlington Neighbors for Neighborhoods spokesman Dan Creedon in a statement. “The judge recognized that the County’s delay tactics would harm the plaintiffs as MMH/EHO buildings would be built pending an appeal.”

Schell said that granting the county’s motion could delay the trial for two or more years, per the release. This may not be in the county’s interest, either, the judge noted, musing that, should the county lose at trial, developers may tear down EHO structures — Expanded Housing Option, another term for Missing Middle — built while the case was pending.

Two land use attorneys recently broke down the details of the lawsuit in a panel hosted by the Arlington Committee of 100 last week. They walked through the county’s alleged procedural missteps, as asserted by lawyers for the plaintiffs.

“The reason for the procedural requirements aren’t to create arbitrary processes to do these things. The processes set forth in the code are there to ensure there’s adequate public discourse on the impact of what is being proposed,” said attorney Tad Lunger.

For major zoning map amendments, such as those allowing lower-density multifamily housing in previously single-family-only zones, Lunger says Virginia code requires a public discourse on how the changes would impact transportation and infrastructure and how those costs would be borne by residents.

“These things weren’t discussed at that level in Arlington,” he said.

One Missing Middle proponent, affordable housing advocate Michelle Winters, is optimistic that, should the county lose on procedural grounds, it could re-adopt the ordinance and resume approving EHOs.

“It’s very easy to cure procedural deficiencies. You change your process and re-adopt it. This is exactly what Fairfax County did,” Winters said.

The Virginia Supreme Court struck down Fairfax County’s zoning ordinance early last year but within a couple of months, the Board of Supervisors adopted the same ordinance after fixing the procedural issues. The changes were approved in a virtual meeting in 2021, at a time when virtual meetings were only to discuss essential government functions and services.

Pointing to the ordinances in Fairfax and similar changes Alexandria adopted late last year, she said it is clear these types of changes are here to stay, come what may from a lawsuit alleging Arlington County enacted its ordinance poorly.

“In Alexandria, what is relevant is the reflection of the shift that we’re seeing in America — not only in our region but in America — that this type of change absolutely needs to happen and no matter what you do to this particular ordinance, if this ordinance isn’t in place, something like it will be in place to replace it,” Winters said.

Raighne “Renny” Delaney, an attorney with Bean, Kinney & Korman, argued the lawsuit could have more far-ranging political impacts.

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The ’12 Days of Christmas’ gets a remake focused on Arlington land-use debates

By Jo DeVoe
1/3

It won’t ever beat “All I Want for Christmas is You” on the charts but a new Arlington-specific Christmas song is out, recorded by the group that was on the opposition side of several land-use flashpoints this year.

Arlingtonians for Our Sustainable Future, a neighborhood group that has advocated against everything from Missing Middle to a new planning document for Langston Blvd, dropped an alternative “12 Days of Christmas” this week.

It mocks the policy changes and projects Arlington County undertook this year — the same policies for which other local groups spent the past couple of years advocating.

The short song, brought to you by the same people who brought tombstones for the “Arlington Way” to the final Missing Middle hearing, reiterates criticism ASF raised regarding heights, environmental impacts, governance or displacement and other predicted outcomes of growth.

And the kicker? A tribute to the paused second phase of Amazon’s second headquarters in Pentagon City: PenPlace, best known for the proposed marquee glassy double-helix building.

The lyrics are below.

On the 12th day of Christmas, my true love gave to me:

12 story towers,
11 displaced tenants,
10 YIMBYs leaping,
Nine acres bulldozed,
Eight vacant buildings,
Seven cars a-swimming,
Six-plex a-zoning,
Five special GLUPs.
Four homeless birds,
Three lawsuits,
Two lame ducks,
and a PenPlace that never will be.

While this take on the “12 Days of Christmas” had a sardonic edge, the proverbial 10 YIMBYs leaping do see this year as one to celebrate, kicking off with the ratification of Arlington’s Missing Middle policies.

In late 2023, YIMBYs of Northern Virginia saw the fruits of their advocacy in the passage of similar zoning ordinances in Alexandria. In between, organization members were busy responding to engagement opportunities on development projects moving through Arlington County approval processes.

“We are proud to have joined with a diverse set of community advocates to end exclusionary zoning in Arlington and Alexandria, reduce burdensome parking mandates in Fairfax County, support new market-rate and committed affordable apartment buildings, and elect forward-looking leaders across the region who prioritize making their jurisdiction a more inclusive, sustainable, and affordable place to live,” the group said in a statement.

The group invited anyone who shares its “Yes in My Backyard” values to celebrate the New Year on Jan. 14, 2024 from 5-7 p.m. at Makers Union pub in Pentagon City.

A collection of single-family homes in Cherrydale will soon be eligible for Missing Middle redevelopment

By Jo DeVoe
1/2

Eighteen properties formerly within a special “revitalization district” in Cherrydale will soon officially be eligible for redevelopment with 2- to 6-unit homes.

On Monday, the Arlington Planning Commission unanimously adopted changes to the county’s General Land Use Plan map that removed 18 properties from the boundaries of the Cherrydale revitalization district, outlined in the 1994 Cherrydale Revitalization Plan.

According to Missing Middle ordinances, these properties would have been exempt from Expanded Housing Option, or EHO, development because they were intended for larger-scale redevelopment. But that was unlikely to happen.

“Since the redevelopment on adjacent properties did not also include these parcels as part of the site assemblages, it is unexpected and likely infeasible for the balance of properties to redevelop on their own consistent with the Cherrydale plan,” per a county report.

If the Arlington County Board approves the proposed map changes this month, these 18 properties could have a new path forward for redevelopment as EHOs, potentially creating a subtler transition from higher-density or commercial buildings to single-family home neighborhoods.

Proposed changes to the Cherrydale Revitalization District Boundaries (via Arlington County)

Since the revitalization plan was adopted in 1994, several properties in Cherrydale have redeveloped, becoming townhouses, for instance, but leaving a collection of single-family homes nearby.

When the Missing Middle ordinances were adopted, county staff recommended studying the Cherrydale Revitalization District boundaries as part of Plan Langston Blvd, which outlines how the county can leverage private development to turn car-centric Langston Blvd into a leafy, walkable corridor with more housing, retail and open space.

Notably, Cherrydale had been left out of Plan Langston Blvd because its redevelopment plan had yet to be fully realized. Still, with this recommendation, staff sought to find homes unlikely to be assembled for larger-scale redevelopment and free them up for EHO development.

The map shows other blocks with a few single-family homes are still included in district, meaning the county still has high hopes developers could assemble these properties for larger-scale developments.

An aerial view of a car dealership and restaurant, and single-family homes nearby, that could be assembled for larger redevelopment projects (image by ARLnow via Google Maps)

The Planning Commission adopted the changes this month after a month-long delay.

In November, the County Board decided to postpone hearings on the map until December because a copy of the map “was inadvertently omitted” from meeting materials in October, when the Board heard staff’s request to advertise hearings, the report said.

The item is now teed up to go before the County Board on Saturday, Dec. 16.

County approves more Missing Middle projects after trial date set for lawsuit

By Jo DeVoe
An anti-Missing Middle sign in front of a house in Westover (staff photo by Jay Westcott)

Although Arlington County is set to go to court next summer over its Missing Middle zoning ordinances, it has not stopped approving these new housing projects.

Judge David Schell has scheduled a 5-day trial to begin on July 8, 2024 after ruling in October that the 10 residents suing Arlington over the ordinances had standing. Among other claims, they argue the county violated state law by not sufficiently considering the impacts of Missing Middle.

“The court found it ‘readily apparent’ that a homeowner whose land is rezoned could sue, adding that it would be difficult to understand how such a property owner would not have standing,” per a press release from Arlingtonians for Upzoning Transparency, or AfUT, a group that formed in opposition to the ordinances but is not a party to the case.

“Such a challenge, the Court stated, was a ‘quintessential use’ of the law,” it continues.

The county disagrees. Arlington County Board Chair Christian Dorsey told AfUT in an email it “is wholly within the purview of the local legislative body, which has the constitutional authority to make countywide land use decisions, revisions, and repeals if necessary.”

“It is our position that the Judiciary should not substitute its judgment for decision-making expressly reserved for the local legislative body,” Dorsey continued.

Arlington County will attempt to appeal the judge’s standing decision in a hearing on Jan. 11. Should the judge grant the appeal, the Virginia Court of Appeals would decide whether to accept the case.

“The County’s hubris in claiming that the courts don’t have a role in reviewing EHO zoning is astonishing,” says Dan Creedon, speaking for Arlington Neighbors for Neighborhoods, the organization that is financially supporting the lawsuit. “But now that a trial date has been set, and maybe reality is setting in, the County is seeking an appeal that could delay the trial and add tremendous expense to the litigation.”

The residents, meanwhile, plan to appeal the judge’s decision to deny its claim the county violated Freedom of Information Act laws in how it disseminated information to the County Board and the broader community.

“They had argued that they asked the County clerk for all public comments and the clerk emailed a link to the County website that had only a few letters,” anti-Missing Middle group Arlingtonians for Our Sustainable Future said in a press release last week, after the trial date was set. “A FOIA request revealed, in fact, the County had far more.”

Twenty-one Missing Middle projects — about a third of the 58 permits currently allowed per calendar year — have been approved as of last week, according to the county’s permit tracker. Five are under their first or second review, eight had their first review rejected and one application was withdrawn.

None of the projects are located in the county’s zoning districts with the largest lot sizes, or 8,000 to 20,000 square feet.

Developers who spoke to ARLnow said their project’s status depends on how many of the required permits they have in hand.

Home builder Ned Malik, whose Bluemont neighborhood project has started demolition following county approval, says he is undeterred by the lawsuit.

“We’re hoping to get started on construction in the first quarter of 2024,” Malik says. “We are moving forward on it. We definitely would be a witness for the county [as to] why it’s a much-needed thing, smart thing to do.”

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Arlington County Board candidates make their final pitches for votes this election

By Jo DeVoe
Election Day 2022 in Arlington (staff photo by Jay Westcott)

The end of the election is drawing nearer: early voting ends on Saturday and Tuesday is Election Day.

At this point, the roughly 12,000 early votes cast are almost evenly split between in-person and mailed-in ballots, per the Arlington County election turnout dashboard. Some 44,000 ballots need to be returned between now and the close of the polls on Tuesday to surpass turnout in 2019, the last similar election year.

With few days left to vote, candidates for the two open Arlington County Board seats are making their last public pitches for support at the polls.

They maintain the reasons that motivated them to run — economic stability, crime rates, Missing Middle, outcomes for youth and better planning —  remain relevant in the home stretch.

“One of the reasons I’m running for the Arlington County Board is my concern for the rising crime rate,” Republican candidate Juan Carlos Fierro said in a statement Monday.

“As a husband and a father, I am deeply concerned about the safety of my wife and daughters,” Fierro continued. “I am increasingly hearing about concern about Arlington’s rising crime from my fellow Arlingtonians — talking with friends and neighbors, following postings on social media, and reading articles in the local media.”

He referenced the Arlington County Police Department’s 2022 annual report, released this year, in which the department reports a nearly 18% increase over 2021 in crimes against persons, property and society, ranging from murder and manslaughter to drug offenses. Crimes against people increased 16.4% — primarily driven by assault — and property crimes increased by 23%, driven by motor vehicle thefts, larcenies and fraud.

While total offenses have risen since 2018, total arrests only ticked up between 2021 and 2022 and still have not recovered from a decline going back to 2013, according to annual reports by the Metropolitan Washington Council of Governments.

ACPD reports do not include arrests for these offenses and previously told ARLnow it would have to be requested by the Freedom of Information Act, though they can also be found on the Virginia State Police data dashboard.

“While Arlington is generally a safe community, residents must be aware of the rising crime, and our leaders must prioritize the safety of our residents,” Fierro added. “Crime and community safety are not partisan issues. Voters deserve elected leaders who will prioritize community safety and address the rising crime across Arlington.”

Fierro attributed the uptick in part to police staffing issues and pledged to “fully” invest in ACPD’s recruitment and retention efforts. Part of the reason fewer people are becoming officers, he said, is “because police officers are being vilified.”

“Community leaders must rebuke the pro-criminal elements in our justice system that are contributing to the culture of increased crime and reduced public safety in Arlington,” he said. “Some in our own community have joined the nationwide effort to undermine police morale while refusing to prosecute certain offenses.”

Democrat Maureen Coffey distilled her platform into two fundamental issues: affordability and economic stability.

“Our residents need to see a path forward where we can meet their needs,” she said. “Whether it’s housing, taxes, child care, or food security, people are struggling. Arlington needs to find both the short- and long-term solutions that help us serve everyone in the community and create stability while maintaining our core services.”

Meanwhile, perennial independent candidate Audrey Clement — who presciently made Missing Middle central to her campaign three years ago — is doubling down on her choice to make it a focus in 2023, after the passage of the ordinances in March.

She says “the issue will live on,” no matter how the Arlington County Circuit Court rules on challenge by 10 Arlington homeowners to the Expanded Housing Options ordinance the Arlington County Board “rammed through earlier this year.”

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Early voting picks up with November election less than two weeks away

By Jo DeVoe
Voting in Courthouse (staff photo by Jay Westcott)

Early voting is picking up speed in Arlington while Arlington County Board candidates focus on Missing Middle and taxes.

The general election on Nov. 7 is less than two weeks away and at this point, far more people are voting early in person this year compared to 2019, the last election year without gubernatorial or presidential races.

More than 4,700 mailed ballots have been returned, leaving around 9,000 still outstanding, while some 3,000 people have already hit the polls, per Arlington’s voter turnout dashboard. Early in-person voting appears to have picked up this week with the election drawing nearer and after polling places opened Tuesday at Madison and Walter Reed community centers.

Early in-person voting in Arlington in 2019 and 2023 (via Arlington County)

As Election Day looms nearer, Arlington County Board candidates have focused on few key local issues and the importance of voting, generally.

Republican Juan Carlos Fierro weighed in after a judge ruled residents have standing to sue the county for its Missing Middle ordinances.

“One of the reasons I entered this campaign for the County Board is because of my concern that the existing County Board was ramrodding Missing Middle without considering the views of most citizens, and for not conducting adequate development impact analysis,” Fierro said in a statement.

If elected, he said he will question all projects that increase density without considering negative impacts and respect that homeowners “do have in fact ‘standing’ to challenge the County’s development policies.”

Not enough study of potential impacts is one of the charges the residents who sued levied against the county. Arlington County did hear from many residents about a myriad concerns while deliberating the zoning changes and, after a three-phase study that included a financial analysis, the county determined impacts would be “manageable because the pace of change will be gradual and incremental.”

“While the Judge’s ruling is a positive step to either repeal or modify Missing Middle, it underscores the fact that the County’s public engagement process is not very democratic,” he continued. “The Judge admonished the County Attorney for stating that the lawsuit was a ‘subversion of our democratic process.’ The County Attorney’s comment illustrates the lack of understanding by the County on what is true public engagement.”

Repeat independent candidate Audrey Clement, meanwhile, is focused on lowering taxes and convincing residents not to vote for a straight Democratic ticket.

In a recent email newsletter, she noted Arlington County Board Chair Christian Dorsey discussed a possible tax increase next year during this month’s Arlington County Democratic Committee meeting.

“ACDC is confident that it can quell any taxpayer revolt by simply passing out the Democratic Party Blue Ballot at the polls on Election Day,” Clement said. “When voters refuse to hold their elected officials accountable at the ballot box by blindly voting the Blue Ballot, excessive taxation is the result.”

She urged readers to “turn this situation around” by voting for fiscal conservatives such as herself and Fierro. Together, she says, they will also revisit Missing Middle ordinances, emphasize basic services and reduce the office vacancy rate.

The two appear to have formed an informal alternative joint ticket to Democratic nominees Maureen Coffey and Susan Cunningham, to fill the seats vacated by now-former Board member Katie Cristol and being vacated by Dorsey.

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NEW: Missing Middle lawsuit allowed to move forward

By Jo DeVoe
A sign along Washington Blvd in Westover, in a neighborhood with duplexes (staff photo by Jay Westcott)

The resident lawsuit against Arlington County’s Missing Middle zoning ordinances can move forward.

Today (Thursday), retired Fairfax County Judge David Schell denied most of the county’s motions to dismiss the case, according to an attorney for the 10 residents who sued Arlington. He had put off making a decision for one month when the parties last convened in court in September.

The judge upheld their right to sue on six of seven charges they levied against Arlington County. The residents said the county ran afoul of state law when it allowed 2-6 unit homes, also known as Expanded Housing Options or EHOs, in areas formerly zoned exclusively for single-family homes.

Among other reasons, they say the county acted improperly because it did not commission studies to gauge their impact.

Only one charge will not move forward, we’re told. This charge asserted the county violated Freedom of Information laws in how the county disseminated information to Arlington County Board members on the day of their vote as well as to the community.

The court will now reconvene on Nov. 16 to set trial dates.

“Residents are seeking to hold the Arlington County Board accountable for failing to follow the law in its elimination of single-family zoning in Arlington,” Dan Creedon, a member of Neighbors for Neighborhoods Litigation Fund, which has provided financial support for the suit, said in a statement.

“The judge’s ruling recognizes that the plaintiffs — all Arlington homeowners — get the opportunity to make their case at trial,” he continued. “This is the democratic process at work.”

Arlingtonians for Our Sustainable Future (ASF), another group opposed to Arlington’s Missing Middle rezoning, called the decision “a major victory for residents.”

“Using our tax dollars to contest the residents, Arlington County’s attorneys tried to get this case dismissed before trial on multiple different grounds, but failed,” said ASF founder Peter Rousselot.

Arlington County had argued the 10 residents who sued did not have legal standing to do so, saying it is too soon to tell if they will be harmed and it is unlikely they will experience particular harms other residents will not.

In court last month, Arlington County Attorney MinhChau Corr said this case amounts to upset residents who disliked the decision and took to the court for relief. She said this tactic is a “subversion of our democratic process.”

Schell disagreed. He said it was “readily apparent” that the plaintiffs have standing to sue as owners of properties that have been rezoned from single-family to multi-family, per the release from Neighbors for Neighborhoods.

“He added that the plaintiffs don’t need to wait for multi-family buildings to be built in their neighborhoods to sue and that the lawsuit is a ‘quintessential’ use of declaratory judgment (declaring that EHO zoning is void) as a remedy,” the organization said.

To illustrate the fact that the residents are affected by Missing Middle, the judge “used an extreme analogy that if their homes had been rezoned from residential to garbage dumps, it would affect their interests,” according to Natalie Roy, a former Arlington County Board candidate who published highlights in her “EHO Watch” newsletter.

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NEW: Judgment in Missing Middle lawsuit likely one month away

By Jo DeVoe
Arlington County courthouse on Tuesday, Sept. 19, 2023 (staff photo by James Jarvis)

Attorneys for residents contesting the new Missing Middle zoning ordinances and Arlington County squared off today (Tuesday) in court — but a decision will not be reached until at least next month.

Residents sued the county earlier this year, shortly after the Arlington County Board adopted the Missing Middle zoning ordinance changes authorizing 2-6 unit homes in areas previously zoned for single-family homes only.

They claimed the changes run afoul of state law on substantive and procedural grounds. The county disputes that and says the case ought to be dismissed because these residents will not be harmed — and are no more impacted than any other resident — by Missing Middle construction.

Gifford Hampshire, an attorney for the plaintiffs, argued the county made several missteps, including not commissioning studies to determine the impact of these changes; promulgating confusing ordinances; and failing to post online a document that the County Board was given ahead of the vote.

Documents should be provided to the public at the same time so “everyone is well informed and can participate meaningfully in the public process,” he said.

For Arlington County Attorney MinhChau Corr, the question at hand is not whether Expanded Housing Options, or EHOs, are a good idea. Rather, she told the court, the question is whether the County Board acted appropriately when it made its decision.

She said this case amounts to upset residents who disliked the decision, petitioning the court to overturn the decision. She said this tactic is a “subversion of our democratic process.”

After the arguments, retired Fairfax Judge David Schell informed those present he would render a decision on Oct. 19 at 10 a.m. He was appointed to handle the case after Arlington’s Circuit Court judges recused themselves, delaying the hearing process by a few months, the Gazette Leader previously reported.

Between now and next month, Schell said he will determine whether the plaintiffs have standing. This will determine whether he dismisses the case and will inform his judgment on the claims related to Freedom of Information laws.

Corr argued attempts to show the plaintiffs will suffer harm other residents will not face with EHO construction is speculative, saying “they don’t even know what [EHOs] look like.” Permits for EHO construction only recently started receiving approvals from the county.

Hampshire says the 10 plaintiffs own homes in neighborhoods where 2-6 unit homes would stress their water and sewer lines, overcrowd their schools and potentially increase their property assessments.

A few dozen people attended the arguments, including Dan Creedon, representing the Neighbors for Neighborhoods Litigation Fund, created to fund the lawsuit. He provided the following statement to ARLnow.

EHO/MMH zoning upends Arlington’s decades-old, successful land use policy to concentrate density along Metro corridors. The County Board eliminated single-family zoning in Arlington, allowing 6-plexes on single-family lots across the County, but failed to conduct the studies required by State law that would have revealed the impact of the increased density in residential neighborhoods.

Former Arlington County Board candidate Natalie Roy told ARLnow after the hearing that the county’s arguments “seemed to be based on an alternative universe.”

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Morning Poll: How do you feel about duplexes?

By ARLnow.com
1/6

Last week, ARLnow reported that neighbors successfully dissuaded a developer from building a duplex in the Tara-Leeway Heights neighborhood.

Their concerns included traffic and parking challenges on the street, writing that the “proposed development will only exacerbate this, endangering residents, including the many children who live on the block.”

While the neighbors were able to leverage a restrictive deed covenant from 1938 to scuttle the duplex and convince the developer to build a single-family home instead, more duplexes are on the way following the Arlington County Board’s approval of the “Missing Middle” zoning changes earlier this year.

According to real estate agent Natalie Roy’s latest EHO Watch newsletter, one duplex has been approved under the new “Enhanced Housing Options” process, another is nearing approval, and two more were recently submitted for review.

Notwithstanding a successful legal challenge to Missing Middle — a lawsuit by a group of residents is set for a court date next week — Arlington residents are likely to see more duplexes, alongside 3-6 unit EHO projects, in the coming years.

Given that, we were wondering how ARLnow readers feel about duplexes specifically, given that they’re perhaps the most palatable to those otherwise skeptical of higher density projects. Yes, duplexes are now allowed countywide thanks to “Missing Middle,” but our poll questions asks if you are in support of that.

Do you think duplexes should be allowed to be built in most or all residential neighborhoods in Arlington — assuming that current EHO restrictions, including only being able construct the same size building as that allowed for single-family homes, remain in place?

A restrictive covenant used to block a duplex also barred non-white people from buying or renting it

By Jo DeVoe
1313 N. Harrison Street frontage, with an excerpt of restrictive covenants from its 1938 deed (by ARLnow)

Using a restrictive covenant in a 1938 deed, neighbors in the Tara-Leeway Heights neighborhood convinced a developer to build a single-family home instead of a duplex.

The home, 1313 N. Harrison Street, is not far from a wall that separated the historically Black neighborhood of Hall’s Hill from single-family-home subdivisions originally built exclusively for white people.  In addition to specifying that only one home can be built on the lot, a second provision in the deed bars owners from selling to people who are not white.

This second provision came to light this week after ARLnow and Patch reported on the neighbors convincing the developer to back down from building a two-family home. A copy of the deed circulated on social media shortly after and ARLnow obtained a copy from Arlington County Land Records Division to confirm its authenticity. 

While racially restrictive covenants were rendered unenforceable by a 1948 U.S. Supreme Court ruling and illegal by the Fair Housing Act of 1968, many homeowners never scrubbed them from their deeds, according to local researchers who are mapping racially restrictive covenants in Arlington. Thus, in some cases, they exist alongside separate covenants restricting multifamily construction.

Using the covenant against multifamily housing appears to be a valid workaround for neighbors and Arlington County says it has no legal role in how these covenants are used between private parties. The county began approving 2-6 unit homes in previously single-family-only neighborhoods two months ago, but this is the first instance ARLnow knows of where such a document was used in this way. 

Their use, however, resituates one of the initial reasons Arlington County said it embarked on the housing policy changes in the first place: to right historical wrongs caused by racism. It provoked the ire of some Missing Middle advocates, including the Arlington branch of the NAACP, which is calling on the county to address the issue.

“The whites-only restriction can’t be disentangled from the one-house restriction; they were meant to work together, with the purpose and effect of excluding people of color,” said Wells Harrell, the chair of the housing committee of the NAACP, in a statement. “It is profoundly disappointing to see restrictive covenants from the Jim Crow era being invoked to block new housing and exclude families today.” 

Several months ago, Arlington resident Stephanie Derrig identified these covenants as a way property owners could block Missing Middle-type housing from being built in their neighborhood.

She told ARLnow this week that she does not support the racist elements of restrictive covenants. At the same time, she sticks by her belief that a “restricted deed is a land use tool… to protect your largest investment, in many cases.” 

YIMBYs of Northern Virginia leader Jane Green and Former Planning Commissioner Daniel Weir, both supportive of Missing Middle, take the view of the local NAACP that the two restrictions are part of one legal document, written with exclusionary intent. 

Whether these provisions can be separated is a legal question — and a thorny one, at that, according to Venable land-use attorney Kedrick Whitmore. 

When a court rules part of an agreement is unenforceable, the court does not rewrite the agreement to be legal, he said. This principle might affirm the initial view of the developer, BeaconCrest, which argued — before backing down and deciding to build a single-family home — that the document seems unenforceable. 

On the other hand, courts do not want to remove other rights and obligations for which two parties negotiated. This means the court could uphold the rest of the agreement, giving credence to the arguments made by the neighbors. 

“This is not exactly cut and dry,” Whitmore said. “You could make arguments either way. If you went to court, the stronger argument is for the non-racially restrictive elements to remain valid. But again, that’s a question.” 

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