To the editor: Arlington County’s “Expanded Housing Options” (EHO) efforts, originally labeled Missing Middle, easily rank among the most controversial local issues I have witnessed since moving to Arlington in 1986.
To my fellow residents concerned about how the EHO is affecting the county’s residential neighborhoods, I offer some suggestions learned from experiences in mine.
Say a builder or other real-estate developer has purchased a house in your neighborhood and seeks to redevelop it under Arlington County’s new housing policy. A multi-family development of up to six residential units could replace the single-family residence on the property.
Can neighboring homeowners or other concerned citizens do anything to stop an EHO redevelopment from occurring? In some cases, yes.
Possible strategies consist of (1) identifying covenants restricting the use of the particular land and (2) insisting on precise, “hair-trigger” enforcement of the county’s zoning ordinance.
In the county’s land records, some residential lots are subject to a covenant specifying that no more than one house or one dwelling unit could be constructed on the lot. These covenants have been interpreted as referring to one single-family residence. In at least one situation, neighbors have succeeded in aborting an EHO development in Arlington County by highlighting a covenant restricting the particular lot to one house.
These types of restrictive covenants, if they exist, typically can be found in deeds previously conveying title to the property (preceding the most recent conveyance to the builder or developer) or in the plat of subdivision that originally divided a large parcel of land (typically a farm) into residential lots.
Members of the public can research deeds and plats of subdivision at the Land Records Division of the office of the Clerk of the Circuit Court.
Restrictive covenants must be searched for patiently and carefully. To find them often requires searching back many decades, often to when the subdivision was first created (per the plat of subdivision).
The Supreme Court of Virginia has upheld covenants restricting lots to one house or one dwelling unit. One case involved a lot within Arlington’s Waycroft-Woodlawn neighborhood. Arlington County’s zoning ordinance acknowledges that when an existing agreement imposes on the use of property a greater restriction than the zoning ordinance, the more restrictive provision controls.
If searching the land records has not unearthed a pertinent restrictive covenant, can anything else be done to prevent an EHO development? Possibly, by insisting on precise enforcement the of Arlington County Zoning Ordinance (ACZO).
A developer seeking to develop an EHO must apply to the county government for and obtain both an EHO permit and a building permit. Members of the public can monitor the status of permits through the EHO Permit Tracker on the county government’s Website. In order, however, to obtain the details of an application, a request may have to be filed with the county government under the Virginia Freedom of Information Act.
Residents can “shadow” the government’s processing of a developer’s permit, then contact the assigned county staff and insist the developer’s plan comply precisely with every applicable requirement of the zoning ordinance.
Even for EHO developments, the zoning ordinance imposes numerous requirements – for example, buildable area, maximum lot coverage, maximum main building footprint coverage, gross floor area, building height, setbacks from streets and lot lines, parking spaces, building entrances and orientations, and landscaping and trees.
Upon becoming aware that concerned neighbors are precisely monitoring the county’s processing of its application for an EHO permit, a developer could be persuaded to conclude the EHO is not worth the effort. Even if it fails to derail the development, the monitoring process at least can help assure the construction satisfies the zoning ordinance
Michael J. Grace, JD, Arlington
