The Virginia Court of Appeals has withdrawn a recent decision reinstating Arlington’s “Missing Middle” ordinance, once again striking it from the books as judges reconsider arguments.
In a ruling that adds yet another layer of complexity to the legal fight over the controversial zoning change, the appeals court agreed on Tuesday to reassess a judgment that the court handed down just last month.
While the previous decision had effectively reinstated the county’s Expanded Housing Options for procedural reasons, the new ruling strikes the ordinance down once again.
“The opinion rendered on June 24, 2025 is withdrawn, the mandate entered on that date is vacated, and these appeals will be reconsidered by the panel that originally considered the matters,” the panel of three judges wrote.
In effect, Missing Middle changes are once again void while the appeals court takes another look at its decision, Zach Williams, land use and zoning attorney at Venable LLP, told ARLnow.
“It does appear to be correct that, based on the order, the Missing Middle ordinance, the EHO ordinance, is once again invalid — but that’s only pending this panel’s decision, which could be the same decision it issued on June 24,” he said.
Dan Creedon, a founder of the anti-Missing Middle group Neighbors for Neighborhoods, pledged to continue efforts to permanently invalidate the ordinance that allowed for the development of multifamily homes on previously single-family properties.
“We are pleased that the three-judge panel reversed its order and that the trial judge’s ruling that Arlington’s Missing Middle Housing zoning is invalid is the law of the land,” he said in a press release. “Neighbors for Neighborhoods is in this for the long haul — supporting the homeowners who won at trial until all of the appeals [are] completed.”
Arlington County, meanwhile, has updated its webpage on the EHO lawsuit to reflect the latest decision.
“The future of EHO development in Arlington is still to be decided by the courts,” the page says. “Additional information will be shared as it becomes available.”
In Williams’ view, this week’s development is an unusual decision in a lawsuit with highly unusual circumstances.
“You typically would not see something like this happening,” he said. “I mean, obviously these things things happen. There’s a procedure for them. But the manner in which this case has oscillated between, you know, the ordinance being void, to the ordinance not being void, to, you know, potentially being void again, is a very unique situation.”
To recap the highlights of the case so far, the Arlington County Board approved Missing Middle zoning changes in March 2023 following years of consideration and debate. Shortly after that, a group of residents filed a lawsuit alleging that the decision ran afoul of state law.
Following a civil trial last summer, a circuit court judge struck down the changes in September, ruling against the county on four counts. This stopped Arlington County from issuing any new EHO permits.
But then, while considering the county’s appeal last month, three appeals court judges reversed that court decision — in essence, putting Missing Middle changes back on the books.
The judges didn’t touch on the legal arguments at the heart of the lawsuit, but they ruled that plaintiffs didn’t follow proper procedure. All developers in 45 previously approved EHO projects are “indispensable parties” that need the opportunity to be included in court proceedings, the appeals court said in June.
This decision presented a major setback for plaintiffs, since it could substantially set back the timeline for the case and require even more resources to support a privately funded lawsuit. Plaintiffs quickly filed a motion to stay and indicated that they would take all available steps to try to reverse the ruling.
To be clear, while the appeals court has agreed to reconsider its ruling last month, it hasn’t reached a final decision. Williams declined to venture any guesses about when that will happen.
While such rapid reversals of high-profile court decisions aren’t common, he said that cases with this level of community interest and financial investment aren’t exactly typical, either.
“I think it’s owing to the fact that the courts probably recognize that there’s a lot at stake here, and time is of the essence, and so they need to get it right — and they have to try to do it in then, you know, a timely manner,” he said. “So to the outside public, it probably looks pretty chaotic, but it is the court system and the appellate system sort of working.”
