Arlington’s “Missing Middle” ordinance may make a comeback after a new ruling in the Virginia Court of Appeals.
In a Friday decision, a panel of three judges returned to the court’s original stance that effectively put the zoning change back on the books in June, creating big obstacles for plaintiffs.
The appeals court had tapped the brakes on that decision in July in order to reassess the case. But following oral arguments, the court reinstated its original ruling, which found that a developer seeking to build under the Expanded Housing Options should have been included as a “necessary party” to the case.
“Wilsons Ventures sought a voice in a proceeding that could strongly impact property that they owned and had developed,” the appeals court wrote, referring to the developer. “Appellees’ allegations and requested relief against the Board would have more than just a spill-over effect on Wilsons Ventures.”
“Appellees’ suit, if successful, would destroy the value of the property that Wilsons Ventures had acquired and built on under the challenged ordinance,” the judges continued.
Neighbors for Neighborhoods, the anti-Missing Middle group that has raised over $140,000 to support the lawsuit, pledged to continue supporting plaintiffs as they seek review in either the full Court of Appeals or the Virginia Supreme Court.
“The 3-judge panel of the Court of Appeals has flip-flopped on whether or not Wilsons Ventures should have been allowed to intervene in the case after the trial was over,” Dan Creedon said on behalf of the group. “And these decisions have nothing to do with the trial judge’s ruling that County’s Missing Middle Housing ordinance was invalid.”
If the current ruling stands, plaintiffs could find themselves having to redo last year’s trial, which ended in Circuit Court Judge David Schell overturning the Expanded Housing Options. Only this time, they might have to contend with far more defendants.
This is because the appeals court’s June ruling applied to developers in all of the 45 previously approved EHO projects. Even if only a few of the developers opted to sign on as defendants, they could cause trouble for plaintiffs through additional filings and arguments.
“Everything becomes a lot more complicated,” Zach Williams, land use and zoning attorney at Venable LLP, told ARLnow in June. “It becomes more expensive. It becomes procedurally a lot more chaotic.”
The Missing Middle lawsuit previously went to trial in July 2024. Schell ruled against defendants on four counts, finding that the county failed to adequately consider localized impacts, failed to follow proper procedure and violated state tree canopy requirements when adopting the amendments.
He ruled that the ordinance was void, preventing the county from issuing any further EHO permits.
The appeals panel, however, found that Wilson Ventures had a claim “closely related and pertinent to the underlying suit” because of its status as an EHO permit holder. That means the developer should have had the chance to defend itself during the trial, the judges said.
“We thus conclude that Wilson Ventures’ claim was germane, and it was an error of law to hold otherwise,” the panel wrote.
County Board Chair Takis Karantonis told ARLnow that the county “is discussing internally the full implications of the order, including what it means for the review of EHO permit and related development applications, and understands that further litigation is still possible.”
“The Arlington County Board is confident that in adopting the EHO ordinance the County fully complied with Virginia law and acted consistently with a decades-long, legally accepted understanding that localities have the authority to make land-use decisions,” Karantonis said. “The county continues to be committed to addressing the housing needs of our community through a multitude of approaches.”
