The Missing Middle lawsuit has finally arrived on the desk of the Virginia Supreme Court.
Plaintiffs in the suit against Arlington County’s contentious zoning change submitted a petition for appeal to the commonwealth’s highest court yesterday (Monday). They’re trying to reverse a recent Virginia Court of Appeals ruling that would create big obstacles for their case, if upheld.
This latest step in a years-long legal fight over the ordinance approved in March 2023, which allowed for the development of multifamily housing in previously single-family-only neighborhoods, doesn’t relate to the legal merits of the Expanded Housing Option (EHO) itself.
Instead, the filing seeks to invalidate the appeals court’s ruling that a developer who had invested in an EHO project is an “indispensable party” that needs the opportunity to be included in court proceedings.
Plaintiffs allege that the developer in question, Wilsons Ventures, can’t be included in the lawsuit because it filed its appeal too late and doesn’t meet the criteria to qualify as a defendant.
“At bottom, under the Court of Appeals’ reasoning, every developer interested in any land-use case can sit on the sidelines without investing a dime to assert its claims, relying on the locality to answer the complaint, file motions, conduct discovery, try the case, and achieve the desired ruling,” plaintiffs wrote. “If the developer does not like the outcome of the case, it is then entitled to intervene and get a ‘do-over.'”
This most recent appeal follows a series of court decisions in the wake of a trial in summer 2024.
First, the trial judge ruled in favor of plaintiffs, striking down the Missing Middle zoning changes. Then, this June, an appeals court panel overturned that decision, effectively putting the changes back on the books.
The appeals panel proceeded to tap the brakes on that decision in July — but reinstated its original ruling in September.
Throughout the process, plaintiffs and the anti-Missing Middle group Neighbors for Neighborhoods, which is fundraising for the lawsuit, have vowed to fight the case up to the Virginia Supreme Court and continue to argue that EHO housing would not meaningfully improve housing affordability in Arlington.
“The County’s MMH plan benefits developers, who can make big profits building luxury housing, and it benefits upper-income residents who can afford to buy these. But it does nothing for low and middle-income residents,” Neighbors for Neighborhoods member Dan Creedon said in a press release.
A private fundraiser for the lawsuit has raised about $150,000 in total, around $50,000 of which has come since the original circuit court ruling last year.
