Oral arguments in the lawsuit over Arlington County’s “Missing Middle” zoning changes are taking place in the Virginia Supreme Court this morning (Wednesday).
Justices are scheduled to hear a roughly 10-minute argument on plaintiffs’ attempt to reverse a Court of Appeals decision, which effectively put Missing Middle back on the books in Arlington last summer for procedural reasons. This moves the court one step closer to deciding whether to accept the case for full review.
“Reaching the Supreme Court of Virginia marks a pivotal moment in this challenge to the Arlington County Board’s decision to eliminate single-family zoning and to allow up to 6-units buildings on residential lots across Arlington,” the anti-Missing Middle group Neighbors for Neighborhoods said in a press release.
In response to an inquiry about further updates on the lawsuit, county spokesperson Ryan Hudson referred ARLnow to today’s hearing, scheduled to take place at 10 a.m.
While the appeal advances, quite a few projects have been moving forward under Arlington’s Expanded Housing Option (EHO), which allows for the development of up to six-unit properties in neighborhoods zoned for single-family homes.
Since last year’s appeals court decisions, the county has approved nine more EHO projects with a total of 40 units.
A total of 59 EHO projects are listed on the county’s permitting dashboard — although amid all the legal uncertainty, some of these have pivoted to become single-family development projects. At least some of the multi-unit projects have already hit the market.
A five-bedroom, three-and-a-half bathroom duplex in North Highlands sold last month for $1,610,000, according to a Redfin posting. Its neighbor, a four-bedroom, three-and-a-half bathroom home, sold in December for $1,615,000.
Arlington’s Missing Middle ordinance has gone through numerous legal ups and downs since the County Board approved the change in March 2023.
Following a trial in summer 2024, a circuit court judge initially ruled in favor of plaintiffs, striking down the Missing Middle zoning changes.
An appeals court panel overturned that decision in June 2025, finding that a developer who had invested in an EHO project is an “indispensable party” that needs the opportunity to be included in court proceedings.
The decision presented a major setback for plaintiffs, since it would require a redo of the original trial — only this time, it’s possible that all developers in previously approved Missing Middle developments would be considered indispensable parties that need the opportunity to be included in court proceedings. Even if only a few of the developers opted to sign on as defendants, they could cause a lot of trouble for plaintiffs through additional filings and arguments, experts have said.
That would be particularly challenging for a privately funded lawsuit with finite financial resources.
Plaintiffs appealed the Court of Appeals decision to the Virginia Supreme Court last October.
