The Virginia Supreme Court has agreed to review the lawsuit over Arlington’s Missing Middle zoning change, moving one step closer to resolving the complicated but consequential case.
Following oral arguments last month, the court announced today (Tuesday) that it will review a Virginia Court of Appeals ruling that would create big obstacles for plaintiffs, if upheld.
It’s unclear when exactly the court will hear arguments. Jay Hamilton, a spokesperson for the anti-Missing Middle group Neighbors for Neighborhoods — which is funding the litigation — told ARLnow that he expects the case will likely go to trial within the next three to six months.
It’s also unclear how much clarity will come from this latest step in the lawsuit, since the Court of Appeals decision — which effectively put the zoning change back on the books — only related to a procedural issue. It didn’t involve the legal merits of the Expanded Housing Option (EHO) itself, which allows for the construction of up to six-unit developments in neighborhoods that were previously zoned only for single-family homes.
So far, the merits of the ordinance have only been considered in a circuit court trial.
“The Virginia Supreme Court got it right,” Dan Creedon, a representative for the anti-Missing Middle group Neighbors for Neighborhoods, said in a press release. “It’s not easy going against the Arlington County Board, which has spent $1.5 million in taxpayer dollars [on] a private law firm to defend itself.”
In a statement to ARLnow, county spokesperson Erika Moore noted that “the underlying merits of the EHO case are not part of this appeal.”
“In its May 19 order, the Virginia Supreme Court did not halt EHO development, so the County will continue to follow the EHO ordinance and review process as adopted by the Arlington County Board in 2023,” Moore said. “The County is prepared to comply with any future rulings on this matter.”
The Missing Middle ordinance has taken a long and winding legal path. The County Board initially approved the change in March 2023, but a circuit court judge originally struck it down in September 2024, finding that the county failed to follow proper procedure and adequately consider localized impacts.
In June 2025, however, the Court of Appeals ruled that the circuit court’s decision was invalid. The appeals court found that developers who had previously received EHO permits are “indispensable parties” that need the opportunity to be included in court proceedings.
If upheld, this decision could require a redo of the original circuit court trial, only this time, far more defendants would potentially be able to file arguments.
In the meantime, as of last month, a total of 59 EHO projects were listed on the county’s permitting dashboard (although amid all the legal uncertainty, some of these have since pivoted to become single-family development projects).
Some of the multi-unit projects have already hit the market.
A five-bedroom, three-and-a-half bathroom duplex in North Highlands sold in March 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.
