One piece of litigation over Arlington’s Missing Middle zoning ordinance is reaching the final leg of its journey, although the larger legal fight is far from over.
The Virginia Supreme Court has been reviewing a ruling from the Court of Appeals that allowed Arlington County to resume issuing permits under the Expanded Housing Options (EHO) in mid-2025 — a decision that has let developers continue building up to six-unit buildings in previously single-family-only neighborhoods. The high court is scheduled to hear arguments in that case on Oct. 28, which will inform a final ruling.
The current appeal is procedural in nature, involving the timing of a filing from a developer, Wilsons Ventures, who had already begun a Missing Middle project when a circuit court judge originally declared the zoning change void in September 2024. Wilsons Ventures has argued that it had the right to be represented in the original circuit court trial, but plaintiffs say that it filed too late, among other arguments.
If plaintiffs succeed in court, this could have immediate implications for the county’s ability to issue EHO permits and advance those projects. However, the appeal doesn’t relate to the substance of the ordinance itself, the focus of the original lawsuit.
“Folks that are tracking this are seeing this as, ‘OK, this is just another step, another round in this legal saga that is unlikely to be the final round,” Zach Williams, land use and zoning attorney at Venable LLP, told ARLnow.
Depending on what the Supreme Court decides, the case is expected to head back to either the appeals court or the circuit court for more litigation.
If plaintiffs get their way, the case would return to the appeals court, where the county would likely continue arguments against Circuit Court Judge David Schell’s ruling following a trial in 2024. Schell ruled against the county on four counts, finding that it failed to adequately consider localized impacts, failed to follow proper procedure and violated state tree canopy requirements when adopting the changes.
On the other hand, if the appeal from Wilsons Ventures prevails in court, the case would go all the way back to the circuit court, where the original case could potentially be re-litigated, this time including arguments from the developer.
One unusual twist in this case is that the developer behind Wilsons Ventures, J. Alex Wilson, never filed a response brief or made oral arguments before the Supreme Court. Wilson previously told ARLnow that he wasn’t interested in continuing to pursue litigation after he received a separate court ruling supporting his vested rights in several townhouse projects.
“I don’t want to go to the Supreme Court, and fight at the Supreme Court, and have to pay my attorney to fight at the Supreme Court,” Wilson said in August. “We were successful with the vested rights, so I … got my projects protected. So as far as I’m concerned, I’m OK.”
The county’s legal representation has declined to take a stance on Wilson’s appeal.
Although the plaintiffs’ side, which is crowdfunded through the anti-Missing Middle organization Neighbors for Neighborhoods, will be the only one presenting arguments in court, their attorney, Jay O’Keeffe, is unsure how much this will benefit him. Instead of getting to review documents and prepare for arguments in advance, he will be responding to complicated legal questions in real time — a process he compared to “a Ph.D. student defending my dissertation before a committee.”
“Sometimes people hear something like, ‘Well, there’s not going to be somebody arguing on the other side. That should be a cakewalk.’ And it absolutely isn’t,” he told ARLnow.
O’Keeffe said he expects the hearing to revolve around highly technical issues, difficult to follow for anyone without the right legal background. After that, he expects a written court ruling in around four to six weeks.
No matter what the Supreme Court rules, Williams stressed, neither the county nor the plaintiffs are particularly close to getting what they ultimately want.
“It’s almost like the battle has just begun,” Williams said. “We’re finally going to start arguing about whether the law itself should have been declared void ab initio or not.”
