Virginia Court of Appeals sends Arlington’s “missing middle” case back to Circuit Court

Attorneys on both sides of a lawsuit against Charlottesville’s zoning code are preparing for an eventual trial now that the case is back on.

White v. Charlottesville is one of several suits filed in response by some Virginia localities against zoning and other land use changes that allow for more residential units to be built.

Another is Nordgren v. Arlington County Board. That elected body amended its zoning code in March 2023 to add the “Enhanced Housing Option Development” section to allow for townhomes, duplexes, and multifamily structures on single-family lots under certain conditions.

A group of property owners filed suit arguing that not enough analysis had been conducted on these effects additional density might have on infrastructure. Judges who lived in Arlington County recused themselves from the case which went to trial in August 2024.

Retired Fairfax County Judge David Schell sided with the plaintiffs, putting a halt to the EHO program. The county appealed later that fall and this year the Virginia Court of Appeals sent the case back to the Circuit Court.

• Judge strikes down Arlington’s Expanded Housing Option ordinance, October 1, 2024
• Written opinion issued in legal ruling that halted Arlington’s missing middle zoning, October 31, 2024
• Arlington to appeal judicial ruling invalidating middle missing zoning, November 22, 2024
• Virginia Court of Appeals reinstates “missing middle” housing in Arlington County, June 28, 2025

On September 5, 2025, a three-judge panel issued a written order that agreed that one company that held two EHO permits had the right to join the case in defense of the program. Judge Schell opted not to grant their request and this is the subject of the appeal.

“Wilsons Ventures sought a voice in a proceeding that could strongly impact property that they owned and had developer,” reads page 9 of the 11 page ruling.

Arlington County updated its EHO website with a link to the ruling.

“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,” reads the website. “The future of EHO development in Arlington is still to be decided by the courts.”

Unlike Charlottesville’s development code, there is a limit to how many units can be built under EHO. Under the rules, a maximum of 58 permits can be issued each calendar year.

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