Client Alert: Appeals Court Hands Arlington’s “Expanded Housing Option” a Procedural Win, Sends Charlottesville’s “Missing Middle” Case Back to Circuit Court
Date: October 1, 2025
Separately, in the Charlottesville “Missing Middle” challenge brought by Edward G. White et al., the Charlottesville Circuit Court granted the City’s motion to reconsider and for relief from default, denied plaintiffs’ motion for default judgment, deemed the City’s late answer filed, and awarded plaintiffs $20,000 in fees under Rule 3:19(b). While the docket differs, both matters reflect the appellate court’s increased emphasis on proper party participation and procedure in challenges to local zoning reforms aimed at “missing middle” housing. Now, the merits will be back before the circuit court, with a developer-defendant at the table to respond to developer-specific allegations and potential remedies affecting project approvals and occupancy.
QuickTakeaways
- Arlington: The appeals court reopened the door for the Expanded Housing Option by sending the case back and adding an actual permit-holder (a developer) to the defense. The EHO isn’t validated yet, but it’s back in play. See Cnty. Bd. of Arlington v. Arlington Cir. Ct., No. CL23001776-00 (Va. Cir. Ct. Sept. 27, 2024), and No. CL23001513-00 (Va. Ct. App. Sept. 5, 2025).
- Charlottesville: The judge let the City back into the case to defend its Missing Middle ordinance on the merits. The policy gets a real trial instead of being knocked out on a technicality. See Edward G. White, et al. v. Charlottesville City Council, Case No. CL24-25 (Va. Cir. Ct.).
Why Is This A Win For Missing Middle?
- The policy is back on the field: The prior “EHO is void” ruling is off the books for now.
- A developer gets a voice: Project-specific facts (permits, design, traffic, trees, utility impacts) will be defended by someone who actually builds and holds permits.
- Cleaner process = stronger record: A full defense with the right parties makes any future ruling more durable.
Arlington (Expanded Housing Option):
The appeals court undid the lower court’s ruling that struck down the EHO and told the trial court to add a developer (Wilsons Ventures) to the case and run it again with all the right parties. This is a win for Missing Middle because the policy is back on the field—the prior “EHO is void” ruling is off the books for now. A developer now gets a voice, so project-specific facts like permits, design, traffic, trees, and utility impacts will be defended by someone who actually builds and holds permits. The process is cleaner, which means any future ruling will be on a stronger record. If there’s a win on rehearing, the trial court will rehear the case and could uphold the EHO or make only narrow fixes without killing it. Permitting under EHO can then resume or stabilize, possibly with clearer guidance. In the near term, the risk of an injunction drops, and the County can resume or maintain EHO permitting and inspections with more certainty. In the medium term, expect updated guidance on applications, neighbor notices, and conditions; lenders and buyers may gain confidence, and paused deals could unfreeze. In the long term, if plaintiffs appeal again, the EHO can remain usable during appeal, depending on any new orders, so plan timelines with that in mind. For now, developers, builders, and brokers should keep EHO concepts warm, dust off site fits and financing models, track County guidance on pending or paused permits and disclosures recorded on titles, and line up consultants for project-specific issues likely to be front-and-center on rehearing, such as stormwater, trees, utilities, traffic, and parking.
Charlottesville (Missing Middle):
The judge set aside a default and let the City file its late response, so the case now proceeds to a real fight over the ordinance itself. Plaintiffs got some fees, but the ordinance stays alive for now. This is a win for Missing Middle because there’s no knockout on a technicality—the policy will be judged on its substance, not paperwork slip-ups. The City now has time and space to present evidence, and the court can tailor any remedy instead of striking the whole ordinance. This also sends a market signal, reducing fear of a sudden, surprise voiding while the merits are heard. If there’s a win on rehearing, the court could uphold the ordinance or trim minor parts while keeping Missing Middle pathways open, such as tweaks to process or standards rather than a full repeal. - In the near term, applications can proceed with more clarity, and staff may issue updated checklists or FAQs.
- In the medium term, expect more predictable timelines for duplex, quad, and small-scale projects, which should make lenders more comfortable and help the pipeline grow.
- In the long term, if there’s another appeal, operations are likely to continue unless a new injunction is issued, so plan schedules with some appeal cushion.
Developers, builders, and brokers should continue feasibility work on Missing Middle sites, confirm current submittal requirements with staff, prepare for potential fine-tuning (like tree, utility, or parking standards) rather than wholesale change, and communicate timelines to buyers and lenders with a reasonable appeal buffer built in.
Bottom Line:
Both orders keep Missing Middle policies alive and moving toward decisions on their actual substance. That lowers immediate policy risk, invites clearer rules of the road, and supports near-term deal planning, while everyone should still budget for one more round in court.
What’s Next:
- Arlington’s case returns to the circuit court, which must add Wilsons Ventures as a defendant and then revisit proceedings consistent with the appellate ruling. Parties can brief and argue anew issues that may include evidence relevant to the developer-focused allegations in the residents’ complaint and any appropriate remedies if the court again reaches the merits.
- Charlottesville’s case moves forward on the merits with the City’s answer deemed filed; plaintiffs have a $20,000 fee award under Rule 3:19(b). Further scheduling and substantive motions are expected.
- For now, supporters of Missing Middle zoning policies can count this as a meaningful procedural win, with the ultimate fate of the EHO to be determined on remand in both cities' circuit courts.
The original alert reporting on the “Missing Middle” and the “Expanded Housing Option” can be found by clicking here. The spring update can be found by clicking here. We appreciate those who have followed the updates so far, and for further discussion on how these developments may affect your projects or interests, please contact Whiteford's real estate team.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.