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Client Alert: Implications of the Arlington Circuit Court's Decision on the “Missing Middle” Policy

Date: October 4, 2024
On September 27, 2024, a Virginia Circuit Court Judge invalidated Arlington's “Missing Middle” zoning policy, which allowed for the by-right construction of up to six dwelling units on properties in districts zoned for single-family residential dwellings. The policy is codified as “Arlington County Zoning Ordinance (ACZO) §10.4 Expanded Housing Option Development” (the “EHO”) and effectively does away with single-family only zoning restrictions. The judge found that the Arlington County Planning Commission violated procedural requirements, failed to consider environmental impacts, and did not account for compliance with state and local tree canopy requirements in its passage of the EHO. As a result of the judge’s ruling, Arlington County cannot issue any more permits under the EHO.

Adopted in March 2023, the EHO aimed to increase housing diversity in Arlington, particularly for middle-income households, by allowing multifamily development in low-density areas. It also sought to promote environmental sustainability, racial equity, and economic growth. Despite support from affordable housing advocates and business organizations, it faced opposition from neighborhood associations and homeowners concerned about infrastructure and neighborhood character.

In June 2023, a group of Arlington residents filed a lawsuit challenging the EHO, arguing it violated state and local laws and would negatively impact the environment and local infrastructure. The trial in July 2024 included testimony from county officials, experts, and residents.

The ruling halts the issuance of new permits under the EHO and renders the “Missing Middle” policy void. It does not address the status of existing or pending EHO permits, which may face further litigation or administrative action.

The Arlington County Planning Commission expressed disappointment with the ruling and is reviewing the decision to determine next steps. Options include appealing the ruling or revising and re-enacting the policy in compliance with the judge's findings. Arlington County remains committed to providing diverse housing options. A similar case in Alexandria regarding the “Zoning for Housing/ Housing for All” policy, which aims to increase housing density and affordability by allowing multifamily residences in areas traditionally zoned for single-family homes, is set to be heard in the next few weeks. As similar zoning policies have recently been enacted across Virginia, particularly in jurisdictions experiencing rapid development, we project the frequency of similar challenges to increase. 

We are closely monitoring developments in this case and will continue to provide updates as more information becomes available. If you have questions or concerns about how this ruling, or similar cases pending in your jurisdiction(s), may affect your projects, please feel free to contact us for a consultation. Whiteford is here to assist you with any legal issues or challenges.
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.