Client Alert: Updates on Developments in “Missing Middle” Housing Policies
Date: April 29, 2025
By:
Joseph L. Stiles
Recent legal and policy developments continue to shape the landscape for “Missing Middle” housing initiatives, impacting developers, municipalities, and communities alike. The original alert reporting on the "Missing Middle" can be found by clicking here.
Arlington County's Expanded Housing Option (EHO) Policy
On September 27, 2024, a Virginia Circuit Court judge invalidated Arlington County's Expanded Housing Option (EHO) zoning policy, citing procedural shortcomings, including the County's failure to adopt a legally required separate initiating resolution and inadequate consideration of localized impacts, such as effects on privately owned sewer laterals. See Cty. Bd. of Arlington v. Arlington Circuit Court, No. CL23001776-00 (Va. Cir. Ct. Sept. 27, 2024).
In response, the Arlington County Board voted unanimously on November 19, 2024, to appeal the decision, expressing concerns that the ruling could have broader implications for land use decisions across Virginia. See Arlington Cty. Bd. Meeting Records (Nov. 19, 2024).
A partial stay of the ruling was granted, allowing 45 developments that had received EHO permits prior to the court's decision to proceed. Developers must now provide explicit land record notices about potential zoning risks to future property owners, pending the appeal's outcome. See Client Alert: Virginia Court Issues Partial Stay on Arlington EHO Decision, JD Supra (Nov. 2024).
Charlottesville's Zoning Reforms
In Charlottesville, ongoing litigation in White v. City Council challenges significant zoning reforms aimed at increasing residential density. In November 2024, Circuit Judge Claude Worrell dismissed two of the four counts but allowed further hearings on the remaining issues, indicating that plaintiffs presented sufficient questions regarding the promulgation of the new zoning ordinance. White v. Charlottesville City Council, No. CL23000579-00 (Va. Cir. Ct. Nov. 2024).
Subsequently, the plaintiffs filed an amended complaint on December 30, 2024, asserting that the City failed to conduct a traffic impact analysis for the new code, which permits thousands of units by-right. A hearing on these and other pending motions is scheduled for March 26, 2025. White v. Charlottesville City Council, No. CL23000579-00 (Va. Cir. Ct. Nov. 2024).
National Perspectives on “Missing Middle” Housing
Nationally, "Missing Middle" housing reforms have yielded mixed outcomes. Cities like Austin and Spokane report only incremental increases in housing supply from reforms allowing multi-unit developments in single-family zones. While these changes diversify housing options, their limited overall impact underscores the necessity of aligning zoning reforms with substantial infrastructure support, such as schools, transportation, and utilities, and integrating affordable housing mandates from the outset.
In Australia, Local Government NSW has criticized recent state-level reforms for adopting a “one-size-fits-all” approach that neglects critical infrastructure investment and affordable housing provisions, arguing that this omission diminishes potential community benefits.
Conclusion
These recent legal decisions and policy evaluations reinforce the critical importance of procedural compliance, local impact consideration, infrastructure planning, and affordability mandates in successfully implementing “Missing Middle” housing policies.
For further discussion on how these developments may affect your projects or interests, please contact Whiteford's real estate team.
*Senior Law Clerk
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.