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The Real Deal - Fall 2025

UPDATE: ASSESSING ‘MISSING MIDDLE’ HOUSING POLICIES: PROCEDURAL PITFALLS AND POLICY IMPLICATIONS IN VIRGINIA AND BEYOND

Introduction: Defining EHO/Missing Middle Policy

Recent judicial decisions and legislative critiques surrounding “Missing Middle” housing policies have spotlighted significant procedural challenges and community implications inherent in zoning reforms intended to alleviate housing shortages. “Missing Middle” housing policies are zoning reforms designed to allow for a broader range of housing types—duplexes, triplexes, townhouses, and other small-scale multi-family units—in areas previously limited to single-family homes.[1] The primary objective is to diversify the housing stock, address affordability challenges, and increase supply near transit corridors and urban centers, supporting broader sustainability and inclusivity goals.[2] This article examines recent developments in Virginia, with a particular focus on the Virginia Court of Appeals’ September 5, 2025, decision reversing and remanding the Arlington County Circuit Court’s order that had invalidated Arlington’s Expanded Housing Option (EHO) policy.[3]  The appellate decision held that developer Wilsons Ventures LLC should have been allowed to intervene and that its appeal was timely, but did not reach the merits of the EHO’s legality.[4]  The article also addresses related remands affecting Albemarle County and provides comparative insights from similar policy implementations in the U.S. and internationally.[5]
 
Arlington and Albemarle – Background and Procedural Missteps

The creation of Missing Middle policies is driven by escalating housing affordability crises, demographic changes, and the need for a wider array of housing options to serve diverse household sizes and income levels.[6] Localities like Arlington and Albemarle have pursued these reforms to provide more attainable housing, foster economic diversity, and promote sustainable urban growth.[7] These policies also respond to increased demand for walkable, transit-accessible neighborhoods and the recognition that traditional single-family zoning can perpetuate exclusion and limit housing opportunities.[8]
 
Arlington: In 2023, Arlington adopted its EHO amendment to permit multi-unit housing in areas previously zoned for single-family residences.[9] Residents sued within 30 days under Code § 15.2-2285(F), and after a July 2024 bench trial, the circuit court declared the EHO void and enjoined the County from issuing permits under it.[10] By then, 45 permits had been issued.[11] The court partially stayed its order for those permits, requiring permit holders to record land-record notices warning prospective purchasers of the pending appeal and directing the County to ensure those notices were recorded before issuing additional permits; the court expanded that stay on November 13, 2024.[12] Wilsons Ventures, holder of two EHO permits, moved to intervene after the court’s oral ruling but before entry of the written final order; the circuit court denied intervention the same day it entered the final order (October 25, 2024).[13] The County noticed its appeal on November 22, 2024; Wilsons Ventures noticed its appeal on December 13, 2024. A panel initially reversed the circuit court in June 2025; after granting rehearing in July, the same panel again reversed on September 5, reinstating its core conclusions.[14] The panel held that the circuit court abused its discretion by denying developer Wilsons Ventures LLC’s motion to intervene, because the residents’ complaint included developer-specific allegations and requested relief tied to EHO projects, making Wilsons Ventures’ defenses directly relevant (“germane”) under Rule 3:14.[15]  The court also held that Wilsons Ventures’ appeal was timely, as the circuit court’s amended partial stay modified the final order and reset the 30-day appeal clock.[16]  The panel clarified that Code § 15.2-2285(F)’s 30-day window applies to challengers’ suits, not to intervention, and that courts may add parties "at any time" as justice requires under Code § 8.01-5(A).[17]  The appellate decision did not address or decide the legality of the EHO itself; instead, it vacated the circuit court’s order voiding the EHO and its related injunction, and remanded the case for further proceedings with Wilsons Ventures joined as a party.[18]  We continue to closely follow any updates on this case.
 
What does the ruling mean on the ground?
The circuit court’s judgment voiding the EHO and its injunction are reversed. The case returns to Arlington Circuit Court with instructions to join Wilsons Ventures and proceed. The appeals court did not validate or invalidate the EHO. The merits will be back before the circuit court, now with a developer-defendant at the table to respond to developer-specific allegations and potential remedies affecting project approvals and occupancy. The panel’s timeliness ruling clarifies that when a trial court meaningfully modifies a final order via a stay with additional terms that direct conduct, the modification can reset the deadline to notice an appeal.
 
What the court decided:
Timeliness of appeal: The court held Wilsons Ventures’ notice of appeal was timely because the circuit court’s November 13, 2024, amended partial stay modified the earlier final order and reset the 30-day clock for filing.[19] The court denied the appellees’ motion to dismiss Wilsons Ventures’ appeal as untimely.[20] The court ruled that the circuit court abused its discretion by denying Wilsons Ventures’ motion to intervene.[21]

The panel found: Wilsons Ventures’ defenses are “germane” (i.e., directly pertinent) to the suit because the residents’ complaint includes allegations and requested relief tied to EHO permit holders and their projects—claims that developers like Wilsons Ventures are best positioned to address.[22]

No 30-day limit bars intervention. The trial court misapplied the 30-day filing window in Code § 15.2-2285(F), which governs when challengers must file zoning suits, not when nonparties may move to intervene. By statute, courts may add new parties “at any time as the ends of justice may require” (Code § 8.01-5(A)).[23]

Narrow grounds: The panel emphasized it was deciding only the Rule 3:14 intervention issue.[24] It did not decide whether Wilsons Ventures is a necessary/indispensable party under the separate Friends of Clark Mountain framework and did not reach the merits of the EHO’s validity.[25]
 
Albemarle: Related “Missing Middle” challenges in Albemarle County (Charlottesville area) have likewise seen procedural recalibration.[26] In Edward G. White, et al.  v. Charlottesville City Council, the court granted the City’s Motion to Reconsider its June 30, 2025, ruling on plaintiffs’ Motion for Entry of Default Judgment and granted the City’s Motion for Relief from Default and for Leave to File a Late Answer.[27] The court denied the plaintiffs’ Motion for Entry of Default Judgment and deemed the City’s Answer (submitted as Exhibit A to the City’s motion) filed as of September 2, 2025.[28] Pursuant to Rule 3:19(b), the court ordered the City to reimburse plaintiffs $20,000 for fees incurred in connection with: (i) the default-judgment motion; (ii) the City’s motion for relief from default/leave to file late answer; (iii) the City’s motion to reconsider and written submission of substantial defenses; and (iv) appearances at the June 30 and August 13 hearings.[29] The matter is continued on the court’s docket.[30] This action underscores the appellate courts’ insistence on proper party participation and strict adherence to procedural rules before reaching the merits of local zoning reforms aimed at increasing housing options.
 
Both the Arlington and Charlottesville area cases illuminate the strict procedural standards required in modifying or creating new zoning law – a principle repeatedly emphasized by Virginia’s appellate courts.[31] Judge Schell notably emphasized compliance with “procedural requirements...to provide adequate notice and protection to its citizens when a local governing body determines to change zoning”.[32] For the most part, the ’procedural requirements’ exist for the purposes of providing notice and an opportunity to be heard to any groups or individuals whose interests may be affected by the reforms.[33] In both foregoing examples, failures to adhere to procedural requirements - regardless of the underlying policy - proved to create delays and confusion that disrupted active and planned development projects.[34] Given the breadth of affected parties and scale of potential effects of reforms to ordinances governing or affecting residential building allowances and population density, communities, developers, and local legislators and administrators alike should stay vigilant to observe and comply with procedural requirements to better ensure, where warranted, timely and unobstructed reform of zoning ordinances.[35] Adherence to an established procedure also provides a level of predictability, enabling stakeholders to better prepare for (or hedge against) changes in law that might be detrimental or terminal to ongoing and planned building projects. The recent remands signal that proper party alignment and procedure will be, as they should, scrutinized before any rulings are provided on the merits.

Policy Successes and Failures

Successes:

• Arlington’s EHO policy initially enabled the approval of 45 projects that would have been prohibited under previous zoning, demonstrating the potential for incremental increases in housing supply and diversity.[36]
• These policies can offer more housing choices, particularly in high-demand areas near jobs and transit, and can support local economic vitality.[37]

Failures:

• Prior to the September 2025 appellate ruling, the circuit court’s voiding of Arlington’s EHO and injunction illustrated the vulnerability of reforms to procedural and party-alignment challenges. However, the appeals court has now reversed and remanded, vacating the circuit court’s judgment and restoring the EHO’s status pending further proceedings with all necessary parties joined.[38]
• In Austin, Texas, and Spokane, Washington, similar reforms produced only modest increases in housing production—newly enabled developments accounted for roughly 5 percent of Austin’s total housing output in the year following reform.[39]
• Internationally, in Australia, the lack of accompanying infrastructure investment and affordable housing requirements has limited the effectiveness and community benefits of such policies.[40]

 
Impediments to Success and Causes of Failure/Discord
 

• Procedural Compliance: The active parties in both Arlington’s and Charlottesville’s cases encountered legal setbacks due to failures in adhering to statutory procedures, such as providing adequate notice and properly considering infrastructure impacts.[41] As Arlington and Albemarle County show, errors in party participation, intervention, or timeliness can upend or delay reforms irrespective of their policy merits.[42]  The flip side of this coin is that interested parties who may not have been involved in the process of drafting and amending the zoning ordinance will be granted a voice should they decide to participate in the litigation of issues regarding the ordinance’s application. 
• Infrastructure Planning: A consistent critique is the absence of parallel investment in infrastructure—schools, transportation, utilities—to support increased density, which can undermine the success and public acceptance of these policies.[43]
• Affordability Mandates: Without explicit requirements for affordable housing, increased density may not translate into greater affordability for lower- and middle-income residents, limiting the reach of the intended benefits.[44]
• Community Opposition: Concerns about neighborhood character, property values, and potential strain on local services often generate resistance, complicating implementation and threatening the sustainability of reforms.[45]

 
Key Opposing Views
 

• Supporters argue that Missing Middle policies are essential for addressing housing shortages, promoting inclusivity, and supporting economic growth by enabling a broader range of housing options.[46] Currently, 75% of residential land in U.S. cities is zoned exclusively for single-family detached homes.[47]
• Opponents maintain that such reforms can erode neighborhood character, overburden existing infrastructure, and fail to guarantee affordability without additional mandates or safeguards.[48] Organized homeowners who treat homes as investments rather than depreciable consumption goods vote in favor of policies that maintain the value of their investment under the assumption that multifamily development entering their community will diminish it.[49]

 
Effects and Objective Evaluation

The intended effects of Missing Middle policies are to increase housing supply and affordability.[50] However, evidence from Arlington, Albemarle County, and other jurisdictions indicates that zoning changes alone yield only modest results unless paired with robust infrastructure investment, affordability measures and procedural transparency.[51] National and international experiences reinforce the lesson that procedural rigor, community engagement, and comprehensive planning are critical to achieving meaningful outcomes.[52]
 
Nugget of Wisdom

Zoning reform is not a cure-all; its effectiveness depends on procedural integrity, transparent communication, and the integration of infrastructure and affordability considerations from the outset.[53] Sustainable, community-supported growth requires iterative governance and a willingness to adapt policies in response to local needs and challenges.[54]
 
Conclusion

Recent appellate rulings make clear that for Missing Middle housing policies to achieve their intended goals, localities must balance the desire for increased density with strict procedural compliance, infrastructure investment, and meaningful community engagement. In Arlington, the Court of Appeals’ reversal and remand restore the matter to the circuit court with a developer-defendant at the table and clarify key timeliness and intervention principles.[55] Albemarle likewise returned to its circuit court for further proceedings, with the merits of its zoning reform yet to be decided.[56] For Virginia localities and others contemplating Missing Middle policies, the path forward is to couple thoughtful policy design with procedural rigor, proactive infrastructure planning, and targeted affordability strategies—so that the benefits of increased housing choice and affordability are realized and durable.  Developers and community stakeholders should pay close attention not only to the drafting and enactment of these zoning reforms, but also to the progress of subsequent cases applying any “untested” Missing Middle ordinances.