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The Real Deal - Summer 2025

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 housing supply near transit corridors and urban centers, supporting broader sustainability and inclusivity goals.[2] This article examines these recent developments, with a particular focus on the Arlington County Circuit Court's invalidation of the Expanded Housing Option (EHO) zoning policy, ongoing litigation in Charlottesville, and comparative insights from similar policy implementations in the U.S. and internationally.
 
Arlington and Charlottesville – 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.[3] Localities such as Arlington and Charlottesville have pursued these reforms to provide more attainable housing, foster economic diversity, and promote sustainable urban growth.[4] 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.[5] On October 25, 2024, the Arlington County Circuit Court issued a landmark ruling invalidating Arlington’s Expanded Housing Option zoning policy, widely recognized as a “Missing Middle” initiative designed to increase housing density in traditionally single-family neighborhoods.[6] Judge David Schell's decision in Marcia Nordgren v. Arlington County Board underscored the critical importance of procedural compliance and transparency in zoning changes.[7] Specifically, the ruling hinged on Arlington County's failure to adequately notify developers of ongoing litigation, a procedural shortcoming that rendered the EHO policy unlawful.[8]

Arlington County's EHO policy aimed to diversify housing options by allowing the development of duplexes, triplexes, townhouses, and other small multi-family units within areas previously restricted to single-family zoning. The policy sought to address Arlington's housing affordability crisis and increase housing supply near transit corridors and urban centers, aligning with broader sustainability and inclusivity goals set forth by the County.[9] Though the court invalidated the EHO policy, it permitted exemptions for 45 projects that had been approved under the policy before their ruling.[10] Though these 45 projects were permitted to proceed as planned, the delays caused by the court hearing and appeal caused significant setbacks due to failures to meet financial, supply chain, and construction deadline contingencies. Arlington’s challenges are echoed in Charlottesville, where the Plaintiff in White v. City Council similarly contests zoning reforms aimed at increasing residential density.[11] Plaintiffs argue procedural missteps, emphasizing in particular that significant zoning changes were improperly enacted without due consideration of local infrastructure impacts, i.e., schools' transportation, utilities and population density. In response, Charlottesville’s City Council contends that challenges linking current ordinances to prior comprehensive plans are procedurally untimely, highlighting Virginia’s statutory 30-day limitation period for zoning appeals.[12]

Both the Arlington and Charlottesville cases illuminate the strict procedural standards required in modifying or creating new zoning law – a principle repeatedly emphasized by Virginia’s appellate courts. 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”.[13] 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. In both of the 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. 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. 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.    

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.[14]
• These policies can offer more housing choices, particularly in high-demand areas near jobs and transit, and can support local economic vitality.[15]

Failures:

• The Arlington County Circuit Court invalidated the EHO policy due to procedural deficiencies, specifically the failure to provide adequate notice to developers about ongoing litigation, highlighting the vulnerability of reforms to legal challenges.[16]
• 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.[17]
• Internationally, in Australia, the lack of accompanying infrastructure investment and affordable housing requirements has limited the effectiveness and community benefits of such policies.[18]

 
Impediments to Success and Causes of Failure/Discord
 

• Procedural Compliance: Both Arlington and Charlottesville encountered legal setbacks due to failures in adhering to statutory procedures, such as providing adequate notice and properly considering infrastructure impacts.[19] Virginia courts have emphasized the necessity of procedural rigor to protect the rights of all stakeholders.[20]
• 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.[21]
• 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.[22]
• 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.[23]

 
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.[24] Currently, 75% of residential land in U.S. cities is zoned exclusively for single-family detached homes.[25]
• Opponents maintain that such reforms can erode neighborhood character, overburden existing infrastructure, and fail to guarantee affordability without additional mandates or safeguards.[26] 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.[27]

 
Effects and Objective Evaluation

The intended effects of Missing Middle policies are to increase housing supply and affordability.[28] However, evidence from Arlington, Charlottesville, and other jurisdictions indicates that zoning changes alone yield only modest results unless paired with robust infrastructure investment, affordability measures and procedural transparency.[29] National and international experiences reinforce the lesson that procedural rigor, community engagement, and comprehensive planning are critical to achieving meaningful outcomes.[30]
 
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.[31] Sustainable, community-supported growth requires iterative governance and a willingness to adapt policies in response to local needs and challenges.[32]
 
Conclusion

Recent judicial decisions and policy analyses 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. For Virginia localities and others contemplating “Missing Middle” policies, the path forward requires balancing the need and desire for growth and density with procedural integrity, community engagement, and proactive infrastructure planning. 

By learning from both local and broader experiences, policymakers can better align zoning reforms with community needs, ensuring that the benefits of increased housing choice and affordability are fully realized.

As always, if you need real estate or land use support for your growing business, do not hesitate to reach out to Whiteford’s team of real estate, business, and land use attorneys for legal representation.