"You're taking a huge risk, in my humble judgment, if you're building a six-plex or a four-plex while the case is pending in the court of appeals." This quotation was reported by ARLnow.
A circuit court judge said that to Arlington developers in October 2024, right after voiding the zoning ordinance that let them build those six-plexes and four-plexes in the first place. Almost two years later, the case is still not resolved. And in the meantime, the units keep closing.
A five-bedroom duplex in North Highlands sold for $1,610,000 in March 2026. Its neighbor, a four-bedroom half of the same pair, sold for $1,615,000 in December 2025. Both exist because of Arlington's Expanded Housing Option ordinance, known locally as Missing Middle, which lets a lot that used to hold one single-family house become multiple homes. Buyers are writing seven-figure checks for these properties as if the zoning underneath them is settled. It isn't.
If you're comparing Arlington to other close-in neighborhoods and one of the properties on your list is a Missing Middle build, or a teardown lot zoned for one, the legal status of that zoning matters more to your decision than the finish level in the kitchen. The court history helps explain why.
A Policy That's Legal Today and Was Void Yesterday
As The Land Lawyers reported, the Arlington County Board adopted the EHO ordinance in March 2023, capping approvals at 58 permits a year through 2028 and allowing more housing on lots previously zoned for one house. A group of homeowners calling itself Neighbors for Neighborhoods sued almost immediately, arguing the county never adequately studied the effect on infrastructure like sewers, stormwater, and schools before adopting the change.
They won, then lost, then won again, and the case is still moving:
- September 2024: Circuit Court Judge David Schell ruled for the plaintiffs on most counts, voided the ordinance from its inception, and instantly put roughly 45 approved EHO projects into legal limbo, as YIMBY Law reported.
- June 2025: The Virginia Court of Appeals reversed him, but only on a procedural technicality. It found that developers holding EHO permits, including a builder called Wilsons Ventures, should have been named as parties to the lawsuit and weren't. That reinstated the ordinance without ever ruling on whether it's actually valid, as Arlington Magazine reported.
- September 2025: After a brief second look, the appeals panel confirmed its own reversal, as ARLnow reported.
- April and May 2026: ARLnow reported that the Virginia Supreme Court heard oral arguments in April, then ARLnow reported that it agreed to take the case in May, again strictly on the procedural question of who belongs in the lawsuit, not on whether Missing Middle itself holds up.
- This fall: Oral arguments on the merits of that procedural appeal are expected, and the group funding the homeowners' side has told reporters it expects an eventual trial within three to six months of the Supreme Court's May order.
Arlington County's own position, stated through a spokesperson, is that the ordinance is valid law right now and the county will keep processing EHO applications until a court tells it otherwise. That's a true statement. It's also not the same as the ordinance being permanently safe from a reversal, which is what an actual buyer needs to know.
How Builders Have Responded to the Legal Uncertainty
By the spring of 2025, roughly seven months after Judge Schell's ruling, at least 16 of the 45 previously approved EHO projects had switched course and applied to become ordinary single-family homes instead, according to an ARLnow review of county permitting records. Most of the remaining projects, representing roughly 175 units, either made the same pivot or simply stalled. Developers who had the most direct financial exposure to the ruling didn't wait around for clarity. They de-risked.
As ARLnow reported, the most telling example belongs to J. Alex Wilson, the independent developer whose two EHO permits became the reason the Court of Appeals reinstated the ordinance in the first place. Wilson fought hard to stay in that case, by his own account because losing his projects would have wiped him out financially. He won that fight. His duplex properties on 25th Street South each sold for around $1.2 million. And then, this past August, he told ARLnow he was stepping back entirely, declining to file any further arguments as the case heads to the Virginia Supreme Court and taking no new EHO projects while the law remains unsettled. His current project, a set of three townhomes going up where a house exploded in December 2024, doesn't rely on Missing Middle zoning at all. The lot was already zoned for a duplex, so the units don't carry the same legal exposure. They're listed at $1,899,000 each, with an open house that ran August 15.
Classic Cottages, a custom homebuilder that puts up around 40 houses a year across the county, ran into a version of the same problem. Its president told Arlington Magazine it was "baffling" to be denied the right to intervene in the original lawsuit and then, months later, be treated by the appeals court as a necessary party all along.
In an ARLnow report, the lawyer representing the homeowners in that fight offered a blunt read on what happens if the Supreme Court sends the case back to trial with more defendants at the table.
"Everything becomes a lot more complicated. It becomes more expensive. It becomes procedurally a lot more chaotic."
That's Zach Williams, a land use attorney at Venable LLP, describing what a retrial with dozens of developer-defendants would look like. It's also a fair description of what a buyer inherits by closing on a property built under a zoning framework that could still be unwound.
What This Actually Changes for a Buyer or Investor
None of this means Missing Middle properties are a bad purchase. In the months after the Court of Appeals reinstated the ordinance, the county approved nine more EHO projects totaling 40 units, and a total of 59 EHO projects were still listed on the county's permitting dashboard as of last spring. The market for these units, based on the North Highlands and 25th Street sales, is strong. Arlington's own County Board is already discussing what a post-litigation version of the policy might look like: board member Susan Cunningham raised the question of the expiring annual permit cap at a July 2026 meeting, a sign the county expects to keep legislating on this regardless of how the court rules.
What changes is the due diligence layer. If you're evaluating a lot with redevelopment upside, or a finished EHO unit, the permit's vintage matters. A structure that's already built and occupied is not going to be un-built if the Supreme Court eventually sides with the homeowners; the YIMBY Law analysis indicates that outcome wouldn't apply retroactively. Wilson's current project is on a lot already zoned for a duplex, so it doesn't rely on EHO.
That's a due diligence question worth asking before you write an offer, not after: is this unit's permit history clean and complete, or is it one of the roughly 59 still moving through a system that a state supreme court is actively reviewing? An agent who understands renovation feasibility and permit history isn't a luxury on a property like this. It's the difference between buying an asset and buying a legal position.
Quick Questions
Is Missing Middle zoning legal in Arlington right now? Yes. The county is actively processing EHO applications and the ordinance remains in effect while the Virginia Supreme Court reviews a procedural question in the underlying lawsuit.
What happens if the homeowners eventually win? The case would go back to circuit court for a retrial on the actual merits of the ordinance, this time with EHO permit holders as parties. Attorneys following the case expect that to be slower and more contested than the first trial, not faster.
Does a ruling against the ordinance undo buildings that are already finished? The YIMBY Law analysis indicates that a ruling against the ordinance would not apply retroactively to completed structures.
Should this stop someone from buying an EHO property? That's not a call to make from a blog post. It's a call to make with a real estate attorney and an agent who will actually walk the permit history with you before you're under contract, which is a conversation worth having regardless of which side of this case you'd want to win.
If you're weighing a Missing Middle property, a teardown lot with redevelopment potential, or just want a second set of eyes on what a renovation-upside purchase in Arlington actually involves right now, Dallen Russell can walk through the numbers and the permit history with you. Book a free consultation. Coffee's on him.
This article is general information, not legal, tax or financial advice. Consult a qualified professional about your situation.
