07/02/2025
Appeals Court Reverses EHO | Missing Middle Decision; Homeowners Appeal; the Next Day, Court Says It Will Reconsider. Also: Trial Court Tosses Charlottesville’s Version of EHO.
On June 24, the Virginia Court of Appeals reversed the trial court order that voided Arlington’s EHO/Missing Middle rezoning (decision here). Ostensibly, if it stands, developers will be able to build up to 6-unit buildings on single-family lots throughout Arlington, regardless of transit access. Two days later, however, Arlington homeowners asked the court to “stay” (i.e., pause) its decision. On June 30, they asked the court to reconsider its ruling. The next day, the court said it would reconsider its decision and hold oral argument.
For now, the County Board has been working to re-start EHO. However, at any time, the appeals court could put a hold on its June 24 ruling. Homeowners have three chances to reverse it—the judges who decided it could reverse themselves; the entire appeals court could reverse it; or the Virginia Supreme Court could reverse it. If the June 24 decision survives those challenges, it goes back to the trial court to decide what to do. If it’s reversed, the appeals court must then deal with the County Board’s appeal on the substance of the case, which is being pursued separately from this June 24 case.
What happened?
Importantly, the appeals court did NOT review or decide anything about the substance of the County’s legal failures on EHO, including the trial Judge’s finding in September 2024 that the County failed to plan adequately for the impact of new density. Instead, it sided with a lone developer who argued he was not part of the lawsuit but should have been because he owns land in Arlington and had an EHO permit. The appeals court agreed, based on a 3-step test.
In their appeal of June 30, the homeowners say the appeals court examined only one of 3 steps to determine if the developer’s case had merit (i.e., whether he had a material interest in the outcome). They concede he did, just like the 27,000 landowners who the County Board rezoned. The other two requirements, they say, favor them. Namely, that it’s impractical or impossible to add all affected landowners to the lawsuit (step 2), and (step 3), the County adequately represented the developer’s views on EHO at trial.
Indeed, ASF’s FOIA requests show the County has now spent $1,353,000 on outside lawyers charging up to $700/hour to defend EHO. Those same lawyers just lost again—on June 30, a court voided Charlottesville’s Missing Middle upzoning when they missed a critical deadline.
Missing Middle Units Get Built and Reality Lays Bare that It’s Not About Affordability: Half the House at Twice the Price
Of note, land records show the developer who won the appeal on June 24 bought his property after homeowners filed their case in April 2023. He is reportedly looking to sell a duplex for $1.2 million per unit, more than double the cost of the house he tore down to build them.
ArlNow recently profiled another duplex on sale for $1.8 million per unit; also double the cost of the home torn down to build them.
