Arlington Missing Middle case to be reviewed by the VA Supreme Court... sort of.

The three-year legal saga over Arlington County’s Expanded Housing Options (EHO) Ordinance continues.

On May 19, 2026, the Virginia Supreme Court agreed to review a NIMBY challenge to the VA Court of Appeals ruling on the Arlington EHO case, also known as the Arlington Missing Middle case. This comes after a June 2025 decision from the VA Court of Appeals that effectively put the EHO ordinance back on the books and allowed continued processing of EHO permits.

What is actually being reviewed?

It is important to note that the VA Supreme Court is not reviewing the EHO ordinance on the merits (i.e. whether the EHO ordinance is legally valid) but rather on the procedural issue addressed in the VA Court of Appeals ruling.

The VA Court of Appeals’ ruling that effectively reinstated the EHO ordinance did not rule on the actual substance of the lawsuit: whether the EHO ordinance is legally valid. Instead, it focused on the procedural issue of the plaintiffs failing to include “indispensable parties” to the lawsuit. In this case, those “indispensable parties” are developers that received EHO permits and whose property rights would be affected by the ruling in the EHO case.

Should the VA Supreme Court uphold the VA Court of Appeals ruling, the case would return to trial court and all parties would argue the merits of the ordinance. If the Supreme Court reverses the ruling, the Circuit Court’s ruling voiding the EHO ordinance would be reinstated.

For now, developers should know that EHO is currently valid law and development can continue.

How did we get here?

March 2023: The Arlington County board voted unanimously to approve the EHO ordinance, which allows for by-right development of up to six units of housing on lots previously zoned single-family in Arlington. In response, a group of nine homeowners (“Neighbors for Neighborhoods”) filed a lawsuit claiming that the ordinance was passed  unlawfully without proper consideration for impacts on current residents.

September 2024: The Arlington Circuit Court ruled in the plaintiffs’ favor, voiding the EHO Ordinance ab initio (from the beginning), citing improper procedure and unlawful delegation of authority. As a result, 45 multifamily projects were paused and holders of the EHO permits were left in legal limbo.

November 2024: The Arlington County Board voted to appeal the Circuit Court judgment. Following the appeal, Wilsons Ventures, LLC — holder of two EHO permits — moved to intervene in the appeal. Intervention allows a nonparty to join ongoing litigation to protect their interest as related to the case.

A detailed explanation of Arlington County’s appeal and Wilsons Ventures’s intervention can be found in this explainer we put together last year.

June 24, 2025: The VA Court of Appeals reversed the Circuit Court decision, putting EHO back in play. The Court of Appeals ruled that “indispensable parties,” including Wilsons Ventures, had not been named in the lawsuit. 

April 8, 2026: The VA Supreme Court heard oral arguments on whether to accept the case for full review.

May 19, 2026: The VA Supreme Court announced it would review the case.

What’s next?

Again, we wait.

Neighbors for Neighborhoods says that it expects the case to go to trial within the next 3-6 months. Regardless of the Supreme Court’s decision, we do not anticipate this to be the end of the legal fight over the EHO Ordinance. If the Supreme Court chooses to uphold the Court of Appeals ruling, the case would go all the way back to trial court, meaning a new hearing with all parties included — the Plaintiffs, Arlington County, and EHO permit holders. If the Supreme Court chooses to overturn the ruling instead, the EHO would be voided once again on procedural grounds, but the lack of a ruling on its merits would likely trigger further appeals.

No matter the decision, the impact will be felt statewide as other localities (Alexandria, Richmond, etc.) consider similar approaches to increasing missing middle housing development.

For now, Arlington County has confirmed that “[t]he County will continue to follow the EHO ordinance and review process as adopted by the Arlington County Board in 2023.” This means that as long as the EHO is not stayed by the courts, the County will continue to accept and process EHO development applications.

As we said earlier,  developers should know that EHO is currently valid law and development can continue. If the Supreme Court reverses the Court of Appeals ruling and thus voids the EHO ordinance, this will not apply retroactively to already completed structures.