The Brief: Pre-hearing Plot Twist before the Virginia Supreme Court Case

Stop Missing Middle podcast, produced by Neighbors for Neighborhoods

We launched our new podcast series Stop Missing Middle, Episode 1, "The Brief." It brings you up to date on the dramatic court case and the cliffhanger, end of summer surprise. You can email us with any questions on the status of Missing Middle: info@neighborsforneighborhoods.org

Episode Description

Will Arlington County's Missing Middle Housing ordinance, also known as Expanded Housing Option (EHO), be reversed? The battle to save single-family neighborhoods is awaiting a hearing date before the Virginia Supreme Court and the latest drama is encouraging. Learn what's happening as developers quickly build multiplexes, destroying neighborhoods while the zoning code is temporarily in place.

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Transcript

Imagine waking up to the sound of construction noise only to learn from a neighbor that a six unit apartment building is going up next door, no notification, no warning, and it's coming to other neighborhoods in Arlington, Virginia, where the Arlington County Board passed a radical zoning change that eliminates all single family zoned neighborhoods. Understandably, homeowners sued and the case has reached the Virginia Supreme Court and is awaiting a hearing date. In another neighborhood on North Troy Street, we can witness the real world application of these zoning policies. Right. So a developer purchased a pretty modest single family home for roughly $860,000.

OK, which is, I mean, pretty standard for that area. Yeah, pretty standard. But that home was demolished to make way for a brand new duplex. And now, based on the real estate records, each side of that resulting duplex sold for $1.6 million. Wait, each side?

Each side. Yeah, so $1.6 million apiece. That price tag...places those units completely out of reach for the very demographic this policy was intended to support. Right. Like teachers, firefighters and police. Yeah, precisely. I mean, when you look at the real estate records, the disconnect becomes pretty glaring. We are talking about housing that requires an exceptionally high household income just to manage the monthly payments. Right. Effectively pricing out public servants. Yeah. And that is the core contradiction we are seeing in the documents. Today, we're going to explore the facts and the public records regarding the controversial expanded housing option which is also known as missing middle housing we want to review what the Arlington County Board set out to accomplish and the intense ongoing legal battle because when this policy was first being debated and introduced to the public it was heavily marketed –  The Arlington County Board marketed it – as a way to build affordable housing for middle-income workers. Well, the theory was that by diversifying the types of housing available, moving away from just large single-family homes or towering high-rises, the market would naturally provide more accessible options for young professionals and middle-class families.

If you take a property like the one on North Troy Street... An eight hundred and sixty thousand dollar single family home. And you replace it with a duplex where each individual side costs one point six million dollars. The baseline cost of entering that neighborhood has essentially doubled. Because we are talking about free markets here and it seems like the market is pointing in the opposite direction of affordability. Because the traditional economic model suggests that simply adding more supply to a market will eventually lower prices by meeting demand. Right, supply and demand, you know, basic stuff. But land in highly desirable dense areas carries an inherent premium. When a county changes the zoning to allow multiple units on a single lot, the underlying value, that land spikes almost immediately. Because you can build more on it now. Yeah, precisely.

Developers recognize that a single plot can now yield multiple luxury units. I see. So the economic dynamics of high demand real estate frequently challenge those textbook supply and demand theories, especially when like we saw on North Troy Street, the older, more accessible housing stock is the very thing being demolished to build the luxury units. Right. You're actively losing the existing affordable housing. The new shell costs twice as much as the old shell. Yeah. So there are no more fix-it uppers that young couples can purchase their first home. They are completely priced out.

That shifts our conversation from the financial cost to the physical reality on the street because it is not just about property values it is about what happens to a quiet block overnight yeah and this is where it gets really personal for the people living there oh for sure Michael Bruen lives next door to that six-plex. His quiet backyard now has an 18-bedroom, 16-bathroom apartment building towering over it, taking down all the trees. Michael Bruen warns, quote, this could happen to you. And think about that density. If you have four family members per unit, that can be 24 people. Think of all the cars parking on the street and trash cans. It's totally changing the block. Again, this can all happen overnight without notification. Crazy.

Arlington County points out, though, that they are trying to solve a housing shortage. Their perspective is that the region is growing, demand is high, and increasing the overall supply of housing units is a necessary step for the future of the county. Sure. However, the homeowners argue this creates severe congestion on narrow older roads, making it difficult for waste disposal trucks or even emergency vehicles to navigate. That's a huge safety issue.

So, homeowners turn to the courts to stop it. Nine residents filed a lawsuit against the Arlington County Board. The county did not follow state law. That was the central argument the homeowners brought to the Arlington Circuit Court. They argued that the county rushed these sweeping zoning changes without properly studying the impacts on the infrastructure. The trial judge, Judge David Schell, presided over a five-day bench trial. He looked at the evidence, agreed with the homeowners. And ruled the EHO zoning amendment void. Yeah, he struck it down. So, the trial court essentially tells Arlington County, good intentions for housing, don't excuse skipping mandatory impact studies or bypassing state law.

Yep. So as of September 24, EHO is dead. The county has to void the permits they issued, halt all the review processes, and the citizens get this massive victory. But as you know, in high-stakes real estate litigation, the battle rarely just ends at the trial court level. Right. So we enter a procedural plot twist that just flips the entire case upside down. And it's driven by someone who wasn't even part of the initial trial.

Enter a developer named Wilson's Ventures. Yes. Wilson's Ventures. They held two of these EHO permits that had just been voided by the judge. And they attempt to intervene in the lawsuit. But the timeline is the crazy part. They filed their motion to intervene after the five-day trial had already concluded. Judge Schell had already issued his ruling. And the homeowners obviously argued this was completely improper. The trial judge agreed and denied the motion because the case was effectively over. How can you join a trial that's already over?

But Wilson's Ventures appealed that specific denial to the Virginia Court of Appeals. In September 2025, the Virginia Court of Appeals dropped a hammer. They reversed the trial judge's decision. They ruled that Wilson's Ventures was a, quote, necessary party to the litigation. Wow. Because the final order voiding the ordinance would essentially destroy the value of the developer's two permits. So, their property rights were directly impacted. But this is a really critical legal nuance we have to clarify for you. The Court of Appeals did not rule that the missing middle housing policy was legally sound. Correct. They didn't touch the merits of Judge Schell's ruling about the infrastructure studies, the tree canopy promises. or the delegation of power. They ruled strictly on procedural grounds regarding the developer's right to participate.

However, the practical effect of this procedural ruling was just seismic. And because the trial court's final order was reversed to allow the developer in, the EHO ordinance was suddenly temporarily back on the books. Just back from the dead. So, this legal limbo lifts the injunction. Arlington County immediately resumes issuing permits and construction across the county just starts up again. Wilson's Ventures got what they wanted and completed the permitted buildings.

Which brings us to May 2026. The Virginia Supreme Court officially agrees to hear the homeowners’ appeal regarding this entire procedural intervention. So the Supreme Court is now going to heavily scrutinize whether a developer who missed a filing deadline should be granted the power to overturn a massive five-day trial verdict that they didn't even participate in. We are actually awaiting a hearing date this fall. But there is a pretty wild update. Attorney Jay O'Keeffe filed the opening brief. Neither the developer nor the county board filed responsive briefs before the Virginia Supreme Court, effectively going silent.  Wait… they just didn't file anything?  Yeah, it leaves the supreme court justices to review the homeowner's arguments without a direct written counter narrative filed on the docket. It's like they just walked away from the debate.  Yeah.  Wilsons Ventures got their permits built.

Based on the lack of briefs – I mean – it would be shocking if the Virginia Supreme Court did not rule in the Arlington homeowner's favor. Oh, for sure. The most likely outcome would be to return to the original trial court decision and void the expanded housing option, which gives Arlington citizens a big victory and preserves single-family zoned neighborhoods.

And that is a clean transition to Richmond's latest zoning news because the political winds are shifting back to a common-sense approach to our housing crisis. Axios actually reported on this. The quote is: “Richmond retreats on neighborhood density.” They chose not to eliminate single-family zoning. Instead, they are increasing the number and size of ADUs up to 1,200 square feet. Richmond listened to its citizens, unlike Arlington. Yeah, Mayor Danny Avula actually addressed this. He said, “We've heard people say that they want density that makes sense, and we totally agree.” This latest draft does that by increasing density along major transit corridors.

So that brings us to the call to action from neighbors for neighborhoods. They are asking the Arlington County Board to follow Richmond's lead, drop the lawsuit appeal, and stop spending taxpayer money on outside legal fees. Because to date, more than $1.5 million have been spent to sue their own residents.

The battle over Missing Middle in Arlington County is over the false promise of affordable housing and what neighborhoods will look like in the future – a dense urban landscape of multiplexes or saving single-family neighborhoods and the charm and attraction they represent. Yeah. It's the battle communities are facing across this country with Arlington on the front lines and a court case that's attracting a lot of attention.

You can support the citizens' lawsuit by donating at neighborsforneighborhoods.org. The grassroots group is actively raising funds for their Supreme Court battle.

The fight to preserve the charm of Arlington's neighborhoods is far from over.