Arlington: Expanded Housing Options (Missing Middle)

Arlington County, Virginia, sits directly across the Potomac River from Washington, D.C. It is small, dense, expensive, and unusually well connected to transit, with multiple Metro rail lines running through it. For decades, large parts of the county were reserved for detached single-family houses only, which meant that on most residential blocks you could legally build one home and nothing else. As land prices climbed, that rule pushed the price of a place to live far out of reach for many teachers, nurses, and younger families who work in the area.

To address this, the Arlington County Board voted unanimously on March 22, 2023 to change its zoning rules and create what the county calls Expanded Housing Options, or EHO, the local name for what planners across North America call Missing Middle housing, the small multi-unit buildings that sit between a single house and a large apartment block (source). The change let property owners build small multi-unit homes by right on land that had been limited to one detached house, removing the need for a special rezoning each time.

The policy was contentious precisely because Arlington is affluent and built out. Supporters argued the county could not keep its workforce, or honour its own climate and equity goals, while banning anything denser than a single house near some of the best transit in the region. Opponents, many of them long-time homeowners, worried about neighbourhood character, tree loss, parking, and whether the county's aging pipes could handle more households. That last concern, infrastructure, later became the legal hinge the whole policy turned on.

Under the EHO rules, a residential building in the affected zones could contain up to six homes instead of just one. The county set the count by lot and district rather than letting every lot reach six. The new buildings had to respect the same basic envelope as a detached house in the same area, meaning the same minimum setbacks from the property line, the same maximum lot coverage, and the same height limits (source). The goal was that a six-unit building would look, from the street, roughly like a large house rather than an apartment block.

The ordinance applied across the county's lower-density residential districts, specifically the R-20, R-10, R-8, R-6, and R-5 zones, and it took effect on July 1, 2023 (source). On those lots, duplexes, townhouses, and small multiplexes of three to six units became allowed by right, so an owner who met the standards did not have to win a discretionary approval to proceed.

To soften the impact on existing neighbourhoods, EHO projects carried extra requirements that did not apply to a plain single-family house. Those included specific design and screening rules, a cap on gross floor area, and tree-planting obligations, all meant to keep the new buildings compatible with the surrounding street (source). In short, the policy traded the old one-house-per-lot ceiling for a modest, design-controlled increase, not a free-for-all.

A group of homeowners sued to overturn EHO, and on September 27, 2024, Arlington Circuit Court Judge David Schell struck the ordinance down (source). The core of his ruling was not about whether more housing is good or bad. It was about process: he found that the County Board had not done enough homework on the local effects of the change before adopting it.

The decision focused heavily on infrastructure. Even though a county expert testified that Arlington had enough capacity to handle the expected growth, the judge wrote that there was "no evidence presented that the county considered likely overflows" and that "it appears from the evidence that no consideration was given to the effect of additional sewage" from the extra homes (source). In plain terms, he ruled that the county had to study the localized strain on wastewater and stormwater systems, including the smaller sewer connections running from individual properties, and that it had not adequately done so.

He also found procedural defects in how the Board adopted the change and concluded that it had improperly handed legislative judgement to county staff (source). The practical result was severe: the judge declared the amendment void from the start and barred the county from issuing any further EHO permits.

By the time the September 2024 ruling landed, EHO was not theoretical. Since the ordinance took effect, Arlington had approved 45 EHO permits, and the projects behind them were at various stages of becoming real homes (source). Of those 45, twelve had reached the demolition-permit stage and seven had building permits issued. Two projects were under construction, and one internal-conversion project had already received a certificate of occupancy, meaning someone could move in (source).

The county's response was blunt. Officials said they had to void all EHO permits and halt every review tied to EHO development, and a county spokesperson confirmed that staff were reaching out to current permit holders and applicants to deliver the news (source). For owners and builders who had spent money on plans, demolition, and construction in reliance on a valid county permit, a single court ruling erased the legal basis for their projects. That is the human cost of a policy being struck down after it is already in motion, and it is the detail that anyone watching housing reform should keep in front of them.

The county appealed, and at first the appeal worked. On June 24, 2025, the Virginia Court of Appeals overturned the circuit court and reinstated EHO (source). Notably, the appeals court did not rule on the wastewater question or the merits of the policy. It reversed on a procedural problem: it found that the homeowners who sued had failed to bring in the developers holding approved EHO permits, who the court treated as indispensable parties, people whose rights are so directly affected that the case cannot fairly be decided without them. The court wrote that "appellees failed to join indispensable parties to the litigation below" and sent the case back so those parties could be added (source).

Then came the whiplash. Roughly two weeks later, on July 8, 2025, the same panel of judges granted a rehearing requested by the challengers and set aside its own June 24 ruling (source). In practical effect, the reinstatement was undone. As the law firm McGuireWoods summarized, the ordinance is "void again, for now," at least until the court holds the rehearing (source). The same three judges who put the policy back on the books pulled it back off within a fortnight, agreeing to reconsider the appeal they had just decided (source). This is the crux of the Arlington story, and it is why no one should describe it as a tidy strike-down followed by a clean revival.

As of the most recent confirmed reporting in July 2025, the EHO ordinance is void and Arlington is not issuing new EHO permits while the Court of Appeals prepares to rehear the case (source). Rather than scrap the existing ordinance and re-adopt a new one after fixing the record, the county chose to keep fighting through the courts. That choice keeps the original policy alive on appeal, but it also leaves the policy suspended and its earlier permits in limbo while the litigation runs its course.

It is worth being fair to the critics here, because their objection was process, not ideology. The circuit court did not say Arlington was forbidden from allowing multiplexes. It said the county had to study the localized effects, especially on the sewer and stormwater systems that carry waste and rainwater away from each property, and document that work before flipping a county-wide switch (source). Whether or not you agree the study was inadequate, the lesson is concrete: a housing reform that skips, or appears to skip, the homework on infrastructure and procedure gives opponents a clean legal target that has nothing to do with the merits of more housing. A good policy can still be erased on a technicality.

For readers in British Columbia, Arlington's saga is a useful contrast with our own Missing Middle reform. Arlington's EHO was a county ordinance, a local rule passed by a local board, and that is exactly the kind of measure a local court can void if it finds a flaw in how the local government adopted it. British Columbia took a different route. Bill 44, formally the Housing Statutes (Residential Development) Amendment Act, 2023, is a provincial law, passed by the legislature and given royal assent on November 30, 2023 (source).

Bill 44 requires local governments to allow small-scale multi-unit housing rather than leaving the choice to each council. In most communities of more than 5,000 people, it forces municipalities to permit three to four homes on a typical single-family lot depending on lot size, and as many as six homes on larger lots close to frequent transit (source). Municipalities had until June 30, 2024 to update their zoning bylaws to comply, and the province has estimated the change could produce more than 130,000 new small-scale homes over ten years (source).

The practical difference is durability. A provincial statute is much harder for a court to unwind than a single county's ordinance, because the legislature's authority to set housing rules across the province is broad and the law applies uniformly rather than resting on one local board's record. Arlington's reform could be challenged as a single local act with an allegedly thin study behind it. Bill 44 is the rule of the land, the same in every covered municipality, which gives builders and owners in BC a far steadier legal footing than EHO has given Arlington.

The takeaway is not that Missing Middle housing is legally fragile everywhere. It is that how a reform is enacted decides how easily it can be attacked. Arlington's policy was sound on its goals but vulnerable on its record, and a court erased it, revived it, and then suspended it again inside a single year. BC's Bill 44 was designed to avoid that fate by making the rule provincial and uniform rather than local and discretionary.

For owners and builders in British Columbia, the lesson translates into a checklist. First, treat the infrastructure question as real, not a formality. The single defect that sank Arlington's EHO was the failure to study and document local sewer and stormwater capacity (source). When you plan a four-plex or six-plex under Bill 44, confirm that the lot's water, sewer, and stormwater connections can actually carry the added load, and keep that confirmation on file. Second, follow your municipality's adopted Bill 44 bylaw to the letter, because procedural shortcuts are what opponents use when they cannot win on the merits. Third, document everything, your design compliance, your tree and setback obligations, your permits, so that if anyone questions a project the paper trail is already there.

Arlington shows what happens when those steps are skipped: 45 permits, real construction, and a family-ready certificate of occupancy all thrown into doubt by a procedural ruling (source). BC's stronger legal foundation does not make diligence optional. It makes diligence the thing that lets you build with confidence on top of a law that, unlike Arlington's, is built to last.