The saga of the contentious “Missing Middle” legal proceedings in Arlington has taken a surprising turn, with a ruling issued by a three-judge panel of the Virginia Court of Appeals that has left both sides with more questions than answers. Perhaps the first question for lawyers and non-lawyers alike is to ask this: what exactly are the implications of a “reversed and remanded” ruling? 

The 2023 lawsuit filed by nine homeowners in the Arlington Circuit Court challenged the “Expanded Housing Ordinance” that was the product of the County’s Missing Middle Housing Study (which began in 2020). The trial court judge ruled in favor of the plaintiffs on four of their seven claims, and entered an order that voided the ordinance completely (with the effect of cancelling building permits and stopping construction). The recent Court of Appeals order reversed the Circuit Court’s judgment, based on procedural issues relating to a third-party that had filed a motion to intervene in the case. The Court of Appeals remanded the case back to the Circuit Court. 

The County Board responded immediately with a short press release indicating it was considering next steps. Just as quickly, press releases from supporters and opponents of the lawsuit were issued, providing interesting perspectives. A press release issued by Neighbors for Neighborhoods, a group that supports the plaintiff homeowners, included the following statement: “Nothing in the June 24th order addresses the decision of the trial court invalidating EHO for violating Virginia law. The order only addresses whether or not Wilson Ventures, which sought to intervene in the case after the trial was over and the judge ruled in favor of the homeowners, was a necessary party to the litigation.” Meanwhile, the organization known as VOICE (Virginians Organized for Interfaith Community Engagement) issued a press release calling the Court of Appeals ruling “a major victory for housing equity and inclusion in Arlington County”. 

It is too early to tell if the plaintiff advocates were downplaying the ruling a bit too much, and whether advocates such as VOICE are overstating the effect of the order. Perhaps it helps for all of us to remember the immortal words of Yogi Berra: “It ain’t over till it’s over.” 

It is clear that there are numerous actions for the County Board and the plaintiffs to consider in the coming weeks. Should the County start accepting applications for development, pursuant to the expanded housing options in the 2023 ordinance? Should the County start re-issuing building permits? As for the plaintiff homeowners, an updated press release from Neighbors For Neighborhoods indicates that the plaintiff homeowners have filed a Motion to Stay with the Court of Appeals, effectively asking the court to put a pause on the June 24 ruling. It is likely that motions and cross-motions (and related briefs) may be flying back and forth in the coming weeks. And while there are many procedural questions that need to be addressed, an important substantive question relates to the wording in the ruling: What does “reversed and remanded” mean, as a practical matter? 

The saga continues, with no end in sight. The only certainty seems to be that the