Supreme Court Of Virginia Strikes Down County Zoning Overhaul Adopted Via Electronic Meetings During COVID-19 Pandemic

• Published date: 26 May 2023
• Subject Matter: Real Estate and Construction, Coronavirus (COVID-19), Construction & Planning, Government Measures
• Law Firm: Pillsbury Winthrop Shaw Pittman
• Author: David Miller and Nino Li

TAKEAWAYS

• The Supreme Court of Virginia recently voided the new zoning ordinance approved by Fairfax County via electronic meetings in 2021.
• The Supreme Court held that the adoption of the zoning ordinance was not within any authorized exemption from in-person meeting requirements.
• The county has petitioned the Supreme Court to reconsider its ruling and readopted the zoning ordinance at an in-person public meeting.

The Supreme Court of Virginia voided Fairfax County's modernized zoning ordinance, known as zMOD. The Supreme Court decision, Berry v. Board of Supervisors of Fairfax County, 884 S.E.2d 515 (Va. 2023), made the zMOD ordinance void ab initio.

The zMOD ordinance would have replaced a 40-year-old zoning ordinance in its entirety. The zoning change was necessary to keep up with growth of the large, diverse, wealthy and well-educated county. With approximately 1.2 million residents, Fairfax County is the most populous locality in Virginia. Forty percent of the county's residents speak a language other than English at home. The county has the fifth-highest median household income of any county in the United States. Among adult residents, 65 percent have a bachelor's degree or higher.

The county's original adoption of zMOD occurred at electronic meetings in 2021. Absent a specific exemption, the Virginia Freedom of Information Act (found at Code of Virginia ' 2.2-3700 et seq.) requires public bodies, including county boards and commissions, to meet and vote at in-person meetings.

The Supreme Court of Virginia found that the county's adoption of zMOD did not satisfy the open meeting requirements under the Virginia Freedom of Information Act. The Supreme Court considered and rejected the following exemptions:

• The Fairfax County Continuity Ordinance: The Continuity Ordinance authorized electronic meetings during the COVID-19 emergency only for matters "necessary to assure continuity in Fairfax County government." The Supreme Court held that zMOD was not such a matter.
• The statute under which the county's Continuity Ordinance was adopted (the statute can be found at Code of Virginia ' 15.2-1413): The Supreme Court noted that the statute authorized the county to "provide a method to assure continuity in government" but did not independently apply.
• The exemption within the Virginia Freedom of Information Act (the relevant exemption can be found at Code of Virginia ' 2.2-3708.2(A)(3)): This exemption would have applied only if the purpose of the meeting...