The Virginia Supreme Court ruled last week in Berry v. Board of Supervisors of Fairfax County that the Fairfax County Zoning Ordinance, known as “zMOD,” is void ab initio and has had no legal effect since it was adopted by the Fairfax County Board of Supervisors in March of 2021. Therefore, for the time being, at least, the prior zoning ordinance, originally adopted in 1978, governs all recent and pending land use decisions in Fairfax County, which is the largest county in Virginia.
The adoption of zMOD occurred in 2021 while Fairfax County was trying to conduct business virtually due to the COVID pandemic emergency. Virginia’s General Assembly had passed legislation allowing public bodies to meet electronically to address certain matters during this time. Fairfax County had also adopted an ordinance to establish procedures for electronic meetings. However, the Virginia Supreme Court determined that Fairfax County violated the open meeting requirements of the Virginia Freedom of Information Act (VFOIA) by adopting zMOD as part of a virtual public hearing.
The implications of this decision are still being sorted out at the local and state level, but it raises some immediate concerns. For example, land use decisions made by the Board of Supervisors under zMOD that had purportedly been in effect since July 1, 2021, are now in question, along with any related financial and legal agreements based on such decisions. Pending land use applications are now also in limbo and could face potential delays in being scheduled for public hearings until a fix is identified. Other local jurisdictions in Northern Virginia are currently reviewing their own public meeting histories to ensure that they, too, have not violated VFOIA requirements.
Guidance from Fairfax County, including potential actions that the General Assembly might request, is expected to be provided in the coming days. Please contact Evan Pritchard if you have questions about how this decision could impact approved or pending land use projects.