VA Supreme Court Voids 2021 Zoning Update; Fairfax Supervisors Violated FOIA Mandates

FAIRFAX COUNTY, VA — A Virginia Supreme Court ruling on Thursday voided the updated zoning ordinance adopted in 2021, saying that the Fairfax County Board of Supervisors violated the state's open meeting law.

The ruling supported a claim made in a lawsuit filed by four county residents that the board of supervisors had violated the open meetings provision of the Virginia Freedom of Information Act by holding meetings electronically rather than in person.

Due to the COVID-19 pandemic, the board was operating under an emergency order at the time, which authorized electronic meetings to ensure continuity of government operations.

On Friday, Patch reached out to Fairfax County for comment about the decision and received this response from a county spokesman:

“We are currently evaluating the Virginia Supreme Court decision and considering our options. In the meantime, the 1978 Zoning Ordinance is presently in effect and available for reference on the County website.”

In 2016, Fairfax County began the process of updating its zoning ordinance for the first time since 1978.

By the time the draft zoning ordinance, known as Z-Mod, reached the Fairfax County Planning Commission on Jan. 28, 2021, public hearings in the county were being conducted electronically. The board of supervisors had declared a state of emergency in 2020 to ensure government actions during the COVID-19 pandemic. As part of this process, meetings previously held in-person were done electronically.

After deferring its decision in January 2021, the planning commission voted on March 3, 2021, to recommend that the board of supervisors adopt Z-Mod.

Virginia Coalition for Open Government: Full Text of Virginia Supreme Court Ruling

Two days later, Fairfax County residents David Berry, Carol A. Hawn, Helen H. Webb, and Adrienne A. Whyte filed for an injunction, according to the court ruling. They sought to prevent the board from enacting the ordinance update at its March 9, 2021, meeting, which was to be conducted electronically.

"The Residents alleged that the Board lacked the authority under Virginia law to consider and vote on Z-Mod in an electronic meeting, and, as such, any resulting action or approval concerning Z-Mod should be declared void [from the beginning]," according to court documents.

On March 9, 2021, the Fairfax County Circuit Court held an emergency hearing, at which the residents' motion for a temporary/preliminary injunction was denied. Later that day, the board of supervisors considered adoption of Z-Mod, but deferred the final vote to its March 23 meeting. The circuit court released its written decision on March 12, 2021.

The four residents filed objections to the court's order, including a motion for reconsideration, on March 22, a day before the board was to meet electronically.

The court eventually dismissed the motion on May 4, but the board of supervisors had already voted to adopt Z-Mod in March. The board asked the court to dismiss the complaint, which it eventually did on Sept. 9, 2021, ruling that the residents' motion was considered moot.

"Specifically, the circuit court had already denied the Residents’ request for a preliminary injunction to prevent the Board from proceeding with the amendment process electronically," Justice Wesley G. Russell Jr. wrote, in the ruling issued on Thursday. "Similarly, the circuit court found the Residents’ request for a permanent injunction to prevent the Board from proceeding with the amendment process electronically also was moot because the Board had already met and passed Z-Mod electronically."

The circuit court agreed with the county's assertion that zoning was an essential act of local government and therefore was subject to the emergency order and meant zoning meetings could be held electronically.

In his opinion, Russell said the circuit court erred in its ruling that the residents' complaint was moot because it was not specifically a pre-adoption challenge of Z-Mod.

The complaint had two parts. The first was asking the court to prevent the board of supervisors from voting on Z-mod electronically, which became moot once the measure was adopted. However, the second part of the complaint asked the court to void Z-mod if the board voted on it during an electronic meeting. The adoption of Z-mod did not make that part moot.

The board of supervisors argued that the complaint was not an appeal to the Z-mod decision, but Russell disagreed.

"The Residents’ complaint that the Board lacked the authority to do so rested on the situation as it existed and did not depend on future events unfolding in a particular way," the judge wrote. "In this sense, the complaint was ripe because it presented the circuit court with 'specific adverse claims, based upon present rather than future or speculative facts.'"

Now that the residents' claim had standing, Russell considered whether the board of supervisors had authority to vote on Z-mod during an electronic meeting.

"Regarding continuity in government matters, the Continuity Ordinance only permits the Board to meet without complying with VFOIA, if the 'items proposed to be considered are necessary to assure continuity in Fairfax County government and the usual procedures cannot be implemented safely or practically," Russell wrote.

While the ordinance gave the board of supervisors the right to conduct meetings electronically without complying with the state's Freedom of Information requirements in specific situations, the judge determined that the ordinance only applied to matters specifically concerning the pandemic or where timeliness was a factor, such as voting on an operating budget or renewing a contact by a certain deadline.

"It is undisputed that the Board’s consideration and ultimate adoption of Z-Mod was not undertaken to address the COVID-19 emergency," Russell wrote.

Russell agreed with the residents that passing Z-Mod, although a function of government, did not need to be voted on in a timely fashion, because it hadn't been updated in 40 years. Since there was no deadline that required the board of supervisors to act, it was not covered under the "continuity of government" requirement of the emergency order and therefore the board of supervisors was required to follow VAFOIA requirements.

"VFOIA’s open meeting requirements applied to meetings at which the Board considered and ultimately adopted Z-Mod, and thus, the circuit court erred in dismissing the Residents’ complaint," Russell wrote, in his conclusion. "Accordingly, we reverse the judgment of the circuit court and enter final judgment for the Residents, declaring Z-Mod void [from the beginning]."