On March 23, 2023, the Virginia Supreme Court issued an important ruling in favor of Fairfax County taxpayers (Residents) represented by Alliance Law Group (ALG). The Supreme Court reversed the decision of the Fairfax County Circuit Court and ruled that the Fairfax County Board of Supervisors (BOS)  violated Virginia’s open meetings law by adopting a new zoning modernization ordinance (Z-Mod or zMOD) in an electronic meeting held during the Covid-19 pandemic. The Court ruled that, because the BOS had acted without legal authority in adopting the ordinance, Z-Mod was void ab initio (i.e., from the beginning). The case is David Berry, et al. v. Board of Supervisors of Fairfax County. A copy of the Court’s opinion can be found at https://www.vacourts.gov/opinions/opnscvwp/1211143.pdf.

On behalf of the Residents, ALG  argued that there was no authority for the BOS to adopt Z-Mod by electronic meeting, particularly when there was already an existing zoning ordinance.

ALG tried unsuccessfully to enjoin the BOS public meeting (held electronically) where it considered the adoption of Z-Mod. But the motion for a preliminary injunction was denied by Fairfax County Circuit Court Judge John M. Tran on the ground that zoning was an essential governmental function and that the BOS had the authority to adopt Z-Mod by electronic means during the pandemic. ALG subsequently attempted to have the issue certified to the Virginia Supreme Court for an interlocutory decision on the ground that the issue was one of first impression. The BOS opposed this request and it was denied by Judge Tran.

In a subsequent hearing, Fairfax Circuit Court Judge David A. Oblon dismissed the Residents’ Complaint on several procedural grounds. He also agreed with Judge Tran and held that since zoning is an essential governmental function, the BOS had the authority to adopt Z-Mod in an electronic meeting during the pandemic.

ALG appealed this decision to the Virginia Supreme Court, which agreed to consider the appeal. The Court grants review in only a very small percentage of the cases that it is asked to consider.

Craig Blakeley of ALG argued the case before the Virginia Supreme Court on January 11, 2023. A recording of the Virginia Supreme Court argument can be found at https://www.vacourts.gov/courts/scv/oral_arguments/2023/jan/home.html. On March 23, 2023, two years to the day that the BOS adopted Z-Mod, the Court issued its ruling voiding it.

The result was a complete victory for the position advocated by ALG. The Court ruled that there was no need for the BOS to act on Z-Mod during the pandemic. The Court noted that the Z-Mod project had been underway for several years and that there was an existing zoning ordinance that had been in effect since 1978. Accordingly, the Court ruled that adoption of Z-Mod via an electronic meeting was not an emergency situation and that it was unnecessary to the continued operation of the BOS. Accordingly, the Virginia Supreme Court reversed the decision of the Fairfax County Circuit Court and ruled that the action of the BOS adopting Z-Mod violated Virginia’s open meetings law and was void from the beginning.

The BOS has given notice that it intends to petition for rehearing of the Court’s decision on Z-Mod. ALG expects that the BOS’s request for rehearing will be supported by other local governments and local government-oriented organizations.

ALG also believes that the BOS may ask the General Assembly to overrule the Supreme Court decision through legislative action. Moreover, the BOS is moving quickly to readopt Z-Mod.

In so doing, it appears that the BOS is ignoring one of the important lessons of the Supreme Court’s decision – that the BOS needs to provide Fairfax County citizens with a meaningful opportunity to consult with each other concerning important land use issues and to provide the BOS with thoughtful input on zoning proposals that will impact their lives.

ALG strongly believes that the public hearing process should be more than just a “check the box” exercise, where the local government goes through the motions of providing the opportunity for public input, that it then quickly discards.

As always, ALG stands ready to defend the rights of residents and businesses to provide meaningful input to the local government land use process in Fairfax County and elsewhere in Virginia and to defend their rights against the interests of big-money developers and local governments that are unwilling to actually take citizen views into account in their land-use decisions.

This blog entry will be updated with further details once the BOS files its petition for rehearing and after the Court issues its decision on that petition.

For further information, please contact Craig Blakeley at cblakeley@alliancelawgroup.com or 703-848-8336.