On Thursday, March 23rd, the Virginia Supreme Court decided Berry v. Fairfax County Board of Supervisors, which struck down the amended Fairfax Zoning Ordinance that had been in effect since March 23, 2021, known as “zMOD,” in large part because it was adopted during a virtual meeting in violation of the Virginia Freedom of Information Act (“FOIA”). A summary of this case and its potential implications was included in the firm’s March update, found here.
On May 9, 2023, the Fairfax County Board of Supervisors readopted zMOD following a duly-advertised public hearing. zMOD is now the applicable zoning ordinance for Fairfax County.
Additionally, on April 19, 2023, Fairfax County filed a Petition for Rehearing in the Berry case, which may be found here.
Walsh Colucci lawyers have been active in supporting Fairfax County’s Petition. The firm was retained to draft two amicus briefs: one on behalf of the Home Builders of Virginia (HBAV) and the Virginia Association for Commercial Real Estate (VACRE), found here; and one on behalf of the Virginia Land Title Association (VTLA), found here.
The Court has received our amicus filings, as well as an amicus brief from the Virginia Association of Counties, the Virginia Municipal League, the Local Government Attorneys of Virginia, and the International Municipal Lawyers Association.
Pursuant to Va. Code § 8.01-675.2 and Rule 5:37 of the Rules of the Supreme Court, the Court will rehear and review the case if one of the justices who decided the case against the petitioner (in this case, any of them since the decision was unanimous) certifies that there is good cause for such rehearing.
We will advise our clients once more is known. In the interim, if you have any questions, please feel free to call your principal point of contact with the firm.