On Thursday, March 23rd, the Virginia Supreme Court decided Berry v. Fairfax County Board of Supervisors. This case struck down the amended Fairfax Zoning Ordinance that has been in effect since March 23, 2021, known as “zMOD,” because it was adopted during a virtual meeting in violation of the Virginia Freedom of Information Act (“FOIA”). The Court concluded that the adoption of zMOD at a virtual meeting was not necessary to assure the continuation of the County’s essential functions and services, and therefore was not authorized by any of the exceptions to FOIA’s open meeting requirements.
This decision potentially impacts all actions of the Fairfax County Board of Supervisors on land use applications that were processed in accordance with zMOD. As of this notification, Fairfax County has acknowledged on its website that the effect of the decision is the reinstitution of the 1978 Zoning Ordinance (2021 Reprint).
The immediate consequences of the Court’s decision are being analyzed by our land use and litigation lawyers. We are reviewing the potential impact of the Court’s decision on past and future rezonings, special permits, variances, appeals, building and occupancy permits, transactional questions, title issues, and more in order to advise our clients how to respond to this extraordinary development.
At a minimum, until zMOD is reenacted, it is likely that pending and new Fairfax County applications will need to conform to the prior (and, for the moment, current) Zoning Ordinance, or be placed on hold. This means that all submission materials and zoning citations may need to be amended/reformatted in accordance with the prior Zoning Ordinance.
We are also reviewing potentially broader consequences of the Court’s decision because the FOIA provision upon which the case was decided has possible statewide implications. This includes whether actions taken by any public body in the Commonwealth during a virtual meeting between March 20, 2020, and July 1, 2021, that did not satisfy the technical requirements of FOIA could be challengeable.
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.
Update as of March 29, 2023
We understand the Fairfax Board of Supervisors is pursuing various parallel courses to change the Court’s decision or, at a minimum, mitigate its effects.
We anticipate that on April 11, 2023, the Board will vote to authorize public hearings on a proposed readoption of zMOD. The Planning Commission hearing would likely be on May 3rd, with the Board’s hearing scheduled for May 9th. In the meantime, County staff is reviewing pending applications under the prior 1978 Zoning Ordinance (2021 Reprint).
The County does not expect the Court’s decision to directly affect most previous approvals, including administratively approved site plans and permits that are not subject to change or revocation.
Anyone with questions about a pending application or a previous approval may contact Suzanne Wright, in the Department of Planning and Development (suzanne.wright@fairfaxcounty.gov) to be referred to the appropriate staff.
