FAIRFAX COUNTY, VA — When the Virginia Supreme Court overturned Fairfax County’s 2021 adoption of the Modernized Zoning Ordinance (zMOD), a great deal of uncertainty remained about the amendments the Fairfax County Board of Supervisors passed following the original adoption.
On Thursday, Fairfax County said the board of supervisors would likely schedule a set of public hearings to readopt zMOD to help clear up that confusion, according to a release. The hearings will likely be scheduled for May 3 for the planning commission, followed by a May 9 board of supervisors hearing, provided the planning commission recommends adoption.
“The board will consider readopting the updated zoning ordinance at a public hearing. zMOD was approved during the COVID pandemic through the electronic meeting policy,” said Chairman Jeff McKay, in a release. “The ordinance was built on a foundation of thorough and comprehensive public input over three years. As we all learned during the pandemic, electronic meetings increased public engagement by allowing more people to participate from any location. When zMOD was originally approved, 70 speakers participated in the Board of Supervisors’ public hearing, which was open to the public and broadcast live, as are all public hearings.”
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Related: Fairfax County Zoning Update Voided With VA Supreme Court Ruling
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In 2016, Fairfax County began the process of updating its zoning ordinance for the first time since 1978.
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By the time the draft zoning ordinance, known as zMOD, reached the 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 zMod.
Two days later, Fairfax County residents David Berry, Carol A. Hawn, Helen H. Webb, and Adrienne A. Whyte filed for an injunction. They sought to prevent the board from enacting the ordinance update at its March 9, 2021, meeting, which was conducted electronically. They claimed that violated the open meetings provision of the Virginia Freedom of Information Act
The Fairfax County Circuit Court denied the residents’ request for a temporarily injunction, which allowed the board of supervisors to vote to adopt zMod on March 23, 2021.
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.
But on March 23, 2023, the Virginia Supreme Court agreed with the claim made in the 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.
The court’s decision hinged on the issue of timeliness. While the emergency order applied to actions related to the pandemic and the continuity of government, there was no pressing need for the board to adopt zMOD when it did.
“VFOIA’s open meeting requirements applied to meetings at which the Board considered and ultimately adopted zMOD and thus, the circuit court erred in dismissing the Residents’ complaint,” Wesley G. Russell Jr. wrote, in the conclusion to his ruling. “Accordingly, we reverse the judgment of the circuit court and enter final judgment for the Residents, declaring zMOD void [from the beginning].”
The decision effectively voided the updated zoning ordinance.
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