The Virginia Association of Counties (VACo) is advising its member localities, including Arlington, to hunker down and take a very close look and see if any measures they enacted during the first 15 months of COVID might be in peril following a Virginia Supreme Court ruling.
At issue is the March 23 court opinion invalidating Fairfax County’s zoning rewrite – known as zMOD – because its adoption in early 2021 did not follow public-comment rules still in place at the time and not changed by the General Assembly later that year.
Fairfax officials, and a Circuit Court judge who made the initial ruling in the matter, contended that Fairfax was able, under actions taken at the state level in early 2020 to address the pandemic, to move forward on the zoning rewrite using online, rather than in-person, public testimony.
But the justices decided that a zoning rewrite was not enough of a pressing issue to merit exemption from longstanding rules giving the public the ability to comment in person on topics under consideration.
And that ruling could have implications statewide.
“This decision raises issues as to whether other localities holding virtual public meetings during that time might have those decisions declared invalid by courts,” noted Phyllis Errico, an attorney for VACo, in an April 4 message to members.
Errico advised that, if they haven’t already done so, localities get ahead of the situation.
“Counties should consult with their local-government attorney to review the issues examined in this decision, including how meetings were held, the specific wording of the continuity of government ordinance they operated under, and the subject matter of the actions taken that may be impacted by this decision,” she said.
At the onset of COVID in the spring of 2020, then-Gov. Ralph Northam declared a state of emergency and also included special language in the state budget to allow public bodies to meet electronically as opposed to in person under certain criteria, Errico noted. In addition, many local-government bodies adopted continuity-of-governance ordinances that guided how they would proceed in the COVID era.
Since not every such ordinance was worded identically, they could be subject to differing court interpretation. However, the Supreme Court’s ruling seems to suggest that any actions taken by a local government, prior to receiving General Assembly authority to meet and take comment “virtually” for routine matters, might be subject to court challenge.
Merely taking action during the period between March 2020 and June 2021 that was inconsistent with the court’s recent ruling would not, by itself, invalidate any actions taken by a local government. Residents would need to file suit to challenge them, as was the case in Fairfax County.
(The court’s ruling on the Fairfax issue most likely will lead that county’s Board of Supervisors to go back and hold new public hearings. Whether it will result in any changes, major or minor, to the zoning rewrite that was ruled invalid remains to be seen.)
VACo has been the prime professional and lobbying arm of Virginia’s counties since 1934. In addition to being a VACo member, the Arlington government also is a member of the Virginia Municipal League, which tends to focus on city governance but also includes some urban counties as members.