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Va. Supreme Court tosses 2021 Fairfax zoning rewrite

Supervisors violated freedom-of-information rules by adopting policy in online meeting
Metro Creative

Oh yes, we can, said the Fairfax County government.

Oh no, you can’t, replied the Virginia Supreme Court.

Guess which one had the final say?

And as a result, the county government’s controversial rewrite of zoning regulations – known as zMOD – enacted in March 2021 is now in limbo.

Virginia’s highest court on March 23 issued a 29-page opinion overturning a Circuit Court decision that had allowed the zoning rewrite to stand. In its opinion, penned by Justice Wesley Russell Jr., the high court ruled that localities did not possess the power to conduct routine business by electronic means until the summer of 2021, following authorization by the General Assembly.

Fairfax officials had argued – successfully at the Circuit Court level, unsuccessfully before the justices – that language approved in a budget package enacted by the legislature in 2020 at the start of the pandemic gave localities the authority to transact significant amounts of business in ways that otherwise would have run afoul of Virginia’s Freedom of Information Act, or VFOIA. But the state Supreme Court ruled that only emergency measures were eligible for that exemption, and that the rewrite of the zoning plan, which had been in the works for several years, did not meet that standard.

“The board adopted zMOD in a manner that violated the open-meeting provisions of VFOIA,” the high court ruled. “It is not a time-sensitive matter, and its adoption is not and was not necessary for the county to continue operations.”

By considering the zoning plan in an online format, the Board of Supervisors “prevented the public from participating in the manner required by VFOIA, and thus, potentially limited public participation and input into the process,” justices ruled.

The suit had been filed by four county residents. They lost at the Circuit Court level because a judge found that zoning “is inherently an essential act of local government” and ruled that action regarding zMOD during an electronic meeting was allowable under rules adopted in the 2020 General Assembly budget package.

With that ruling now reversed, county officials will need to go back and find a way to re-start consideration of the zoning rewrite. By extension, the court ruling also potentially puts at risk a whole host of measures enacted by local governments during the first year of the pandemic.