The Supreme Court of Virginia on March 23, 2023, published an opinion invalidating Fairfax County's Zoning Ordinance, as adopted in 2021 (Z-Mod). The court found that Fairfax County's approval of Z-Mod during a virtual hearing violated the Virginia Freedom of Information Act's open meeting requirements that were in effect at the time of Z-Mod's adoption:

"Having concluded that the Board adopted Z-Mod in a manner that violated the open meeting provisions of VFOIA, we turn to the question of remedy. The Residents argue that, because "Z-Mod could not be adopted through an electronic meeting[,]" the Board's purported adoption of Z-Mod was and remains "void ab initio[.]" We agree."

A full copy of the opinion in Berry, et. al., v. Board of Supervisors of Fairfax County is available online.

At the time of this alert, Fairfax County has not released guidance as to its next steps, or as to the status of zoning actions approved virtually during the pandemic, approved pursuant to Z-Mod or currently pending Fairfax County zoning and land development applications. Fairfax County has posted a note on its website that states "The Zoning Ordinance presently in effect is the 1978 Zoning Ordinance (2021 Reprint)."

Holland & Knight's Mid-Atlantic Land Use Team is currently analyzing this decision and its potential impacts and is monitoring developments on an ongoing basis. Holland & Knight will continue to evaluate the potential impact of this decision with respect to zoning and land development approvals made in other Virginia jurisdictions during the pandemic.