Local government actions must comply with the in-person open meeting requirements of the Virginia Freedom of Information Act.

The Supreme Court of Virginia voided Fairfax County’s modernized zoning ordinance, known as zMOD. The Supreme Court decision, Berry v. Board of Supervisors of Fairfax County, 884 S.E.2d 515 (Va. 2023), made the zMOD ordinance void ab initio.

The zMOD ordinance would have replaced a 40-year-old zoning ordinance in its entirety. The zoning change was necessary to keep up with growth of the large, diverse, wealthy and well-educated county. With approximately 1.2 million residents, Fairfax County is the most populous locality in Virginia. Forty percent of the county’s residents speak a language other than English at home. The county has the fifth-highest median household income of any county in the United States. Among adult residents, 65 percent have a bachelor’s degree or higher.

The county’s original adoption of zMOD occurred at electronic meetings in 2021. Absent a specific exemption, the Virginia Freedom of Information Act (found at Code of Virginia §§ 2.2-3700 et seq.) requires public bodies, including county boards and commissions, to meet and vote at in-person meetings.

The Supreme Court of Virginia found that the county’s adoption of zMOD did not satisfy the open meeting requirements under the Virginia Freedom of Information Act. The Supreme Court considered and rejected the following exemptions:

• The Fairfax County Continuity Ordinance: The Continuity Ordinance authorized electronic meetings during the COVID-19 emergency only for matters “necessary to assure continuity in Fairfax County government.” The Supreme Court held that zMOD was not such a matter.
• The statute under which the county’s Continuity Ordinance was adopted (the statute can be found at Code of Virginia § 15.2-1413): The Supreme Court noted that the statute authorized the county to “provide a method to assure continuity in government” but did not independently apply.
• The exemption within the Virginia Freedom of Information Act (the relevant exemption can be found at Code of Virginia § 2.2-3708.2(A)(3)): This exemption would have applied only if the purpose of the meeting had been to address the COVID-19 emergency.
• The Budget Statute (found at 2020 Va. Acts ch. 1283 4-0.01(g) (Reg. Sess.); 2020 Va. Acts ch. 56 § 4-0.01 (g) (Spec. Sess. I)): The Budget Statute allowed electronic meetings for actions of public bodies if (among other things) the purpose of meeting was “statutorily required or necessary to continue operations of the public body ... and the discharge of its lawful purposes.” The Supreme Court held that the meetings to consider and adopt zMOD were not necessary to continue operations of the public body.

The Supreme Court of Virginia held that the exemptions as then in effect only encompassed time-sensitive matters that the public body must undertake to perpetuate its operation, whereas the modification of a 40-year-old zoning ordinance after a five-year revision process was not a time-sensitive matter and therefore not exempt from the in-person meeting requirements. The Supreme Court therefore voided zMOD. As a consequence, Fairfax County reverted to its 1978 Zoning Ordinance (2021 Reprint).

The Supreme Court of Virginia noted that subsequent amendments to the Virginia Freedom of Information Act, enacted after the attempted adoption of zMOD, broadened the exemption from in-person meetings and would have allowed the county to consider and vote on a matter such as zMOD via electronic meetings during the emergency. (The subsequent relevant amendment can be found at Code of Virginia § 2.2-3708.2(A)(3).)

Void Ab Initio
The ruling of the Supreme Court of Virginia was retroactive: the Court held that zMOD was void ab initio, that is, void as of the date of adoption of zMOD in 2021. That could raise a question about the effect of zoning decisions purportedly made under the zMOD ordinance (when it was thought to govern county zoning) but, as a result of the Court’s ruling, in effect made under the prior ordinance.

Seeking to address (among other things) the retroactivity of the ruling, Fairfax County filed, on April 19, 2023, a Petition for Rehearing in the Supreme Court of Virginia in the Berry case. In its petition, the county emphasized that the Court’s decision to render zMOD void ab initio has “cast a shadow over almost two years of zoning actions.” The petition notes that the Berry decision affects hundreds of legislative zoning approvals and thousands of other administrative zoning decisions.

Meanwhile, acting quickly after the Berry decision, the County Planning Commission and Board of Supervisors have held in-person public hearings, and the board has readopted zMOD. The readoption purported to confirm zoning decisions by the county in the interim two years when zMOD was thought to have been in effect. The outcome of further proceedings, as sought in the Petition for Rehearing, might clarify the status of those interim actions.