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Commonwealth's Counties

Virginia Supreme Court invalidates zoning ordinance rewrite adopted during pandemic at virtual public meeting

In an opinion dated March 23, 2023, the Virginia Supreme Court declared a rewrite of the Fairfax County zoning ordinance (known as “Z-Mod) void (having no legal effect), based on a challenge by citizens alleging the adoption took place in violation of the open meeting provisions of the Virginia Freedom of Information Act. The Court ruled that the adoption process, which took place at a series of electronic meetings, did not meet provisions of law, budget language or local continuity of government ordinance language in place at the time. Click here to read the case.

During the Pandemic in 2020, the Governor declared a state of emergency and also included special language in the state budget to allow public bodies to meet electronically under certain criteria. In addition, many local government bodies adopted Continuity of Government Ordinances. Not every ordinance was worded identically, however, the overarching purpose of these continuity of government ordinances was to continue to provide for the local government to serve the public by creating a safe means to conduct public business during the emergency. Fairfax County adopted such an ordinance using the relevant authority. Several citizens challenged the rewrite of the zoning ordinance, claiming this action did not meet the criteria of the emergency authority in place. The Fairfax County Circuit Court upheld the authority of the county to rewrite the zoning ordinance and the citizens appealed to the Virginia Supreme Court.

In reversing the Fairfax County Circuit Court, the Supreme Court opined that while a number of actions would meet the criteria and authority provided for continuity of government, under the language of the ordinance enacted by Fairfax, modification of the zoning ordinance was not among them.

This decision raises issues as to whether other localities holding virtual public meetings during that time might have those decisions declared invalid by courts. 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.

VACo Contact: Phyllis Errico, Esq., CAE

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