Information Charlottesville

The Virginia Supreme Court has ruled that the Fairfax County Board of Supervisors did not have the ability to update their zoning code at an electronic meeting in March 2021. That was during a time when a state of emergency was in effect and many localities in Virginia had put “continuity of government” rules in place. 

A group of landowners had sought an injunction to stop the Board from taking that action, but a circuit court judge did not grant one. Fairfax County began updating its zoning ordinance in 2016 and planned for a full replacement. According to the ruling, the public engagement effort lasted into late 2020. 

Former Governor Ralph Northam declared a state of emergency in March 2020 and the General Assembly included rules in a budget bill about how local government bodies could meet during the emergency. 

The Fairfax Planning Commission voted to recommend approval of the new zoning on March 3, 2021. Six days later, an emergency Circuit Court hearing ruled Supervisors could take a vote electronically which they did on March 22. The legal battle continues with opponents contending the continuity of government statute only allowed necessary government actions and that a vote on the zoning ordinance could wait. 

The Virginia Supreme Court agreed to take up the case of Berry v. Board of Supervisors of Fairfax County and have now ruled that the action was in violation. 

“By failing to hold the meetings at which Z-Mod was considered and ultimately adopted in compliance with Virginia Freedom of Information Act open meeting requirements, the Board’s actions prevented the public from participating in the manner required by VFOIA, and thus, potentially limited public participation and input into the process,” reads the opinion by Justice Wesley G. Russell, Jr. 

There was no dissenting opinion. 

For more on the ruling, here are two articles:

• What is necessary? The Virginia Supreme Court weighs in on pandemic-era electronic meetings, Megan Rhyne, Virginia Coalition for Open Government, March 23, 2023
• Fairfax County zoning revamp thrown out by Virginia Supreme Court, citing virtual meeting, Bruce Potter, Inside NOVA, March 23, 2023

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