Local Government Approvals Without Elected Officials In The Room Need Another Look — Fairfax Vote during COVID Voided

03.29.2023

On Thursday, the Virginia Supreme Court (the “Court”) released a decision in Berry v. Board of Supervisors of Fairfax County that rendered Fairfax’s new zoning ordinance void. Fairfax’s zoning ordinance now reverts to the 1978 ordinance that was last used in March of 2021. This decision has implications for approvals by local governing bodies that did not meet in person from March 2020 to June 30, 2021. If developing under a zoning approval issued by a local governing body that was not in person for the vote, please reach out to the Hirschler land use team to discuss further or reach out to your attorney. 

The Board of Supervisors of Fairfax County (the “Board”) adopted their new zoning ordinance in March of 2021 under the Board’s COVID continuity of government ordinance (“Continuity Ordinance”). The Board’s vote approving the new zoning ordinance was the culmination of a five year process that started a couple of years before COVID appeared. The Board’s vote on the new zoning ordinance was held electronically. No Supervisors were in the meeting room. As a result, the in-person quorum requirement in the Virginia Freedom of Information Act (“VFOIA”) was not met at the time of the vote. The Board argued to the Court that the Board’s Continuity Ordinance took precedence over the VFOIA requirement for an in-person quorum. 

The Court disagreed with the Board. The Court noted that the Continuity Ordinance required compliance with the VFOIA meeting requirements and lacked a direct statement saying the in-person quorum requirement was not applicable. The Court also noted that the Continuity Ordinance only covered “necessary” actions by the Board. The Court reasoned that “necessary” actions were Board votes where the law imposed a time period or deadline for action by the Board. The Court found that replacing the old zoning ordinance with a new ordinance was not a “necessary” governmental act and could have waited until the emergency conditions subsided or until the law was changed by the General Assembly (as the General Assembly did do effective July 1, 2021). 

Importantly, the Court specifically said that the Court did not consider the validity of zoning case approvals granted by local governing bodies not meeting in person. However, Fairfax will have to address how to re-adopt the new zoning ordinance and how to address zoning cases the Board approved after March of 2021. Feel free to contact Matt Roberts with questions related to zoning actions in Fairfax or other Northern Virginia localities. 

In the Fredericksburg region, most localities met in person during the COVID emergency period with the exception of the City of Fredericksburg. Feel free to contact Charlie Payne with questions related to zoning actions in the Fredericksburg area.

In the Richmond region, most localities met in person during the COVID emergency period with the exception of the City of Richmond. Feel free to contact Jeff Geiger with questions related to zoning actions in the Richmond area.