Virginia Supreme Court throws out Z-Mod
The Virginia Supreme Court ruled on March 23 that Z-Mod, Fairfax County’s overhaul and modernization of the Zoning Ordinance, is void.
According to the opinion by Justice Wesley Russell Jr., the Board of Supervisors “adopted Z-Mod in a manner that violated the open meeting provisions of VFOIA” [the Virginia Freedom of Information Act].
As a result, the 29-page opinion states, “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.”
When it was proposed, Z-Mod drew widespread opposition from the public, especially around proposals to make it easier for homeowners to create accessory living units and home-based businesses.
The suit was filed by Fairfax County residents David Berry, Carol Hawn, Helen Webb, and Adrienne Whyte against the Board of Supervisors.
The state Supreme Court ruling overturns a decision by the Fairfax County Circuit Court that dismissed the residents’ complaint.
In 2021, the General Assembly revised VFOIA in response to the Covid pandemic to allow boards of supervisors to conduct meetings “by electronic communication means without a quorum of the public body physically assembled at one location” during declared emergencies.
Related story: Board of Supervisors approves zMOD
The Supreme Court ruling notes that provision became effective after the Fairfax County Board of Supervisors began the Z-Mod overhaul.
“Accordingly,” the court states, “we conclude that the Board’s failure to comply with VFOIA’s open meeting requirements renders Z-Mod void ab initio” [from the beginning]. “Thus, the circuit court erred in dismissing the Residents’ complaint.”
VFOIA was adopted to ensure the people of the commonwealth have “free entry to meetings of public bodies wherein the business of the people is being conducted,” the Supreme Court ruling states. “The affairs of government are not intended to be conducted in an atmosphere of secrecy.”
The suit filed by the residents alleged the board lacked the authority under Virginia law to consider and vote on Z-Mod in an electronic meeting.
The residents filed a complaint seeking to enjoin the board from adopting Z-Mod at an electronic public hearing which was scheduled for March 9, 2021. The circuit court ruled on March 12, 2021, that the board had the authority to proceed with Z-Mod in an electronic meeting.
The BoS voted to adopt Z-Mod during a virtual meeting on March 23, 2021. The circuit court dismissed the residents’ complaint on Sept. 9, 2021.
State law allows public bodies to meet by electronic communication without a quorum present in a physical location during a state of emergency declared by the governor when “the purpose of the meeting is to address the emergency.” The Supreme Court found that was not the case regarding Z-Mod.
“Z-Mod was not undertaken to address the Covid-19 emergency,” the opinion states, as Fairfax County began the process of updating the zoning ordinance in 2016, years before the pandemic.
The Board of Supervisors agreed that Z-Mod was not adopted to address the Covid emergency, but that it was necessary to approve Z-Mod during an electronic meeting to ensure continuity in government in accordance with a continuity ordinance it had previously adopted.
The Supreme Court disagreed that Z-Mod met the circumstances required for the continuation of government, such as public safety, contracts, due process, and measures to sustain the economy.
“The process that led to the ultimate adoption of Z-Mod demonstrates that its adoption was far from time-sensitive,” the ruling states, “There were no hard and fast deadlines, statutorily required or otherwise, that needed to be met.”
“Everything about the history of Z-Mod suggests that the adoption of Z-Mod could have waited 22 days, weeks, or months without throwing the county’s operations into even minor distress let alone chaos,” the ruling concludes.
This is amazing and wonderful. Finally government officials are being forced by the Virginia Supreme Court to have to listen to residents! Thank you, thank you to the residents (David Berry, Carol Hawn, Helen Webb, and Adrienne Whyte) who filed this case to the Supreme Court, and to their amazing lawyers (Craig Blakely and Kathleen McDermott, Alliance Law Group) who successfully argued this case before the state Supreme Court. This is an unbelievable win for Fairfax County residents. The Board of Supervisors cannot just ram through zoning changes that they want without their constituents approval. Cheers!!!!
What a bunch of NIMBY losers. Do people not have jobs, families, and other things to occupy their time?
The losers here are the BoS, developers, and contractors that stood to have illegitimate & illegal profits due to the now stricken zoning. Again, one-party dominance leads to bad decisions- regardless of which party is in power. It is precisely due to jobs, families, and community engagement that good people found a path to correct the corruption of Fairfax county BoS and cabal of special interest. Resorting to name calling (“losers” & inaccurately “NIMBY”) shows everyone your personal interests are with those that supported the illegal actions and speaks to your views on the community.
I look forward to the BOS holding a public engagement session and passing zMod as it was written in an in-person hearing.
The power-grab by the Board in passing that massive overhaul of the County’s zoning ordinance during the pandemic was outrageous. That ordinance stripped residents of the ability to participate in significant zoning matters within their neighborhoods. Residents urged delay to the Planning Commission and the Board, but were ignored.
This is good news. Z-Mod was nothing more than a thinly disguised attempt to destroy single-family housing. I applaud the county residents who filed this lawsuit. I hope the Board of Supervisors will start listening to the voters for a change.
Bravo !!!! We owe the parties a huge thank you!! Sad that lawsuits are the only way to address crummy county leadership. Didn’t the BoS see this coming?
While this was a procedural decision, not a decision on merit, it is a big win for democracy. We elected this group of supervisors who rammed through a major change during a pandemic when people were told to stay home, call in, or submit virtual testimony. Citizens were not able to react, engage, visit their supervisor, or generally have meaningful input. But they will try it again. If you want to learn where it came from please check out this document where developers told the county how to restructure to accommodate more profit for them to encourage rapid growth: https://www.fairfaxcounty.gov/landdevelopment/sites/landdevelopment/files/assets/documents/pdf/nvbia/fairfax-vision-and-recommendations.pdf
And restructure they did, hiring the wonderful revitalization chief because of her stellar record of revitalizing Annandale. And now she sits right next the Board Chair advising him on how to get it done. Well, this fiasco has cost this county lots of tax dollars and that will continue as they try to get it all passed again. Is this a valid accomplishment they earned their raises on? Changing the concept of “stakeholder” to “beneficiaries of the changes” and ignoring the experts who could have helped craft this to consider consequences of the proposed changes and diminishing everyone who raised a question as a NIMBY proves how arrogant this Board is. For the record, I am actually pro redevelopment and pro good development, not development for the sake of the developers. New development needs to fit into the comprehensive plan and the community needs to benefit too.
Hear Hear all ye good people – Not Sure, Original Publius, Cntyres 1, and Speaking for trees!!
Unfortunately the single-hearing do-over (May 3, 7:30pm Planning Commission, May 9, 4:30pm BOS) represents a failed democracy. They never even disclosed until recently that data centers are built by-right in zMOD – forget about all the studies detailing the impacts of excessive electrical usage, massive water consumption, air pollution, noise, etc. – and forget about any input for the adjacent neighborhoods and parkland that will be affected. The BOS does not want the citizens to weigh in about that now – or ever.