A Huge Zoning Victory for Fairfax Residents in the Fight to Preserve Our Rights, but Only the Beginning

In a stunning turn of events, the Virginia Supreme Court unanimously ruled yesterday that the Fairfax County Board of Supervisors violated the Virginia Freedom of Information Act (VFOIA) in approving the zMOD zoning ordinance, adding that it was invalid from the outset (“void ab initio”). 

The key reason for overturning the ordinance was that the Board failed to have any public hearings, just video access which the Court found insufficient. The Board’s argument was that it was important to move expeditiously to approve the ordinance, but the Court noted that the county had been working on the ordinance for five years without urgency. 

This is the first case in which the McKay regime has been censured for its arrogant “forget-the-public” approach to county governance.  The theme behind the zMOD initiative was “streamlining” the development approval process by largely eliminating opportunities for public input, in part by making many decisions administrative without public input or official Board involvement. 

No court reversal could be bigger because the Court’s judgment was the only obstacle to developers working the county Department of Planning and Development (DPD) into decisions that would undercut the already limited restrictions on development in the zoning ordinance.  If zMOD had not been reversed, there would be no way to roll back these administrative and other provisions in this Dillon Rule state of irreversible “by right” development.

The state court’s decision raises at least a couple of questions about the impact of policy and development actions taken based on zMOD since the court said zMOD was void from the outset. 

·       What will happen to current Board initiatives that take on zMOD’s “streamlining” flavor?  Maybe first among these is the so-called “Parking Reimagined” draft zoning ordinance that would reduce minimum parking requirements across the county by as much as 40% in high-density areas.  Part of that draft ordinance states that the Director of Planning and Development can approve changes to the minimum requirement administratively in a wide variety of circumstances.

·       What will happen to development approvals given under the new zMOD ordinance since that the ordinance is void from its outset?  What about those projects already built or under construction or in the design and engineering phases? 

We all need to be vigilant to see how the county handles these numerous issues—and doesn’t just make them worse.

Most importantly, what about the substance of zMOD?  The court’s decision focused on the process of approval that failed to meet VFOIA requirements, not the merits of the zMOD zoning ordinance.  At first blush, that means the Board could just take the same draft zoning ordinance and pass it through the proper steps, including a public hearing.  Nonetheless, since “streamlining” is central to zMOD by shifting much decision making from the Board to the staff that would not require public input, zMOD’s provisions could run into the same issues of public access—meaning another court case to preserve citizens’ rights.  To prevent that cost and delay, it is important that the residents of Fairfax keep challenging efforts by the Board to exclude or reduce citizen participation in their own government’s decisions.   

We should all thank the community leaders across the county who took on the task of challenging Jeff McKay’s high-handed Board of Supervisors effort to take our right to be heard away from us, not to mention to actually listen to what we say. 

We need to seal the deal on Fairfax County zoning by preventing a new zMOD V2 and other Board initiatives that also intend to cripple resident participation in our government and make the county less livable.  Unless we remain vigilant and proactive, we are likely to see our county government turn into McKay’s mafia. 

 

Terry Maynard

Reston, VA