Virginia Supreme Court throws out county zMOD zoning ordinance

In a unanimous decision published yesterday, the Virginia Supreme Court threw out Fairfax County's zMOD zoning ordinance intended to "streamline" development project approvals.  The essence of its judgment was that the county's decision process violated VFOIA requirements for opportunities for public input.  Here are some key passages:

The process that led to the ultimate adoption of Z-Mod demonstrates that its adoption was far from time-sensitive. After all, the revision process began in 2016—five years before Z-Mod was adopted and three years before the existence of COVID-19 publicly was known anywhere in the world. This multi-year history of consideration and revision before adoption conclusively demonstrates that there were not hard and fast deadlines, statutorily required or otherwise, that needed to be met. Prior to the Z-Mod revision, the zoning ordinance had existed for four decades and absolutely nothing suggests that Z-Mod needed to be adopted to satisfy due process or other constitutional requirements, protect public safety, or sustain the County’s economy.  Everything about the history of Z-Mod suggests that the adoption of Z-Mod could have waited days, weeks, or months without throwing the County’s operations into even minor distress let alone chaos. Simply put, the consideration and adoption of Z-Mod was not time-sensitive, and thus, acting on it in March 2021 was neither essential nor necessary to allow for the continued operations of Fairfax County government.

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Having concluded that the Board adopted Z-Mod in a manner that violated the open meeting provisions of VFOIA, we turn to the question of remedy. The (Fairfax County) Residents argue that, because “Z-Mod could not be adopted through an electronic meeting[,]” the Board’s purported adoption of Z-Mod was and remains “void ab initio[.]” We agree.

By failing to hold the meetings at which Z-Mod was considered and ultimately adopted in compliance with VFOIA’s 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. As such, the Board’s failure here is analogous to the circumstances in our prior cases in which a zoning ordinance was adopted despite the failure of the locality to provide the statutorily required public notice. In such cases, we have held that such ordinances are void ab initio. See, e.g., Glazebrook, 266 Va. at 557 (holding that certain “zoning ordinances passed pursuant to [defective] notices . . . are void ab initio”); Powell Valley Vill. Ltd. P’ship, 254 Va. at 74 (recognizing that a “[f]ailure to abide by the statutory prescriptions for the adoption of an ordinance renders the ordinance void ab initio”); City Council of City of Alexandria v. Potomac Greens Assocs. P’ship, 245 Va. 371, 378 (1993) (stating that, because the city “failed to give the requisite notices . . . , the TMP Ordinance is void ab initio”). Accordingly, we conclude that the Board’s failure to comply with VFOIA’s open meeting requirements renders Z-Mod void ab initio.