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

 

 

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.

. . .

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.

RNGC Press Release: Potential Redevelopment of RNGC

Press Release:

Reston, VA  October 29, 2015 - In January of this year, more than 500 landowners and others concerned about the future of Reston National Golf Course, a Certified Audubon Cooperative Sanctuary Program golf course, rallied at the Board of Zoning Appeals hearing in support of maintaining the 166-acre tract of land as open space.  However, in April the BZA returned a decision that may have eased the path to redevelopment. That decision will be challenged in Fairfax County Circuit Court on Friday, November 6, at 2 p.m.

The outcome of this hearing will affect all properties abutting or near the golf course. Home and business owners stand to lose scenic views, privacy and substantial value and will face years of construction trucks, dirt and noise in their backyards, and worsening congestion on local roads. Our community may lose 166 acres of wildlife habitat and scenic beauty.  All of Reston faces the loss of control over its future.

Lawyers for Fairfax County, Reston Association and individual homeowners and clusters (together, the Home Team) have been preparing an appeal of the BZA’s ruling. Homeowners and clusters that are part of the Home Team are represented by Randy Greehan of Greehan, Taves, Pandak & Stoner, PLLC, the land use law firm that has counseled Rescue Reston since 2012.

The loophole that the original RN Golf land use attorney thought he had found when the investor-owners undertook this battle in 2012 has been closed: Fairfax County has certified all documents. Therefore, if the Home Team wins in Circuit Court in November, the investor-owners of RNGC will have a much harder time achieving their goal of transforming this treasured open space into anything other than recreational open space.

The legal effort to challenge the BZA’s ruling has been substantial and costly.
Right now, the key support required to keep this tract of land green is to help pay the legal bills! The most recent brief filed on behalf of the petitioners can be read at http://www.rescuereston.org/wp-content/uploads/2015/10/10-26-15-Reply-Brief-of-Adjacent-Owners-in-Support-of-Summary-Judgment-Motion.pdf

Many homeowners and other concerned individuals and businesses have already donated this calendar year, but a surge of donations this coming week will send the message that we will not be outdone by the deep pockets of the golf course’s investor-owners, Northwestern Mutual. The end of the legal battle is in sight.

US Supreme Court Declines To Hear Challenge of Toll Road Fees Backing Metrorail Construction to Dulles Airport, Hunton & Williams, October 12, 2015

Hunton and Williams, the law firm representing MWAA, issued the following press release concerning the decision of the Supreme Court not to hear the case brought by Dulles Toll Road users:

On October 5, the US Supreme Court declined to review a ruling upholding the validity of tolls charged by the Metropolitan Washington Airports Authority (MWAA) to motorists who use the Dulles Toll Road. Toll Road revenues provide a significant portion of the $5.7 billion cost of constructing the Silver Line extension of Metrorail to Washington Dulles International Airport — one of the largest public infrastructure projects in the United States.

By denying certiorari, the Supreme Court left undisturbed a January 2014 decision of the US Court of Appeals for the Fourth Circuit affirming the dismissal of a class action lawsuit brought by Dulles Toll Road users. Rejecting the class plaintiffs’ argument that the tolls amounted to an unconstitutional tax, the Fourth Circuit held that the tolls were valid user fees for passage on the Toll Road. That lawsuit was the last of several actions filed since 2007 attacking the Toll Road user fees.

The Supreme Court’s denial of certiorari puts an end to more than eight of years of litigation over the Toll Road fees, leaving a clear path for MWAA to complete the full 23-mile Silver Line Metrorail expansion to Dulles Airport. . . .

Rescue Reston's attorney's inital BZA case documents for the hearing on the RNGC preservation case

   Rescue Reston Legal Appeal to the BZA on the preservation of RNGC

A 1990s Virginia Supreme Court opinion sets a precedent for the BZA NOT to overturn the County Zoning Administrator's decision on preserving Reston National Golf Course.

In a 1992 Reston land use case, the Virginia Supreme Court ruled a decision by a lower court "that a zoning modification could be made administratively and did not require approval by the county board of supervisors is reversed."  In this case, Fairfax County went to court to overturn a decision by its own Board of Zoning Appeals (BZA) that would have permitted Mana Krisnathevin--owner of the land now developed as Sunrise Valley Convenience Center (includes a daycare center, dental offices, jeweler, dry cleaner, bank, and maybe other retail)--to alter the basic County development plan for the area.  In the end, the Supreme Court ruled in favor of the County.  The core of the decision was that the proposed change was "a significant modification" to the Board of Supervisors-approved development plan that required the further approval of the Supervisors, and could not be changed by a BZA administrative decision. 

I think we can all agree that changing a golf course to a housing development is "a significant modification" to the current development plan.  It will likely be an important consideration in preventing the BZA from ruling in favor of Northwestern Mutual's appeal of the County Zoning Administrator's decision to preserve the golf course.  Nonetheless, the Supreme Court ruling does not, per se, preclude subsequent appeals by Northwester Mutual to state courts from altering a development plan.  

In short, we can expect a BZA decision not to allow redevelopment of RNGC to proceed through the state court system, almost certainly to the Virginia Supreme Court.

Our understanding is that both the attorneys for Reston Association and for Rescue Reston have included this case in the filings with the BZA as it considers the Northwestern Mutual appeal of the Zoning Administrator's decision, so there is nothing here that all the appropriate County officials don't know.  We believe, however, that the people of Reston also deserve to be kept well informed in a timely manner on this important ongoing legal matter without digging through legal documents on the County or the RA website where they may be found.  

For your information, below is the full 1992 opinion of the Virginia Supreme Court.  The first page or so provides an overview that may be sufficient for most readers.  

   Krisnathevin v Fairfax County--VA Supreme Court Decision

 

Appeals Court Hears Arguments in Dulles Toll Road Case, Fairfax News, October 2, 2012

Is the Dulles Toll Road toll a toll? Or a tax? And who has jurisdiction to make the decision?

Those are among the questions being pondered by a three-judge panel of the U. S. Court of Appeals for the Federal Circuit in D.C., which today heard arguments from the group called “No Toll Increase.” The group has challenged the legality of using a portion of the tolls collected on the busy commuter highway to fund construction and operation of the Metro Silver Line.

The group’s attorney, Bob Sincar, argued before the panel that, under Virginia law, proceeds from tolls can only be used to fund construction and maintenance of the roads and bridges on which the toll is collected. He also argued that since the Metropolitan Washington Airports Authority (MWAA), which owns the toll road and is building the Silver Line, is not an elected body it does not have the authority to impose a tax. . . .

Click here to read the rest of this article.  

The case is being heard in federal appeals court after having been dismissed by the federal district court. 

Lerner Enterprises sues Fairfax County over north Reston Town Center density, Washington Business Journal, May 14, 2010

UPDATE: The full text of this article is now available here.

UPDATE #2: ...and here is Restonian's take on the Lerner lawsuit, including mourning the loss of the Macaroni Grill.

by Sarah Krouse

A Lerner Enterprises Inc. affiliate is suing Fairfax County over the way the county allots density in the area just north of Reston Town Center.

The entity, Reston Spectrum LLP, filed suit in March in Fairfax County Circuit Court, arguing that it should be able to develop its site to the specifications the county approved in a 2006 conceptual plan.

The Lerner site sits between Route 602 and Fountain Drive and includes retailers such as Harris Teeter, Best Buy and Elizabeth Arden. Lerner wants to transform the 24-acre stretch into as many as 562 residential units and up to 406,000 square feet of retail or office use.

It secured county approval of a finalized conceptual site plan in 2008 using extra density from the neighboring Reston Regional Library, which was deemed a park in 1992, allowing it to transfer density to nearby developers.

Regrettably, the rest of this article is for "paid subscribers only."

Dulles Rail Tax Fight Moves Ahead, NBCWashington, April 25, 2010

VA Supreme Court to hear Fairfax business owner’s plea

The fight to keep the Dulles rail project from hitting the wallets of Fairfax County business owners is moving down the line.

The Virginia Supreme Court will hear a lawsuit filed by a Tysons Corner real estate executive, according to an Associated Press report...

...The basis of FFW Enterprises’ cases is that taxing commercial property owners and not homeowners is a violation of the Constitution. . . .

Click here for the rest of this article.