Potential Restriction on Land Use Approvals by Virginia Local Governments

2 min

Virginia Attorney General Mark Herring recently issued an advisory opinion addressing whether local governments can continue to make legislative decisions through remote meetings during the current pandemic. A copy of the advisory opinion can be downloaded here, and the key points are summarized below.

Given the ongoing COVID-19 pandemic, Virginia Governor Ralph Northam declared a state of emergency on March 12, 2020. In light of this state of emergency, Attorney General Herring essentially makes three determinations in his advisory opinion: (1) Virginia law permits a public body to meet by electronic communication means for the duration of the declared emergency, but only for meetings whose purpose is to address the emergency; (2) Virginia law does not allow local governing bodies to hold meetings solely by electronic communication during the pendency of the emergency; and (3) Virginia law provides authority for localities to ensure the continuity of government during the declared emergency.

The upshot of these determinations is that local governing bodies in Virginia will be able to meet by electronic means only to "make decisions that must be made immediately and where failure to do so could result in irrevocable public harm." Attorney General Herring points out that this will require a fact-specific determination as to whether public business is "truly essential," but local jurisdictions should defer all decisions that can be deferred until the public body can meet in person.

These determinations obviously have the potential to limit the ability of local jurisdictions to approve zoning and land use matters remotely.

Given the limitations outlined in this advisory opinion, the Virginia General Assembly is expected to reconvene in April to consider a variety of measures to address COVID-19 challenges that have arisen for local governing agencies and local jurisdictions' review of land use applications.

If you have any questions about this land use alert or other related land use and real estate development issues, please reach out to Venable's land use team to discuss these matters further.