Last Thursday, the Supreme Court of Virginia, in Berry v. Board of Supervisors, struck down the Fairfax County Zoning Ordinance Amendment, familiarly known as zMod, which had been in effect since July 1, 2021. The Supreme Court found that the approval of zMod at an electronic meeting on March 23, 2021 violated the open meeting provisions of the Virginia Freedom of Information Act, as well as the state's enabling legislation that allowed for certain electronic meetings in response to the pandemic. The State Supreme Court determined that, under these circumstances, the action taken by the county in approving zMod was unlawful, and, therefore, it is now deemed void.
Consequently, zMod has been stricken from the Fairfax County ordinance, and the prior Zoning Ordinance, as it existed before July 1, 2021, is now in effect.
As many in the development community are aware, zMod represented a comprehensive overhaul of the prior Zoning Ordinance. In addition to streamlining, consolidating, and re-codifying the ordinance, it also provided enhancements that served to modernize the ordinance and adapt it the evolving development environment in Fairfax County.
The implications of this decision are potentially far-reaching. First, the status of zoning approvals (i.e., rezonings, special exceptions, special permits, etc.) pursuant to zMod within the last two years is uncertain. Second, the decision may equally impact downstream permitting that stemmed from those approvals, as well as financing and contract conditions that either relied upon or warranted compliance with the approved zoning. Third, there is concern for spillover effects in other jurisdictions that granted development approvals via electronic meetings.
At present, discussions are taking place to address the ramifications of this decision, and stakeholders in both the private and public sectors are actively engaged in efforts to find solutions. Given this uncertainty, land use and real estate attorneys at Venable are available to assist with any questions and concerns regarding this decision.