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Board of Supervisors will give zoning overhaul another go after code struck down by Virginia courts

In front of the Fairfax County Government Center (staff photo by Angela Woolsey)

The Fairfax County Board of Supervisors is going to take a second stab at its ambitious Zoning Ordinance Modernization Project (zMOD) after Virginia’s Supreme Court struck down the prior approval.

The county’s zMOD overhaul involved a variety of sweeping changes to the zoning ordinance, from loosening limits on accessory dwelling units to changes in regulations governing flags and flagpoles.

Unfortunately for the Board of Supervisors, the Virginia Supreme Court voided the 2021 approval of zMOD because the meeting where it was approved and prior public hearings were held virtually, which it said violated the county’s Virginia Freedom of Information Act requirements.

The ruling raised questions about development and land use decisions made in the wake of the zoning code update, though Virginia passed a new law last year that loosened restrictions on virtual public meetings.

Tomorrow (Tuesday), the board is set to start the public hearing process to give zMOD approval another go. An administrative item at the board’s meeting for tomorrow would grant “authorization to advertise public hearings on the readoption of the zoning ordinance.”

According to the docket:

If the Board’s 2021 adoption of the zMOD Ordinance was void, so was the contemporaneous repeal of the 1978 Zoning Ordinance (as amended), leaving that earlier Ordinance still in effect. As a result, new public hearings are required for reconsideration of the zMOD Ordinance as previously adopted on March 23, 2021. And while subsequent Zoning Ordinance amendments are not addressed in the opinion, staff recommends that they be included as part of the complete Zoning Ordinance being considered.

Unsurprisingly, the county executive is recommending that the board authorize advertisement of public hearings for an ordinance it already approved in a 7-3 vote on March 23, 2021.

If the advertisement of public hearings is approved, those will come at the May 3 Planning Commission meeting and the May 9 Board of Supervisors meeting, meaning zMOD could be reapproved less than two months after the original approval was struck down.

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