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Fairfax County contests Va. Supreme Court ruling on zMOD even with code readopted

The Fairfax County Government Center (file photo)

(Updated at 2:25 p.m.) Fairfax County officials are hoping to clear up a legal kerfuffle over its zoning ordinance, which was readopted last week after getting voided by the Virginia Supreme Court earlier this year.

Before readopting a modernized version of the zoning ordinance — known as zMod — on May 9, the county filed a petition for a rehearing in the Supreme Court case Berry v. Fairfax County Board of Supervisors.

The court struck down the ordinance on March 23 — nearly two years after it first took effect — because it was originally adopted during a virtual meeting and therefore violated the Virginia Freedom of Information Act.

The court argued that the county’s state of emergency rules for Covid only allowed virtual meetings on issues “necessary to ensure the continuation of essential functions and services,” which it said didn’t include updating a document last overhauled in the 1970s.

Most residents testifying at an in-person public hearing on zMOD’s readoption last week opposed the update.

Even though zMOD has now been reinstated, the county confirmed to FFXnow that it’s still pursuing the request for a rehearing in the Berry case.

“The Berry opinion was broadly framed and has potential implications that reach beyond zMOD,” a county spokesperson said. “The decision affects numerous localities, among many other public bodies, across the Commonwealth who conducted electronic meetings in good faith reliance on the relevant state legislation to protect their residents during the pandemic.”

The petition argued that the Supreme Court’s opinion not only raised questions about close to two years of zoning actions, but also forced “every public body in the Commonwealth that met electronically during the pandemic…to examine its actions and speculate whether this Court would deem them ‘time-sensitive.'”

In the filing, the county argued that the board acted in “good faith” by holding virtual public meetings in the midst of the pandemic, and they were consistent with Virginia’s limits on public gatherings at the time, which had dropped to 10 people when the board authorized public hearings on zMOD in December 2020.

The county also argues that voiding zMod “casts doubt on years of pandemic-era decisions made in good faith reliance on the budget language.”

Walsh Colluci Lubeley & Walsh, a prominent law firm in the area that handles many Fairfax County land use applications, has also filed two amicus briefs on behalf of the Home Builders of Virginia, the Virginia Association for Commercial Real Estate and the Virginia Land Title Association.

They argue that the Supreme Court’s decision has “already had a significant adverse effect on local governments and private sector entities statewide.”

“The court’s reasoning has cast a cloud over a vast number of land use approvals and permits, not just in Fairfax County but throughout the Commonwealth,” one filing states, adding that “the number of applications potentially impacted by the court’s decision cannot be understated.”

The court could rehear the case if any of the seven justices determine there is good cause.

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