A day after neighboring Arlington County made waves by ending single-family exclusive zoning, Fairfax County saw its own zoning reforms reversed two years after they were approved.
The Virginia Supreme Court declared the county’s Zoning Ordinance Modification Project (zMOD) void yesterday (Thursday) because the new code was adopted at a mostly virtual meeting — a ruling could have consequences for other actions taken during the first years of the pandemic, as noted by Inside NoVA, which first reported the decision.
The county is now operating under its previous zoning ordinance, which had been in place since 1978, according to the zoning administration division’s website.
“We are currently evaluating the Virginia Supreme Court decision and considering our options,” Tony Castrilli, the county’s director of public affairs, said. “In the meantime, the 1978 Zoning Ordinance is presently in effect and available for reference on the County website.”
In a 29-page opinion, Justice Wesley Russell sided with four residents who argued that the Fairfax County Board of Supervisors violated the Virginia Freedom of Information Act’s open meeting requirements by not holding an in-person public hearing or vote.
The county contended that an ordinance adopted on April 14, 2020 gave it the flexibility to hold public meetings on the zoning update and other subjects electronically during the Covid state of emergency.
The Supreme Court disagreed that the ordinance allowed the county government to conduct all regular business electronically, finding that the zoning update doesn’t qualify as “necessary to ensure the continuation of essential functions and services.”
“The modification of a 40-year-old zoning ordinance after a five-year revision process does not satisfy this standard,” Russell wrote. “It is not a time-sensitive matter, and its adoption is not and was not necessary to allow the County to continue operations.”
The residents behind the lawsuit — David Berry, Carol Hawn, Helen Webb and Adrienne Whyte — filed a complaint in Fairfax County Circuit Court on March 5, 2021 seeking to prevent the board from adopting zMOD at a public hearing on March 9, 2021.
The circuit court denied the request and ultimately dismissed the complaint on Sept. 9, 2021, stating that it had been rendered moot by the adoption of zMOD on March 23, 2021 and that the county board’s emergency powers gave it the authority to act at an electronic meeting. Read More
FCPS Expands FOIA Staffing and Budget — “Fairfax County Public School added half a million dollars in this year’s budget to keep up with public records requests, which have more than tripled since 2016 and gotten broader in scope. The increase comes as the school system finds itself the subject of political vitriol over COVID precautions and racial equity programs, among other issues.” [DCist]
Vermont Senator Falls at McLean Home — “U.S. Sen. Patrick Leahy of Vermont was set to undergo surgery Thursday after he broke his hip in a fall at his home, according to his spokesman. The 82-year-old Democrat fell Wednesday night in McLean, Virginia, a statement Thursday morning said.” [Associated Press]
Dr. Scott Brabrand on Tenure as FCPS Superintendent — “Brabrand, who was hired as superintendent in 2017, concludes his five-year stint Thursday, when Michelle Reid is scheduled to take the oath of office and serve as his successor…His tenure, which aimed at improving diversity among school staff and working to improve student outcomes, was interrupted by a pandemic that Brabrand called — next to school integration — the biggest event to impact public education in its history.” [WTOP]
DOJ Sues to Stop Merger of Tysons and Reston Companies — “The Department of Justice has filed an antitrust lawsuit to block Booz Allen Hamilton Inc.’s proposed acquisition of EverWatch Corp., a Reston cybersecurity contractor…alleging the deal would drive up prices for the government and stifle competition for some work with the National Security Agency.” [Washington Business Journal]
Expansion of Metrobus Student Program Approved — “Students from Annandale High School, Falls Church High School, Marshall High School and the Davis Center will join students at Justice High School in participating in the free student bus pass program using Metrobus. These expanded options for Metrobus will be available for the 2022-2023 school year.” [Patch]
Mantua House Fire Started by Car Engine — Firefighters extinguished a fire that started in the garage of a two-story house in the 3200 block of Barbara Lane on Tuesday (June 28). Started accidentally in a vehicle engine compartment, the fire displaced two residents and caused approximately $182,500 in damages, including the loss of the vehicle. [FCFRD]
County Offers to Help Residents Keep Cool — “Do you need help avoiding the heat this summer? Cooling Assistance is a program designed to help keep vulnerable Fairfax County residents cool during the summer months Applications are now being accepted through August 15.” [Fairfax County Government/Twitter]
It’s Friday — Humid and partly cloudy throughout the day. High of 88 and low of 74. Sunrise at 5:49 am and sunset at 8:39 pm. [Weather.gov]
(Updated at 5 p.m.) A former Fairfax County Public Schools bus driver reportedly slapped a student at Fort Belvoir, according to a Fairfax County court affidavit filed on May 4.
An Army investigation for Fort Belvoir stated that there was probable cause to support allegations that the driver assaulted the student on March 16. According to a special agent, photos from a parent showed apparent bruising on the boy’s cheek and under his left eye.
The U.S. Army Criminal Investigation Division declined to provide further details, including whether any charges have been filed. However, it said its investigation was still “active,” as of Tuesday (May 17).
Virginia banned schools from using corporal punishment in 1989, but it wasn’t immediately clear whether FCPS trains staff on the law.
FCPS refused to answer questions about the incident or its policies. It confirmed that the driver is no longer an employee but didn’t provide any further context on why.
The driver provided a statement to FCPS about the incident, but school officials have refused to release it in response to public records requests.
The district initially claimed the statement — identified as a student behavior incident report — was exempt from the Virginia Freedom of Information Act, which has exclusions for personnel records with personally identifiable information and scholastic records involving identifiable individuals.
FFXnow requested that the record be released in redacted form without the driver’s name, stating that Virginia’s law doesn’t allow an agency to withhold a record in its entirety if there’s an exemption.
An FCPS public records officer then said that the federal Family Educational Rights and Privacy Act also prohibits releasing a record linked to “a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”
Megan Rhyne, director of the nonprofit Virginia Coalition for Open Government, said by email that she believes in general that school districts and higher education systems “overuse the FERPA/scholastic records exemption,” stretching beyond the law’s purpose.
“The way so many interpret it is that ANYthing that has to do with a student or shows their image is off-limits,” she wrote. “We know this isn’t true because if it were, there wouldn’t be graduation programs (complete with dean’s list, cum laude distinction, etc., which touch on their academic record), featured students on district websites, Facebook posts of science fair winners, etc.”
She said the mere mention of a student does not turn an entire record into an exempt one.
“I also see a lot of overuse of the personnel exemption to withhold information on anything an employee does,” she wrote. “Again, this goes too far. The employee may have a zone of privacy around her, but that doesn’t extend to her public-facing work.”
Rhyne stressed that public agencies aren’t required to use the exemptions, and some choose an overly broad interpretation to justify keeping valuable information away from the public, even when the law’s policy statement says to interpret exemptions narrowly.
Virginia law allows a court to resolve disputes about whether a record should be released, but the process can unnecessarily waste public resources and newsroom budgets. Some states have an appeal mechanism for a state agency to handle issues, such as Massachusetts and Pennsylvania.
Rhyne said those remain rare, but Virginia would benefit from an administrative appeal system.
(Updated at 7:05 p.m. on 12/8/2021) The Fairfax County Police Department is about to bring its public records request system a little closer to the 21st century.
Starting early next year, the many people who request Fairfax County police records every year through the Virginia Freedom of Information Act (FOIA) will be able to pay the attached fees online, the county’s FOIA office confirmed to FFXnow.
Currently, the FCPD and nearly all other county departments and agencies require a physical check sent by snail mail for FOIA fees, which cover the costs of labor, copying, and other expenses incurred in the process of obtaining and delivering requested records.
With the new system, records requesters will fill out an online form with their contact information and details about their FOIA request before submitting an electronic check through a secure checkout screen.
“This new process is still being finalized, but we are confident that certain high-volume FOIA agencies (like the FCPD) will be able to collect FOIA fees electronically in early 2022,” Amanda Kastl, the Fairfax County Office of Public Affairs’ countywide FOIA officer, said by email.
The county introduced the online fee portal in August 2020 for the countywide FOIA office, which handles complex requests and ones that involve multiple departments. The office also oversees the overall FOIA process, including standardizing fee collection and processing.
Kastl says her office partnered with the Fairfax County Department of Finance to develop, test, and implement the new system after seeing an increased desire for the ability to pay fees electronically from those requesting records.
The COVID-19 pandemic also played a role, since FOIA staffers were working remotely, which made it harder to process checks.
According to Kastl, the online portal was intended to make the FOIA process simpler and more efficient for both the community and staff, and so far, it has paid off.
“We have received positive feedback from requesters on the convenience and efficiency of submitting payments electronically,” she said.
While online payments are now accepted for everything from grocery shopping to federal taxes, Fairfax County appears to among the vanguard in Northern Virginia when it comes letting people pay FOIA fees electronically. Read More
