The Supreme Court reversed the circuit court's dismissal of residents' claims against Fairfax County's Board of Supervisors and held that the circuit court erred. The result of the decision is the former 1200-page 1978 Zoning Ordinance is reinstated by the county.
The decision noted that:
Fairfax County residents David Berry, Carol A. Hawn, Helen H. Webb, and Adrienne A. Whyte (collectively "Residents") filed the case Berry v. Board of Supervisors in 2021. The Residents claimed that the Board violated Virginia law by considering and voting on zMOD in an electronic meeting and that any action or approval should be void.
The Great Falls Citizens Association (GFCA) released a statement on Tuesday, March 28, noting that the Board of Supervisors adopted zMOD on March 23, 2021, during COVID-19, when Virginia law authorized the county to operate during emergencies and perform essential services related to "continuity of government operations."
"Ultimately, the Supreme Court disagreed and concluded that the board’s failure to comply with Virginia’s Freedom of Information Act’s (VFOIA) open meeting requirements rendered zMOD void ab initio."
GFCA says, "zMOD has been controversial from the start. It quickly expanded well beyond its original stated purposes to provide what zoning officials described as much-needed reformatting and restructuring; a more user-friendly, more readable, and a more up-to-date framework of zoning." GFCA says Fairfax County must react to the Court's decision and consider its practical and policy implications. Consequently, the GFCA will closely monitor the process as it develops.”
“ZMOD became effective on July 1, 2021 and applied to all zoning approvals or amendments (i.e., rezonings including subsidiary plans, special exceptions, special permits, variances, modifications and waivers) approved by the Board, the Planning Commission or the Board of Zoning Appeals after that time,” said law firm Bean, Kinney and Korman on its “About Real Estate” blog. “The Court’s decision leaves the County residents, property owners, developers and lenders suddenly facing a very uncertain land use regulatory landscape. … This calls into question the validity of all of the zoning actions … which were approved or amended since July 1, 2021.”