At a regular meeting of the Fairfax County Board of Supervisors on April 11, 2023,  the supervisors unanimously adopted  a resolution that “authorizes the advertisement of the proposed Zoning Ordinance to repeal and replace the 1978 Zoning Ordinance and to either repeal the 2021 zMOD Ordinance  or sunset this newly authorized ordinance, as recommended  by staff.”  

The issue is that zMOD Ordinance  which had been in effect since July 1, 2021, is no longer in effect. The Zoning Ordinance in effect as of March 23, 2023, can be found at Zoning Ordinance (June 30, 2021.

On March 23, 2023, the Virginia Supreme Court ruled an opinion in Berry v. Board of Supervisors of Fairfax County that the Fairfax County Zoning “zMOD” Ordinance  (approved April 6, 2021)  was void ab initio “because it was heard and adopted at Board meetings held via electronic means due to the COVID-19 pandemic.”

The ruling created an immediate and startingly collapse of the updated  Ordinance.  The decision of the Court also invalidated the March 23, 2021, repeal of the 1978 Zoning Ordinance and set in motion a  swift series of actions by the county to address concerns.

 “As we all learned during the pandemic, electronic meetings increased public engagement by allowing more people to participate from any location,” said Board of Supervisors Chairman Jeffrey C. McKay” in an earlier statement. “When zMOD was originally approved, 70 speakers participated in the Board of Supervisors public hearing, which was open to the public and broadcast live, as are all public hearings,” McKay said.

The Virginia Supreme Court ruling created uncertainty for the county and others regarding previously approved in-process applications, current and upcoming applications, and proposed zoning ordinance amendments, leaving them in limbo.  Alerting those unfamiliar with the ruling, the county labeled such public hearings on such matters “TBD” online, and they are not being scheduled.

According to the Fairfax County Zoning Ordinance Update & DPD Operating Status alert on April 6, the  Board of Supervisors plans for a  Planning Commission public hearing on zMOD advertised as May 3, 2023, at 7:30 p.m., and the Board of Supervisors public hearing on May 9, 2023, at 4:30 p.m.

In the meantime, the county will petition the Virginia Supreme Court to rehear the case. A motion by Supervisor Kathy Smith (D-Sully) came out of the closed-door session of the April 11 Board of Supervisors meeting. Smith moved that  the Board of Supervisors authorize the county attorney to file a petition for rehearing of the Supreme Court of Virginia in  Berry v. Board of Supervisors of Fairfax County Record Number 211143. With no discussion on the motion, it carried unanimously.

Before the board approved Administrative Items 1-9, Supervisor Pat Herrity (R- Springfield) said he had not been able to find zMOD “anywhere up on the website,”

“I think we ought to give our citizens and everybody a chance to look at it. I know it was pulled down officially,  as it should be, and replaced with the zoning ordinance. But I think the sooner we can get that in front of our constituents and the business community (the better) because it's hard to find a copy of what we're going to be voting on the ninth,” said Herrity. 

McKay said they could do that.

The Virginia Supreme Court ruling addressed the board’s adoption process of zMOD and did not address its content. 

The online county staff report notes the following: “According to the Supreme Court’s opinion, the Board of Supervisors (Board) erred in relying on state legislation adopted at the outset of the COVID-19 pandemic in 2020, that expanded the ability of public bodies statewide (including the General Assembly) to conduct business via electronic meetings. For meetings that met its requirements, the 2020 legislation overrode conflicting open meeting provisions of the Virginia Freedom of Information Act (VFOIA). The Board indisputably met all the legislation’s requirements regarding public notice, access, and legislation

narrowly to exclude consideration and adoption of zMOD. 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 to reconsider the zMOD Ordinance as previously adopted on March 23, 2021.  Since subsequent Zoning Ordinance amendments are not addressed in the opinion, staff recommended that they be included as part of the complete Zoning Ordinance being considered.