On March 23, 2021, the Fairfax County Board of Supervisors (the “Board”) approved a comprehensive update and modernization – the “Zoning Ordinance Modernization Project (“ZMOD”) – of the County’s Zoning Ordinance. At that time, the Board was utilizing special electronic meeting rules so that it could conduct public business necessary to continuation of government during the COVID-19 Emergency (these meeting rules were subsequently amended). 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. 

Exactly two years later, on March 23, 2023, the Supreme Court of Virginia, in Berry v. The Board of Supervisors of Fairfax County, issued a ruling striking down the Board’s approval of ZMOD “ab initio” (from the beginning) as beyond the Board’s power under the specialized meeting rules, reasoning that it was not necessary to permit for the continuation of government. Accordingly, the previously-valid 1978 Zoning Ordinance (as amended through 2021) (the “1978 Ordinance”) would seem to be back in effect.

The Court’s decision leaves the County residents, property owners, developers and lenders suddenly facing a very uncertain land use regulatory landscape. Because the Court declared the ZMOD to be void ab initio, this calls into question the validity of all of the zoning actions listed above which were approved or amended since July 1, 2021 and any derivative site plan and permitting approvals. For lenders, it calls into question the validity and worth of their security interests in those properties. Those parties with active cases currently under review now face the twin challenges of whether they can reposition their proposal to fit within the provisions of the 1978 Ordinance or to wait for a new legislative solution and how this decision will impact hearing schedules going forward. Lastly, for those parties contemplating future plans for their properties, now would be a good time to confer with their land use counsel on next steps and anticipated timing. 

Attorneys at Bean, Kinney & Korman are following the impact of the Court’s decision closely. Please contact us at 703.525.4000 to discuss any questions or concerns you might have.

This article is for informational purposes only and does not contain or convey legal advice. Any views or opinions expressed herein are those of the authors and are not necessarily the views of the firm or any client of the firm.