Zoning ordinance adopted via electronic meeting is invalid

Where county supervisors adopted an updated zoning ordinance via an electronic meeting, Fairfax County resident taxpayers correctly argued that this violated the Virginia Freedom of Information Act.

Although the act authorizes electronic meetings when the governor declares an emergency which makes it unsafe to “assemble a quorum in a single location,” such as the COVID-19 emergency, the purpose of the meeting must be to address the emergency.

“It is undisputed that the Board did not consider and adopt Z-Mod [the updated zoning ordinance] to address the COVID-19 emergency.”

The circuit court is reversed.

Prior proceedings

“[R]esident taxpayers of Fairfax County (collectively ‘Residents’), appeal the circuit court’s decision dismissing their claims against the Board of Supervisors of Fairfax County.

“In the proceedings below, the Residents sought declaratory relief and to enjoin the Board from adopting an updated zoning ordinance (‘Z-Mod’) via electronic meeting.

“Alternatively, if their request for preliminary relief was denied and the Board adopted Z-Mod via electronic meeting, the Residents sought a declaration ‘that any such action or approval by the [Board] concerning Z-Mod is not permitted by Virginia law during the pandemic emergency and, hence, is void ab initio and of no continuing force or effect.’

“The circuit court denied the requested relief, finding that the Residents’ claims were moot, that a portion of the Residents’ declaratory judgment action also was unripe, and that the Board had the authority to adopt Z-Mod in an electronic meeting. The Residents appealed to this Court[.]”

Mootness

“An action that involves a live controversy at its inception may become moot during the course of litigation. For example, changing events during litigation may make it impossible for a court to award a litigant the relief requested.

“A case is moot if the relief requested by a litigant can no longer be granted.”

Some of the residents’ claimed relief – an injunction to prevent the board from adopting Z-Mod – was moot because by the time the circuit court entered its final order, the board had already adopted Z-Mod.

“The fact that some of the Residents’ requested relief had been mooted by events did not render moot the Residents’ suit in total.

“After all, the gravamen of the complaint – that the Board lacked the authority to adopt a revised zoning ordinance in an electronic meeting – remained a live question, and the Residents had requested relief – a declaration that the Board lacked such authority and that Z-Mod was void ab initio – that the circuit court could still award.

“In short, although the claims seeking to enjoin the consideration and adoption of Z-Mod were moot, the underlying claim as to the Board’s authority was very much alive.”

Ripeness

“Whereas mootness addresses a once viable claim that has lost its viability, the concept of ripeness applies to claims that, while potentially viable at some point in the future, have yet to mature into a justiciable controversy – that is, an actual controversy between the parties that is not based solely on speculation or purely hypothetical scenarios that may (or may not) occur at some undefined point in the future. …

“[T]he Residents’ complaint was based on much more than mere speculation or purely hypothetical scenarios. In required public notices, the Board made it known that it was planning to consider and adopt Z-Mod in an electronic meeting, and it did in fact do so.

“The Residents’ complaint that the Board lacked the authority to do so rested on the situation as it existed and did not depend on future events unfolding in a particular way.

“In this sense, the complaint was ripe because it presented the circuit court with ‘specific adverse claims, based upon present rather than future or speculative facts[.]’ …

“The central premise of the Board’s argument and the circuit court’s conclusion that Code § 15.2-2285(F) required the dismissal of the Residents’ complaint as premature is the assumption that the phrase ‘within thirty days of the decision’ necessarily means ‘within thirty days after’ the decision. …

“Absent the circuit court effectively adding ‘after’ to the statute, the Residents’ complaint, which was filed eighteen days before the adoption of Z-Mod, literally was filed within thirty days of the Board’s decision to adopt Z-Mod as required by the statute.”

Electronic meeting

“[T]he Board enacted emergency procedures [a continuity of government ordinance] to deal with exigent business when an emergency made following normal procedures impossible or nearly so.

“Nothing about that context suggests that the Continuity Ordinance should shield all of the Board’s ordinary, non-time-sensitive business from VFOIA‘s requirement of open government.

“The process that led to the ultimate adoption of Z-Mod demonstrates that its adoption was far from time-sensitive. After all, the revision process began in 2016 – five years before Z-Mod was adopted and three years before the existence of COVID-19 publicly was known anywhere in the world.

“This multi-year history of consideration and revision before adoption conclusively demonstrates that there were not hard and fast deadlines, statutorily required or otherwise, that needed to be met.

“Prior to the Z-Mod revision, the zoning ordinance had existed for four decades and absolutely nothing suggests that Z-Mod needed to be adopted to satisfy due process or other constitutional requirements, protect public safety, or sustain the County’s economy.

“Everything about the history of Z-Mod suggests that the adoption of Z-Mod could have waited days, weeks, or months without throwing the County’s operations into even minor distress let alone chaos.

“Simply put, the consideration and adoption of Z-Mod was not time-sensitive, and thus, acting on it in March 2021 was neither essential nor necessary to allow for the continued operations of Fairfax County government.”

Conclusion

“VFOIA’s open meeting requirements applied to meetings at which the Board considered and ultimately adopted Z-Mod, and thus, the circuit court erred in dismissing the Residents’ complaint.

“Accordingly, we reverse the judgment of the circuit court and enter final judgment for the Residents, declaring Z-Mod void ab initio.”

Reversed and final judgment.

Berry, et al v. Board of Supervisors of Fairfax County, Record No. 21143; (Russell Jr.) March 23, 2023. From the Circuit Court of Fairfax County (Oblon, dismissal; Tran, preliminary injunction). Craig J. Blakeley (Alliance Law Group, on briefs), for appellants. T. David Stoner, Deputy County Attorney (Elizabeth D. Teare, County Attorney; Cynthia A. Bailey, Deputy County Attorney; Laura S. Gori, Senior Assistant County Attorney, on brief), for appellee. Amici Curiae: Local Government Attorneys of Virginia, Inc., Virginia Association of Counties, and Virginia Municipal League (Sharon E. Pandak; J. Patrick Taves; Pandak & Taves, on brief), in support of appellee. VLW 023-6-006, 29 pp.