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Virginia court ruling on virtual board meetings worries local officials

The Fairfax County Government Center. (Calla Kessler/The Washington Post)
4 min

A Virginia Supreme Court ruling this week voided a Fairfax County zoning ordinance update that the county approved in 2021 because it occurred during a virtual meeting and not in person — and officials were trying to determine Friday if the ruling will also affect other virtual pandemic-era votes in other localities.

In a ruling Thursday, the Supreme Court said Fairfax County’s Board of Supervisors had violated the state’s Freedom of Information Act by approving the zoning ordinance overhaul virtually instead of in person because the matter did not fall under essential operations covered by a county “continuity ordinance” passed during the early days of the pandemic.

That emergency ordinance applied to meetings about the county’s response to the pandemic, public safety or the county’s budget, and not less urgent matters that could be dealt with later in person with residents present, the court said.

Because Fairfax’s vote on the zoning overhaul occurred in March 2021, it also was not covered by a state law passed in July of that year that extended the period of time local governing bodies could use such continuity ordinances — from six months to one year, the court said. Fairfax adopted its emergency ordinance in May 2020.

The decision came after a group of Fairfax residents filed a county circuit court challenge to the legality of the zoning update that, among other things, made it easier for homeowners to rent their converted basements. The circuit court dismissed the residents’ claims, prompting their appeal to the Supreme Court.

“Everything about the history of Z-Mod suggests that the adoption of Z-Mod could have waited 22 days, weeks, or months without throwing the County’s operations into even minor distress let alone chaos,” the Supreme Court’s ruling said, using the county’s abbreviation for the zoning overhaul.

On Friday, officials in Fairfax and other local jurisdictions in Virginia were working to figure out the ruling’s broader implications, poring over the archives of their virtual meetings to see if any decisions their boards made could be similarly challenged.

“We are currently evaluating the Virginia Supreme Court decision and considering our options,” Fairfax County spokesman Tony Castrilli said in a statement.

A spokesperson from neighboring Arlington County said: “We are aware of the Fairfax case and are in the process of reviewing our minutes and actions to evaluate the extent of this case’s impact.”

Officials in Loudoun County said they aren’t likely to be affected because they had a different “continuity ordinance” than Fairfax’s. Prince William Board of County Supervisors Chair Ann B. Wheeler (D-At Large) said her board never met virtually.

The ruling also isn’t likely to affect any decisions made in virtual meetings by the General Assembly, which operates under different transparency standards, several state lawmakers said.

With worries over possible coronavirus infections high before vaccines were widely available, governing bodies across the state turned to Zoom and other virtual meeting formats during the early part of the pandemic to keep their governments functioning.

In some cases, that adaptation may have left out residents who would have otherwise weighed in on local issues in person, said Megan H. Rhyne, director of the Virginia Coalition for Open Government, a group that advocates government transparency.

For local officials, “it was uncharted territory; they were trying to figure things out in a very compressed time and had to deal with what existing law did or didn’t say,” Rhyne said.

Even so, other states briefly relaxed their open records laws during the pandemic, particularly the response times to public records requests, while Virginia did not, she said.

Rhyne said the effect of the court ruling could simply mean any decisions made during virtual meetings that are challenged would have to be revisited in person, including Fairfax County’s zoning update.

“It would mean that there are a whole lot of procedural headaches of trying to address any challenges,” she said, predicting that the bulk of those challenges would be related to land-use cases, which tend to attract more opposition from affected residents. “But whether it actually affects policy, I think, is very speculative.”

Castrilli did not say whether Fairfax County will try to re-implement the changes to its zoning ordinance, the first such overhaul since 1978.

Some portions of the revised ordinance were already targeted for amendments after residents expressed concerns about changes made to off-street parking requirements, outdoor lighting standards and other aspects of life in the county.

For now, Castrilli said in his statement, “the 1978 Ordinance is presently in effect and available for reference on the County website.”