On Monday, Oct. 2, the Supreme Court of Virginia, in Berry v. Board of Supervisors, struck down the Fairfax County Zoning Ordinance Amendment, known as zMod, for the second time. The court denied the Fairfax County Board of Supervisors’ petition for rehearing in the civil case, which was received on March 19, 2023.

The court ruled this spring that the county's approval of zMod, a broad update of zoning, was illegal, rendering it null and void. Fairfax County removed the 2021 zMod ordinance and reinstated the 1978 Zoning Ordinance, which is in effect today. The amendment, zMOD, re-codified the 42-year-old ordinance to adapt it to Fairfax County's changing development environment. The consequence is that rezoning predicated on the 2021 ordinance may be at risk.

The Court concluded in the March case that adopting zMOD at a virtual meeting was unnecessary to assure the continuation of the County’s essential functions and services. Therefore, the meeting was not authorized by any of the exceptions to FOIA’s open meeting requirements. Thus, according to the Court, approval of zMod at the electronic meeting on March 23, 2021, violated the open meeting provisions of the Virginia Freedom of Information Act and the state's enabling legislation, which allowed for specific electronic meetings in response to the pandemic. 

On March 23, 2021, the Board of Supervisors approved the zoning ordinance modernization, which would take effect on July 1, 2021. According to a March 24, 2021, post on the county's NewsCenter, the ordinance "brought zoning into the twenty-first century." (Source:https://www.fairfaxcounty.gov/news/modernized-zoning-ordinance-zmod-approved-effect-july-1-2021)

Jeff McKay, chairman of the Fairfax County Board of Supervisors, did not immediately respond to a request for comment. 

The new zMod Ordinance was a rewrite of the Zoning Ordinance. Among other things, it updated regulations for certain residential uses, such as accessory structures, accessory living units, home-based businesses, and flags. Accessory structures up to 12 feet tall, such as sheds, children's play equipment, and gazebos, were to be located at least five feet from the side and rear lot lines, according to zMOD.

The ordinance eliminated the requirements for age and disability for accessory living units (previously known as accessory dwelling units). It changed the process for interior units from requiring special permit approval to an administrative permit. It modernized home-based business use and allowed customers with special permit approval to do so.

It increased the maximum flagpole height to 25 feet for lots with single-family dwellings or manufactured homes and 60 feet for all other uses, with the option to request a special permit for a higher height. The ordinance stated a three-flag limit per lot. There was no restriction on the size of the flags.

The ramifications of the Court’s second denial could be far-reaching to development and legal communities.  The status of land use decisions, including zoning approvals, site plans, permits, and subdivisions granted under zMod since mid-2021, may be up for reevaluation and at risk. There may be an impact on permitting that resulted from approvals, financing, and contract conditions that relied on or warranted compliance with approved zoning. There is concern about spillover effects in other jurisdictions that granted development approvals through electronic meetings.