Berry v. Bd. of Supervisors of Fairfax Cnty.
| Docket Number | Record No. 211143 |
| Decision Date | 23 March 2023 |
| Citation | 884 S.E.2d 515 |
| Parties | David BERRY, et al. v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY |
| Court | Virginia Supreme Court |
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.
PRESENT: All the Justices
OPINION BY JUSTICE WESLEY G. RUSSELL, JR.
David Berry, Carol A. Hawn, Helen H. Webb, and Adrienne A. Whyte, resident 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, and, for the following reasons, we reverse the judgment of the circuit court.
In 2016, Fairfax County began a process to update and modernize its existing zoning ordinance, which had been adopted in 1978. The new ordinance was meant to replace the old zoning ordinance in its entirety. Because the project involved editorial and substantive changes which required "[e]xtensive public outreach[,]" the process continued into late 2020.
Earlier that year, the COVID-19 pandemic emerged, prompting the Governor to declare a state of emergency pursuant to Code § 44-146.17. The General Assembly likewise addressed the pandemic in its 2020 budget bills, authorizing public bodies to meet electronically to address certain matters during a state emergency. See 2020 Acts ch. 1283 § 4-0.01(g) (Reg. Sess.); 2020 Acts ch. 56 § 4-0.01(g) (Spec. Sess. I). In response to the pandemic, the Board adopted a continuity ordinance, pursuant to Code § 15.2-1413, establishing procedures for meeting electronically during the pandemic emergency in order to assure continuity in government by allowing the Board "to conduct necessary public business[.]"2 The state of emergency remained in effect throughout the critical events of this case.
On January 28, 2021, Fairfax County's Planning Commission held an electronic public hearing concerning Z-Mod. On that date, the Planning Commission did not vote on whether to recommend adoption of Z-Mod to the Board but, rather, deferred its decision.
Ultimately, on March 3, 2021, the Planning Commission voted to recommend that the Board adopt Z-Mod.
Two days later, citing the open meeting provisions of the Virginia Freedom of Information Act ("VFOIA"), Code § 2.2-3700 et seq. , the Residents filed a "Verified Complaint for Declaratory Judgment and Temporary/Preliminary and Permanent Injunctive Relief," seeking to enjoin the Board from adopting Z-Mod at an electronic public hearing which was scheduled for March 9, 2021. The Residents alleged that the Board lacked the authority under Virginia law to consider and vote on Z-Mod in an electronic meeting,3 and, as such, any resulting action or approval concerning Z-Mod should be declared void ab initio.
On the afternoon of March 9, 2021, prior to the Board's scheduled electronic meeting, the circuit court held an emergency hearing at which it denied the Residents’ motion for temporary/preliminary injunction in a ruling from the bench. At the electronic meeting later that day, the Board considered the adoption of Z-Mod, deferring its ultimate decision until later in the month. The circuit court issued its written decision on March 12, 2021, reaffirming that the Board had authority under Code § 15.2-1413 and the General Assembly's budget bills to consider and adopt Z-Mod at an electronic meeting.
On March 22, 2021, the day before the Board's next-scheduled electronic meeting, the Residents filed objections to and a "Motion for Reconsideration" of the circuit court's order. The next day, the Board met electronically and voted to adopt Z-Mod. On May 4, 2021, the circuit court issued an order denying the Residents’ March 22, 2021 Motion for Reconsideration.
Shortly after it adopted Z-Mod in March 2021, the Board filed a demurrer to the complaint, seeking dismissal of the Residents’ complaint. The circuit court sustained the Board's demurrer in a ruling from the bench and entered its final order dismissing the complaint on September 9, 2021. As for its reasoning, the order incorporated the circuit court's "reasons stated from the bench and reflected in the ... transcripts[.]" The circuit court concluded that Residents’ requests for injunctive relief had been "denied, decided, and are now moot[.]" Specifically, the circuit court had already denied the Residents’ request for a preliminary injunction to prevent the Board from proceeding with the amendment process electronically. Similarly, the circuit court found the Residents’ request for a permanent injunction to prevent the Board from proceeding with the amendment process electronically also was moot because the Board had already met and passed Z-Mod electronically.
The circuit court further found that the Residents’ remaining request for relief—a declaration that the adoption of Z-Mod at an electronic meeting rendered it void ab initio —had been mooted by the Board's adoption of Z-Mod. Specifically, the circuit court found that the Residents’ right to challenge the adoption of Z-Mod "had already matured" because of the Board's adoption of Z-Mod, and thus, the Residents’ declaratory judgment action was no longer viable because " ‘where claims and rights asserted have fully matured and the alleged wrongs have already been suffered, a declaratory judgment proceeding, which is intended to permit the declaration of rights before they mature, is not an available remedy.’ " (Citation omitted). The circuit court also concluded that the Residents’ challenge was premature under Code § 15.2-2285(F) and had to be asserted in a suit filed after adoption of Z-Mod. In essence, the circuit court found that the claim simultaneously was both moot and unripe.
As an additional ground for its decision, the circuit court concluded that the Board had the authority to hear and act on Z-Mod by electronic means because "[z]oning is inherently an essential act of local government[,] ... critical, especially in the context of a national emergency and state emergency because civility between neighbors is the foundation of domestic tranquility." From this premise, the circuit court concluded that the various emergency power statutes relied upon by the Board allowed it to adopt Z-Mod in an electronic meeting.
The Residents noted an appeal to this Court, advancing three principal assignments of error. The first two assignments of error address the circuit court's procedural rulings, arguing that the Residents’ request for a declaratory ruling that the Board lacked authority to adopt Z-Mod electronically was neither moot nor a premature appeal. The third assignment of error maintains that the Board had no legal authority to adopt Z-Mod in an electronic meeting that violated the open meeting requirements of VFOIA. We granted the Residents’ petition to address these issues.
Whether a locality has the power to act is a question of law subject to de novo review in this Court. Dumfries-Triangle Rescue Squad, Inc. v. Bd. of Cnty. Supervisors , 299 Va. 226, 233, 849 S.E.2d 117 (2020). Issues related to the interpretation of statutes and ordinances also are questions of law subject to de novo review. See , e.g. , Cole v. Smyth Cnty. Bd. of Supervisors , 298 Va. 625, 635-36, 842 S.E.2d 389 (2020) (statutory interpretation); Alexandria City Council v. Mirant Potomac River, LLC , 273 Va. 448, 455, 643 S.E.2d 203 (2007) ().
When interpreting a statute or ordinance, "our primary objective is ‘to ascertain and give effect to legislative intent,’ as expressed by the language used in the statute." Cuccinelli v. Rector & Visitors of the Univ. of Va. , 283 Va. 420, 425, 722 S.E.2d 626 (2012) (internal quotation marks omitted) (quoting Commonwealth v. Amerson , 281 Va. 414, 418, 706 S.E.2d 879 (2011) ). "[W]e determine [that] intent from the words contained in the statute" or ordinance. Williams v. Commonwealth , 265 Va. 268, 271, 576 S.E.2d 468 (2003) (citing Vaughn, Inc. v. Beck , 262 Va. 673, 677, 554 S.E.2d 88 (2001) ; Thomas v. Commonwealth , 256 Va. 38, 41, 501 S.E.2d 391 (1998) ). "[W]ords in a statute [or ordinance] are to be construed according to their ordinary meaning, given the context in which they are used." City of Va. Beach v. Board of Supervisors , 246 Va. 233, 236, 435 S.E.2d 382 (1993) (quoting Grant v. Commonwealth , 223 Va. 680, 684, 292 S.E.2d 348 (1982) ).
When addressing multiple legislative enactments dealing with the same subject matter, we do not view them "as isolated fragments of law, but as a whole, or as parts of a great connected, homogeneous system, or a single and complete statutory arrangement." Thorsen v. Richmond Soc'y for the Prevention of Cruelty to Animals , 292...
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Supreme Court Of Virginia Strikes Down County Zoning Overhaul Adopted Via Electronic Meetings During COVID-19 Pandemic
...Fairfax County's modernized zoning ordinance, known as zMOD. The Supreme Court decision, Berry v. Board of Supervisors of Fairfax County, 884 S.E.2d 515 (Va. 2023), made the zMOD ordinance void ab The zMOD ordinance would have replaced a 40-year-old zoning ordinance in its entirety. The zon......