Berry v. Board of Supervisors ( 2023 )

PRESENT: All the Justices
DAVID BERRY, ET AL.
OPINION BY
v. Record No. 211143 JUSTICE WESLEY G. RUSSELL, JR.
MARCH 23, 2023
BOARD OF SUPERVISORS
OF FAIRFAX COUNTY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David A. Oblon, Judge 1
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.
1
Judge Oblon ultimately made the ruling sustaining the Board’s demurrer and entered the
dismissal order in the matter. The Honorable John M. Tran presided over the proceedings
related to the Residents’ request for a preliminary injunction. On appeal, the Residents only
challenge the circuit court’s ruling dismissing their claims.
I. Background
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.
2
The ordinance, which was attached as an exhibit to the Residents’ complaint and in
pleadings filed by the Board, is titled “AN UNCODIFIED ORDINANCE TO ESTABLISH
METHODS TO ASSURE CONTINUITY IN FAIRFAX COUNTY GOVERNMENT AND
CONDUCT OF BOARD OF SUPERVISORS MEETINGS DURING THE NOVEL
CORONAVIRUS DISEASE 2019 (COVID-19) EMERGENCY, AND TO REPEAL THE
EMERGENCY ORDINANCE ADOPTED ON MARCH 24, 2020, WHICH IS HEREBY
REPLACED[.]” Because the ordinance is uncodified, we will cite to it as the “Continuity
Ordinance” in this opinion.
2
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
3
For purposes of this opinion, “electronic meeting” refers to a meeting “conducted
through telephonic, video, electronic or other electronic communication means where the
members are not physically assembled to discuss or transact public business[.]”
Code § 2.2-3707(B).
3
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
4
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.
II. Analysis
A. Standard of review
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
(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 (2020) (statutory interpretation); Alexandria City Council v. Mirant Potomac River, LLC, 273
Va. 448, 455 (2007) (recognizing that “interpretation of a[n] . . . ordinance, like interpretation of
a statute, is a pure question of law, subject to de novo review”).
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 (2012) (internal quotation marks omitted)
(quoting Commonwealth v. Amerson, 281 Va. 414, 418 (2011)). “[W]e determine [that] intent
5
from the words contained in the statute” or ordinance. Williams v. Commonwealth, 265 Va. 268,
271 (2003) (citing Vaughn, Inc. v. Beck, 262 Va. 673, 677 (2001); Thomas v. Commonwealth,
256 Va. 38, 41 (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 (1993) (quoting Grant v. Commonwealth, 223 Va. 680, 684
(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 Va. 257, 266 (2016) (quoting
Prillaman v. Commonwealth, 199 Va. 401, 405 (1957)). Thus, such enactments are “construed
together” with “effect . . . given to them all” even if “they contain no reference to one another[]
and were passed at different times.” Prillaman, 199 Va. at 406 (quoting Mitchell v. Witt, 98 Va.
459, 461 (1900)).
B. Declaratory judgments, mootness, and ripeness
The Declaratory Judgment Act, Code § 8.01-184 et seq., represents a departure from the
common law requirement that a litigant suffer actual damage before filing suit. See Miller v.
Highland Cnty., 274 Va. 355, 370 (2007). By its own terms, it provides “relief from the
uncertainty and insecurity attendant upon controversies over legal rights, without requiring one
of the parties interested so to invade the rights asserted by the other as to entitle him to maintain
an ordinary action therefor.” Code § 8.01-191. Although the Act “do[es] not create or change
any substantive rights, or bring into being or modify any relationships, or alter the character of
controversies, which are the subject of judicial power[,]” Lafferty v. School Bd. of Fairfax Cnty.,
6
293 Va. 354, 360-61 (2017) (quoting Williams v. Southern Bank of Norfolk, 203 Va. 657, 662,
(1962)), it “provides ‘a speedy determination of actual controversies between citizens, and
[operates] to prune, as far as is consonant with right and justice, the dead wood attached to the
common law rule of ‘injury before action[.]’” Morgan v. Board of Supervisors of Hanover
Cnty., 302 Va. ___, ___ (Feb. 2, 2023) (quoting Chick v. MacBain, 157 Va. 60, 66 (1931)). In
doing away with the requirement that a litigant suffer actual damage before filing suit, the Act
does not permit a litigant to bring an action that is moot or in which the claims are so speculative
that the action is not ripe for adjudication. City of Fairfax v. Shanklin, 205 Va. 227, 229-30
(1964).
The Residents, citing their interests as taxpayers and the requirements of VFOIA, 4 sought
a declaration that the Board lacked the authority to consider, vote on, and ultimately adopt
Z-Mod in an electronic meeting. In challenging the Board’s authority in this regard, the
Residents sought two distinct forms of relief: injunctive relief preventing the Board from
considering, voting on, and adopting Z-Mod at an electronic meeting or, alternatively if the
Board did adopt Z-Mod at an electronic meeting, a declaration that Z-Mod was void ab initio.
Although it is undisputed that the Residents’ complaint represented a live controversy when it
was filed, the circuit court concluded that the entire declaratory judgment action was mooted by
the time the Board adopted Z-Mod and that, alternatively, the second category of relief sought
also was unripe. We address both rulings below.
4
Code § 2.2-3713(A) provides that “[a]ny person . . . denied the rights and privileges
conferred by this chapter may proceed to enforce such rights and privileges,” seeking vindication
by way of litigation.
7
1. Mootness
Article VI, Section 1 of the Constitution of Virginia vests the “judicial power of the
Commonwealth” in the judicial branch. That power, however, “does not authorize [Virginia’s
courts] to ‘issue advisory opinions on moot questions[.]’” Godlove v. Rothstein, 300 Va. 437,
439 (2022) (quoting Board of Supervisors v. Ratcliff, 298 Va. 622, 622 (2020)). An action is
moot “when ‘the issues presented are no longer live or the parties lack a legally cognizable
interest in the outcome.’” Id. (quoting Ratcliff, 298 Va. at 622).
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. See, e.g., Hankins v. Town of Virginia Beach, 182 Va. 642, 644
(1944); Hollowell v. Virginia Marine Res. Comm’n, 56 Va. App. 70, 77-78 (2010). Regardless
of how “it may have come about,” a determination that a claim is moot because it is no longer
possible to grant the requested relief “deprives [a court] of [its] power to act; there is nothing for
[it] to remedy, even if [it] were disposed to do so.” Spencer v. Kemna, 523 U.S. 1, 18 (1998).
The circuit court correctly found that a portion of the Residents’ claimed relief had been
mooted by events. At the time of the circuit court’s final order, the Board had already met, voted
on, and adopted Z-Mod in an electronic meeting. Accordingly, it was impossible for the circuit
court to enter an injunction preventing the Board from doing so, and thus, the circuit court
correctly concluded that the portions of the Residents’ claims that sought to prevent such
occurrences from happening were now moot. See, e.g., Spencer, 523 U.S. at 18; Hankins, 182
Va. at 644; Hollowell, 56 Va. App. at 77-78.
8
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.
Despite this, the circuit court found that the Residents’ declaratory judgment action had
been mooted by the Board’s adoption of Z-Mod. It reasoned that declaratory judgment actions
like the one here may only be used before the “‘claims and rights asserted have fully matured
and the alleged wrongs have already been suffered[.]’” (Citation omitted). The circuit court
reasoned that, because the Residents challenged the adoption of Z-Mod, any deficiencies in its
adoption fully matured once it was adopted.
Although it is true that a declaratory judgment action may not be used to assert claims
that have fully matured, see, e.g., Pure Presbyterian Church of Washington v. Grace of God
Presbyterian Church, 296 Va. 42, 55 (2018), the circuit court’s ruling that the Residents’
declaratory judgment action was mooted by the adoption of Z-Mod was error because the
Residents’ action was not exclusively a pre-adoption challenge to Z-Mod. Rather, because of
the alternative relief requested in the event that the Board adopted Z-Mod, it was also a
pre-enforcement challenge to Z-Mod, seeking to prohibit the Board from enforcing the
provisions of Z-Mod or expending taxpayer funds to implement it. Accordingly, not all of the
Residents’ claims had fully matured.
9
It is well-established that a declaratory judgment action is a proper vehicle for a
pre-enforcement challenge to the manner in which an ordinance has been adopted. See, e.g., Gas
Mart Corp. v. Board of Supervisors, 269 Va. 334 (2005); Glazebrook v. Board of Supervisors,
266 Va. 550, 557 (2003); Town of Jonesville v. Powell Valley Vill. Ltd. P’ship, 254 Va. 70, 74
(1997); Board of Supervisors v. Rowe, 216 Va. 128 (1975). The procedure is so well-established
that, in its brief in this Court, the Board concedes that, regarding “a governing body’s decision to
adopt or amend a zoning ordinance[,]” a declaratory judgment action “is the proper vehicle for
challenging that decision.” 5 Accordingly, the circuit court erred in concluding that the Board’s
adoption of Z-Mod mooted the Residents’ declaratory judgment action. 6
2. 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. Even under the less stringent injury pleading requirements of
the Declaratory Judgment Act, “[t]he controversy must be one . . . where specific adverse claims,
based upon present rather than future or speculative facts, are ripe for judicial adjustment.”
5
In making this concession, the Board argues that a declaratory judgment action is the
appropriate vehicle only “after” the ordinance has been adopted. We address this argument
below.
6
Because the existence of the Residents’ alternative claim for relief provides a sufficient
basis for concluding that the circuit court erred on this question, we do not reach the question of
whether a declaratory judgment action, viable at its filing, must be dismissed as moot if the
claims and rights asserted fully mature, i.e., the potential injury becomes an actual injury, during
the course of the litigation.
10
Charlottesville Area Fitness Club Operators Ass’n v. Albemarle Cnty. Bd. of Supervisors, 285
Va. 87, 98 (2013) (quoting Shanklin, 205 Va. at 229).
In the instant case, the 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[.]” Id.Despite this, at the Board’s behest, the circuit court concluded that the Residents’
declaratory judgment action needed to be dismissed because it was a “premature” appeal of the
zoning ordinance. Specifically, the circuit court concluded that Code § 15.2-2285(F) provides
the sole manner by which the Residents could challenge the Board’s ultimate adoption of Z-Mod
and that the statute required the Residents to refrain from initiating such a claim until after the
Board had adopted Z-Mod. We disagree.
Code § 15.2-2285(F) provides, in part, that
[e]very action contesting a decision of the local governing body
adopting or failing to adopt a proposed zoning ordinance or
amendment thereto or granting or failing to grant a special
exception shall be filed within thirty days of the decision with the
circuit court having jurisdiction of the land affected by the
decision.
The most common applications of the statute have dealt with appeals of individual zoning
decisions, whether regarding an individual parcel of land or discrete provisions within a zoning
ordinance. Assuming without deciding that Code § 15.2-2285(F) applies to a challenge to the
procedures by which a locality purports to have revised its zoning ordinance in its entirety,
11
neither the plain language of the statute nor its purpose required the dismissal of the Residents’
complaint as premature.
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. Notably absent from the statute is the word “after,” and, like this Court,
circuit courts are required to interpret statutes based upon “what the statute says and not by what
[the court] think[s] it should have said.” Amerson, 281 Va. at 421 (quoting Virginian-Pilot
Media Cos. v. Dow Jones & Co., 280 Va. 464, 468-69 (2010)). Accordingly, courts may not
“add[] language to or delet[e] language from a statute” in the guise of interpreting that statute.
Appalachian Power Co. v. State Corp. Comm’n, 284 Va. 695, 706 (2012) (citing BBF, Inc. v.
Alstom Power, Inc., 274 Va. 326, 331 (2007)). 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.7
A conclusion that Code § 15.2-2285(F) did not require the Residents’ complaint to be
dismissed is not only consistent with the literal meaning of the statutory text, it also is consistent
with the purpose of the statute. Previously, we have recognized that the 30-day period in
Code § 15.2-2285(F) and its predecessors is neither a statute of limitations nor a statute of
repose. Friends of Clark Mountain Found., Inc. v. Board of Supervisors, 242 Va. 16, 19-20
7
We note that, on at least one prior occasion, we have concluded that language requiring
that a pleading be filed within a specific time “after” a specified event allowed for the pleading
to be deemed timely filed if filed before the specified event. See, e.g., Lackey v. Lackey, 222 Va.
49, 50 (1981).
12
(1991). In governing challenges to zoning decisions, the statute and resulting procedures exist to
“assure[] that the legislative body’s decision will be reviewed in a fair, orderly, and prompt
manner.” Riverview Farm Assocs. Va. Gen. P’ship v. Board of Supervisors, 259 Va. 419, 426
(2000).
The circuit court’s conclusion that Code § 15.2-2285(F) required the Residents to dismiss
the existing action only to file an identical challenge (minus the previously disposed of requests
for injunctive relief) the day after Z-Mod’s adoption does nothing to increase or assure the
fairness, orderliness, or promptness of the Residents’ challenge to Z-Mod. To the contrary, such
a requirement only would have resulted in both delay and disorderliness, thus producing an
absurd result. Given that such a construction of the statute is not compelled by its text and is at
odds with its purpose, the circuit court erred in dismissing the Residents’ complaint as
premature.8 Accordingly, we turn to the merits of the Residents’ challenge.
C. VFOIA and the presumption of open government
The General Assembly adopted VFOIA, codified at Code § 2.2-3700 et seq., to “ensure[]
the people of the Commonwealth . . . free entry to meetings of public bodies wherein the
business of the people is being conducted.” Code § 2.2-3700(B). VFOIA guarantees such
access because “[t]he affairs of government are not intended to be conducted in an atmosphere of
secrecy since at all times the public is to be the beneficiary of any action taken at any level of
government.” Id. Absent proper invocation of a statutory exception, “every meeting shall be
open to the public” and “[a]ll public records and meetings shall be presumed open[.]” Id.
8
Our conclusion is tied to the specific challenge raised by the Residents to the Board’s
power to adopt the ordinance at all. There may be other circumstances, such as when the actual
content of a proposed ordinance is challenged, in which filing suit before the ordinance is
enacted might be premature.
13
Here there is no dispute that the Board is a “public body” for the purposes of VFOIA and
that the occasions when the Board first considered and then ultimately adopted Z-Mod were
“meetings” for the purpose of VFOIA. As such, those meetings were subject to VFOIA’s open
meeting requirements set forth in Code § 2.2-3707.
Code § 2.2-3707(A) provides that “[a]ll meetings of public bodies shall be open, except
as provided in §§ 2.2-3707.01 and 2.2-3711.”9 Code § 2.2-3707(B), as it existed at the time the
Residents filed suit and the Board conducted the meetings in question, 10 provided that “[n]o
meeting shall be conducted through telephonic, video, electronic or other electronic
communication means where the members are not physically assembled to discuss or transact
public business, except as provided in § 2.2-3708.2[.]”
Code § 2.2-3708.2 articulates various circumstances in which a public body may hold a
meeting by electronic means. As pertinent to the issues raised in this appeal, the applicable
version of Code § 2.2-3708.2(A)(3) provided, in part, that
[a]ny public body may meet by electronic communication means
without a quorum of the public body physically assembled at one
location when the Governor has declared a state of emergency in
accordance with § 44-146.17, provided that (i) the catastrophic
nature of the declared emergency makes it impracticable or unsafe
to assemble a quorum in a single location and (ii) the purpose of
the meeting is to address the emergency.
9
Neither Code § 2.2-3701.01 nor Code § 2.2-3711 have any application to the meetings
of the Board at issue in this appeal.
10
In both 2021 and 2022, the General Assembly amended various provisions of VFOIA,
including both Code §§ 2.2-3707 and 2.2-3708.2. None of those amendments became effective
prior to the Board’s adoption of Z-Mod. Accordingly, we apply the version of VFOIA in effect
at the time of the Board’s consideration and adoption of Z-Mod and only reference the
amendments to the extent that the later actions of the General Assembly may shed light on the
meaning of the version of statutes that were in effect when the Board adopted Z-Mod. See
Prillaman, 199 Va. at 406.
14
(Emphasis added.)
It is undisputed that the Board’s consideration and ultimate adoption of Z-Mod was not
undertaken to address the COVID-19 emergency. After all, the process of revising the existing
zoning ordinance that culminated in Z-Mod began in 2016, well before the existence, let alone
the effect, of COVID-19 was known. Accordingly, unless some other provision of law
supplanted VFOIA’s requirements, the meetings at which Z-Mod was considered and ultimately
adopted could not be conducted by electronic means.
D. Emergency powers legislation
The Board contends that multiple legislative enactments granted it emergency powers
during the COVID-19 state of emergency that allowed it to dispense with VFOIA’s open
meeting requirements and conduct the meetings during which Z-Mod was considered and
adopted by electronic means. Specifically, the Board contends (and the circuit court agreed) that
both Code § 15.2-1413 and the County’s adoption of the Continuity Ordinance as well as
authority granted in the budget bills adopted by the General Assembly in 2020 allowed it to
dispense with VFOIA’s requirement that the meetings regarding Z-Mod be in-person. We
address each argument in turn.
1. Code § 15.2-1413 and the Continuity Ordinance
Code § 15.2-1413, as it existed at the relevant time, provided that
[n]otwithstanding any contrary provision of law, general or special,
any locality may, by ordinance, provide a method to assure
continuity in its government, in the event of an enemy attack or
other disaster. Such ordinance shall be limited in its effect to a
period not exceeding six months after any such attack or disaster
and shall provide for a method for the resumption of normal
governmental authority by the end of the six-month period.[11]
11
In 2021, the General Assembly amended Code § 15.2-1413 to extend the period of
time a continuity ordinance could remain in effect from six months to twelve months. See 2021
15
The Board contends that this language overrode the in-person meeting requirement of
Code § 2.2-3707 and allowed the Board, if it had adopted a continuity ordinance, to consider and
adopt Z-Mod by means of an electronic meeting.
In asserting that Code § 15.2-1413 supersedes VFOIA’s in-person meeting requirement,
the Board correctly notes that, by its express terms, the statute is to be given effect
“[n]otwithstanding any contrary provision of law, general or special[.]” In this context, the plain
and ordinary meaning of “notwithstanding” certainly suggests such a conclusion. See, e.g.,
Webster’s Third New International Dictionary 1545 (2002) (defining “notwithstanding” to mean
“without prevention or obstruction from or by: in spite of”); Black’s Law Dictionary 1281 (11th
ed. 2019) (defining “notwithstanding” to mean “[d]espite; “in spite of”). In addressing similar
statutory provisions, the Court of Appeals has concluded that language providing that a statute
controls “notwithstanding” other statutes “indicates the General Assembly intended that the
statute ‘function without obstruction from’ ‘other incongruous laws.’” Holloway v.
Commonwealth, 72 Va. App. 370, 377 (2020) (some internal quotation marks omitted) (quoting
Green v. Commonwealth, 28 Va. App. 567, 570 (1998)). Applying this reasoning here,
Code § 15.2-1413 trumps the open meeting provisions of VFOIA, but only if and to the extent
that Code § 15.2-1413 conflicts with those provisions.
The text of Code § 15.2-1413 does not, in and of itself, create such a conflict. In
providing only that “any locality may, by ordinance, provide a method to assure continuity in its
government, in the event of an enemy attack or other disaster[,]” Code § 15.2-1413 (emphasis
added), the statute merely grants localities the discretion to adopt such an ordinance. See
Acts ch. 295 (Spec. Sess. I). The amendment became effective July 1, 2021, and thus, has no
application to the Board’s consideration and adoption of Z-Mod in March 2021.
16
Masters v. Hart, 189 Va. 969, 979 (1949) (“Unless it is manifest that the purpose of the
legislature was to use the word ‘may’ in the sense of ‘shall’ or ‘must,’ then ‘may’ should be
given its ordinary meaning—permission, importing discretion.”). Code § 15.2-1413 does not
specify the content of any such ordinance and, given that the statute only grants localities
discretion to adopt an ordinance, it does not require that a locality adopt any such ordinance at
all. See Wal-Mart Stores E., LP v. State Corp. Comm’n, 299 Va. 57, 70 (2020) (recognizing that
the General Assembly’s use of “‘[m]ay’ presupposes that [the body granted discretion] also ‘may
not’”). Accordingly, the question becomes whether a locality has adopted an ordinance pursuant
to Code § 15.2-1413 and whether that ordinance conflicts with VFOIA.
To be sure, Code § 15.2-1413 sets some outer limits on the ordinance a locality is
empowered to enact. The ordinance must be enacted in response to “an enemy attack or other
disaster[,]” may remain in place for a specified duration, and, of particular importance to this
case, must be limited to “provid[ing] a method to assure continuity in its government” and
nothing more. Code § 15.2-1413.
The parties have argued extensively about what the phrase “assure continuity in its
government” means and the outer limit of what a locality may do in an ordinance adopted
pursuant to Code § 15.2-1413. Citing an opinion of the attorney general12 and the context of the
statute authorizing action only “in the event of an enemy attack or other disaster[,]” the Residents
argue that Code § 15.2-1413 allows local government to take steps to continue “governmental
activities that are critical to the continued survival and function of government,” but not ordinary
business, such as the wholesale revision and modification of a 40-year-old zoning ordinance.
12
2020 Op. Atty. Gen. 8-17. “Although the construction of a statute by the Attorney
General is not binding upon this Court, it is of ‘persuasive character.’” Clinchfield Coal Co. v.
Robbins, 261 Va. 12, 18 (2001) (quoting Barber v. City of Danville, 149 Va. 418, 424 (1928)).
17
The Board argues that the interpretation championed by the Residents and the attorney general is
“too narrow,” and effectively asserts that the statute empowers the Board to conduct any of its
ordinary business under the emergency procedures it adopts in the ordinance without regard to
the requirements imposed by VFOIA.
We need not, however, answer the broad, abstract question of the outer limits of the
implied authority granted to localities by Code § 15.2-1413 to resolve this portion of the appeal;
rather, this portion of the appeal can be resolved by focusing on the much narrower question of
whether the specific ordinance adopted by the Board authorized the Board to consider and adopt
Z-Mod at electronic meetings.13 For the reasons stated below and assuming that the Continuity
Ordinance falls within the grant of authority provided by Code § 15.2-1413, we conclude that it
did not authorize the Board to consider and adopt Z-Mod at meetings conducted by electronic
means.
The Board adopted the Continuity Ordinance in 2020 “to establish[] methods to assure
continuity in Fairfax County government, including Board of Supervisors’ procedures for
meetings, during the COVID-19 emergency[.]” Continuity Ordinance, § 1(A). Of note given the
Board’s arguments on appeal, the Continuity Ordinance does not purport to allow the Board to
conduct all of its business without complying with VFOIA. Section 1(D)(1) of the Continuity
Ordinance provides that “[f]or any meeting at which the Board . . . transacts public business with
any purpose other than addressing the emergency or assuring continuity in Fairfax County
government, the Board . . . will meet in accordance with all usual procedures established by the
13
“As we have often said, ‘[t]he doctrine of judicial restraint dictates that we decide cases
on the best and narrowest grounds available.’” Commonwealth v. White, 293 Va. 411, 419
(2017) (some internal quotation marks and footnote omitted) (quoting Commonwealth v. Swann,
290 Va. 194, 196 (2015)).
18
Virginia Freedom of Information Act.” Accordingly, even if we were to assume that
Code § 15.2-1413 allows a locality to decide to conduct all of its business by electronic meetings
during an emergency, the Board did not do so when it adopted the Continuity Ordinance.
Tellingly, even for matters falling within the scope of the emergency provisions of the
Continuity Ordinance, the Board emphasized a desire to comply with VFOIA. Section 1(D)(2)
of the Continuity Ordinance provides that even when “the purpose of a meeting of the Board . . .
is to address the emergency, the Board . . . will meet in accordance with” VFOIA. Similarly,
Section 1(D)(3) of the Continuity Ordinance provides that if a Board meeting “is being
conducted [to] assur[e] continuity in Fairfax County government,” the meeting shall be
conducted “in accordance with all usual procedures established by the Virginia Freedom of
Information Act to the extent possible.” Regarding continuity in government matters, the
Continuity Ordinance only permits the Board to meet without complying with VFOIA, if the
“items proposed to be considered are necessary to assure continuity in Fairfax County
government and the usual procedures cannot be implemented safely or practically[.]” 14
Continuity Ordinance, § 1(D)(3)(B).
It is undisputed that the Board did not consider and adopt Z-Mod to address the
COVID-19 emergency. Rather, the Board contends that, consistent with the Continuity
Ordinance, the consideration and adoption of Z-Mod was necessary to assure continuity in
government. Accordingly, we turn to the Continuity Ordinance’s definition of continuity in
government.
14
“Usual procedures” is defined in the Continuity Ordinance to mean “the requirements
and procedures established by [VFOIA] for public meetings, including remote participation by a
Board member as long as a quorum of the Board is physically assembled at the meeting location,
as allowed by Virginia Code § 2.2-3708.2(A)(1)[.]” Continuity Ordinance, § 1(C).
19
Section 1(C) of the Continuity Ordinance defines “[c]ontinuity in Fairfax County
government” as including
without limitation, those actions, and the coordination of actions,
that are necessary to assure the continuation of the County’s
essential functions and services. By way of example and not
limitation, such necessary actions include those related to (1) the
County’s finances, such as the public hearings and adoption of the
FY 2021 budget, tax rate, and utilities fees; appropriations of
funds; and funding requests; (2) contracts that need Board action;
(3) applications, appeals, or other requests that are subject to
mandatory or directory time frames for action; (4) satisfying due
process and other constitutional requirements; (5) public safety;
and (6) measures that help sustain the County’s economy.
(Emphasis added.)
Although this illustrative list is intended to be non-exhaustive, it is clear that the
consideration and adoption of Z-Mod after a revision process that began literally years before the
COVID-19 emergency is different in kind from the listed examples, and thus, falls outside of the
Continuity Ordinance’s definition of “continuity in . . . government[.]” For each of the listed
examples, there is, at the very least, an implied temporal element. Questions regarding the
County’s budget, entering into and renewing contracts, and meeting statutory deadlines for
government action are all time-sensitive with a failure to meet such deadlines either imperiling
the continued existence of the government or having the potential to cause the County to forever
forego acting on a particular topic. Similarly, taking steps to satisfy due process or other
constitutional requirements, protect public safety, and sustain the County’s economy from
collapse are things that require immediate attention. If an issue does not require immediate
attention, it cannot fairly be classified as “necessary” to allow the County government to
continue with essential functions and services.
20
Although the language of the Continuity Ordinance amply supports such an
interpretation, we note that the context of the ordinance further supports such a view. See Potter
v. BFK, Inc., 300 Va. 177, 182 (2021) (recognizing that “[a]lthough our focus is generally on the
plain meaning of unambiguous [legislative] language, we must also consider that language in the
context in which it is used”). After all, by its own terms, the Continuity Ordinance is designed to
allow Fairfax County to continue to function in the face of the COVID-19 emergency. To the
extent it authorizes a departure from normal procedures, including the open meeting
requirements of VFOIA, it does so only to allow the Board to take the steps “necessary” to
perpetuate the locality’s operations – not to conduct any and all business that the Board
otherwise may be empowered to undertake. In short, the Board enacted emergency procedures
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
21
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.
Despite the fact that the consideration and adoption of Z-Mod was not time-sensitive, the
Board argues that it still fell within the Continuity Ordinance’s definition of “[c]ontinuity in
Fairfax County government” because zoning represents “an essential local government
function[.]” As the Board notes, we previously have stated that “a local government’s exercise
of its zoning authority is ‘one of the most essential powers of government[.]’” Board of
Supervisors v. Board of Zoning Appeals, 268 Va. 441, 446 (2004) (quoting Hadacheck v.
Sebastian, 239 U.S. 394, 410 (1915)). Although both the Continuity Ordinance and our decision
in Board of Supervisors utilize the word “essential,” context makes clear that the word was not
intended to convey the same meaning on each occasion.
In our prior decision, we addressed whether a county board of supervisors had standing to
challenge a decision of the county’s board of zoning appeals. Id. at 445. The question was
whether the final word in zoning matters lay with the board of supervisors or the board of zoning
appeals. Citing Hadacheck, the United States Supreme Court’s 1915 decision characterizing
zoning as an “essential” power of local government, we concluded that the board of supervisors,
as the final repository of a county’s powers, had standing to bring the suit. Id. at 446. In contrast
to its use in the Continuity Ordinance, we used the term “essential” to convey that the zoning
power in general belongs to the locality (and hence the board of supervisors) not whether a
particular action regarding zoning must be performed quickly or at all. Thus, the fact that the
22
zoning power is an essential power of local government does not compel the conclusion that any
particular zoning decision is essential.15
Because there is no dispute in this case that zoning decisions belong to the Board, our
decision in Board of Supervisors, including the use of the word “essential,” sheds little light on
the issue in this case and does not alter our interpretation of the meaning of “essential” in the
Continuity Ordinance.
For the foregoing reasons, the Continuity Ordinance did not authorize the Board to
consider and adopt Z-Mod in an electronic meeting. Accordingly, neither the Continuity
Ordinance nor Code § 15.2-1413 conflicted with or superseded VFOIA’s open meeting
requirements.
2. Budget language
The Board also contends that, in enacting the budget in 2020, the General Assembly
supplanted VFOIA’s open meeting requirements and authorized it to consider and adopt Z-Mod
at meetings conducted by electronic means. See 2020 Acts ch. 1283 § 4-0.01(g) (Reg. Sess.);
2020 Acts ch. 56 § 4-0.01(g) (Spec. Sess. I) (“budget language”). In pertinent part, the
referenced budget language reads:
Notwithstanding any other provision of law, any public body,
including any state, local, regional, or regulatory body, or a
governing board as defined in § 54.1-2345 of the Code of Virginia,
or any joint meeting of such entities, may meet by electronic
communication means without a quorum of the public body or any
member of the governing board physically assembled at one
location when the Governor has declared a state of emergency in
accordance with § 44-146.17, provided that (i) the nature of the
15
We acknowledge that there are specific zoning/land use matters where a locality must
act within a statutorily defined deadline or lose the ability to act at all. See, e.g.,
Code §§ 15.2-2245(B), 15.2-2316.4(B)(1),15.2-2316.4:1(D), and 15.2-2259(A)(3). Given that
time is of the essence in such matters, action by the locality might fairly be characterized as
“essential”; however, we do not decide that issue because that is not the case before us.
23
declared emergency makes it impracticable or unsafe for the public
body or governing board to assemble in a single location; (ii) the
purpose of meeting is to discuss or transact the business statutorily
required or necessary to continue operations of the public body or
common interest community association as defined in § 54.1-2345
of the Code of Virginia and the discharge of its lawful purposes,
duties, and responsibilities; (iii) a public body shall make available
a recording or transcript of the meeting on its website in
accordance with the timeframes established in §§ 2.2-3707 and
2.2-3707.1 of the Code of Virginia; and (iv) the governing board
shall distribute minutes of a meeting held pursuant to this
subdivision to common interest community association members
by the same method used to provide notice of the meeting.
Id. The Board contends that the budget language overrides the open meeting requirements of
VFOIA and permitted the Board to consider and adopt Z-Mod in meetings conducted by
electronic means.
Much as it did regarding Code § 15.2-1413, the Board argues that the budget language
superseded VFOIA because of its introductory phrase, “[n]otwithstanding any other provision of
law[.]” Id. For the same reasons we stated regarding Code § 15.2-1413, we agree that this
language overrides the open meeting provisions of VFOIA, but only to the extent that the
provisions are in conflict. See Holloway, 72 Va. App. at 377. As pertinent to this appeal, such a
conflict arises only if the budget language authorized the Board to consider and adopt Z-Mod at
meetings conducted by electronic means.
The budget language authorized public bodies such as the Board to “meet by electronic
communication means without a quorum of the public body or any member of the governing
board physically assembled at one location when the Governor has declared a state of emergency
in accordance with § 44-146.17” and certain other conditions, set out in romanettes (i) - (iv), are
met. 2020 Acts ch. 1283 § 4-0.01(g) (Reg. Sess.); 2020 Acts ch. 56 § 4-0.01(g) (Spec. Sess. I).
The Residents do not contest that the Governor had declared the requisite emergency or that the
24
conditions in romanettes (i), (iii), and (iv) were satisfied. They argue only that the consideration
and adoption of Z-Mod did not satisfy the condition set forth in romanette (ii), that “the purpose
of meeting[s where Z-Mod was considered and adopted wa]s to discuss or transact the business
statutorily required or necessary to continue operations of the public body . . . and the discharge
of its lawful purposes, duties, and responsibilities[.]” Id.
Specifically, the Residents argue that the revision of a 40-year-old zoning ordinance after
a multi-year process is not “business statutorily required or necessary to continue operations of
the public body[.]” Id. Although not contending that the revision of Z-Mod was “statutorily
required[,]” the Board asserts that the phrase “necessary to continue operations of the public
body” not only allowed the Board to adopt Z-Mod in a meeting conducted by electronic means,
but exempted all of the Board’s business from VFOIA’s open meeting requirements. 16
We disagree with the Board. As pertinent here, romanette (ii) exempts certain Board
business from VFOIA’s open meeting requirements if two distinct conditions are met. The
business must be “necessary to continue operations of the [Board] . . . and [represent] the
discharge of its lawful purposes, duties, and responsibilities” Id. (emphasis added). Because the
two conditions are separated by the conjunctive “and,” both conditions had to be met for the
Board to avoid the open meeting requirements of VFOIA in its consideration and adoption of
Z-Mod. See, e.g., Varga v. Commonwealth, 260 Va. 547, 551 (2000) (holding that “by use of the
conjunctive ‘and,’ the statute is clear that both” of the conditions separated by the conjunction
must be met to satisfy the statutory requirement).
16
At oral argument in this Court, the Board confirmed that its position was that the
budget language exempted all Board business from the open meeting requirements of VFOIA.
25
The Board’s proffered interpretation effectively combines the two distinct conditions into
one, identical condition—that the business considered be part of the Board’s otherwise lawful
business. By arguing that the first condition allows the Board to undertake any lawful Board
business, the Board would effectively read the second condition out of the statute.
Our task in statutory interpretation is “to give reasonable effect to every word” in a
statute, Jones v. Conwell, 227 Va. 176, 181 (1984), and “we will not read a legislative enactment
in a manner that renders any portion of that enactment useless.” Antisdel v. Ashby, 279 Va. 42,
48 (2010). Because the Board’s proffered interpretation does just that, we cannot adopt it.
Giving effect to both of the conditions found in romanette (ii), it becomes clear that the
budget language does not exempt all Board business from VFOIA’s open meeting requirements.
The second condition limits the exemption from VFOIA’s open meeting requirements to “the
discharge of [the Board’s] lawful purposes, duties, and responsibilities[,]” which we interpret as
encompassing the entire universe of activity that the Board is otherwise legally allowed to
undertake. 17 Thus, to give effect to both conditions, the first condition must limit the exemption
to some subset of the Board’s lawful business.
In determining what that subset is, we turn, once again, to context. Potter, 300 Va. at
182. As the Board conceded at oral argument, the General Assembly adopted the budget
language as a “specific response to COVID and the pandemic.” Agreeing that the budget
language was a response to the COVID emergency, we interpret the phrase “necessary to
17
Given the context of the emergency, this is not simply a restatement that the Board
may only do the things that a board may do. It makes clear that any emergency powers granted
by the budget language address how the Board may exercise its existing legal authority and does
not expand the universe of what the Board may do.
26
continue operations of the” Board, 2020 Acts ch. 1283 § 4-0.01(g) (Reg. Sess.); 2020 Acts ch. 56
§ 4-0.01(g) (Spec. Sess. I), in that light.
Given the similarity in language and the shared context of the COVID-19 emergency, it
is unsurprising that we conclude that the use of “necessary to continue operations” in the budget
language conveys a meaning similar to the phrase “necessary to assure the continuation of the
County’s essential functions and services” that appears in section 1(C) of the Continuity
Ordinance. In context, these similar phrases refer to time-sensitive matters that the Board must
undertake to perpetuate the County’s operations. Thus, the phrase “necessary to continue
operations” in the budget language does not encompass all that the Board may lawfully do, and
thus, the budget language cannot be construed as a wholesale license to ignore VFOIA’s open
meeting requirements in conducting any and all business that the Board might wish to conduct.
As noted above, the modification of a 40-year-old zoning ordinance after a five-year
revision process does not satisfy this standard. It is not a time-sensitive matter, and its adoption
is not and was not necessary to allow the County to continue operations. Accordingly, neither
Code § 15.2-1413, nor the Continuity Ordinance, nor the budget language authorized the Board
to consider and adopt Z-Mod in meetings conducted “by electronic communication means
without a quorum of the public body or any member of the governing board physically
assembled at one location[.]”18 2020 Acts ch. 1283 § 4-0.01(g) (Reg. Sess.); 2020 Acts ch. 56
18
To the extent that there may be overlap in the circumstances when a continuity
ordinance adopted under Code § 15.2-1413 and the budget language would allow a locality to
dispense with the public meeting requirements, the budget language is not a mere redundancy.
First, Code § 15.2-1413 applies only to a “locality” while the budget language applies to any
“state, local, regional, or regulatory body, or a governing board as defined in § 54.1-2345 of the
Code of Virginia[.]” 2020 Acts ch. 1283 § 4-0.01(g) (Reg. Sess.); 2020 Acts ch. 56 § 4-0.01(g)
(Spec. Sess. I). Second, any such authority granted by Code § 15.2-1413 to a locality only
applies if the locality adopts a continuity ordinance pursuant to the statute. The budget language
applies whether or not the locality has adopted a continuity ordinance.
27
§ 4-0.01(g) (Spec. Sess. I). Accordingly, the circuit court erred in concluding that the Board was
authorized to do so, and thus, erred in dismissing the Residents’ complaint. 19
E. Remedy
Having concluded that the Board adopted Z-Mod in a manner that violated the open
meeting provisions of VFOIA, we turn to the question of remedy. The Residents argue that,
because “Z-Mod could not be adopted through an electronic meeting[,]” the Board’s purported
adoption of Z-Mod was and remains “void ab initio[.]” We agree.
By failing to hold the meetings at which Z-Mod was considered and ultimately adopted in
compliance with VFOIA’s open meeting requirements, the Board’s actions prevented the public
from participating in the manner required by VFOIA, and thus, potentially limited public
participation and input into the process. As such, the Board’s failure here is analogous to the
circumstances in our prior cases in which a zoning ordinance was adopted despite the failure of
19
We note that in the 2021 session, the General Assembly changed the open meeting
requirements of VFOIA related to public meetings in an emergency by amending
Code § 2.2-3708.2(A)(3). The revised version, which became effective after the Board adopted
Z-Mod, allows a board of supervisors to conduct meetings “by electronic communication means
without a quorum of the public body physically assembled at one location” during declared
emergencies. The 2021 amendment removed VFOIA’s requirement that such meeting be “for
the purpose of addressing the emergency” and allows such meetings if the purpose is either to
“provide for the continuity of operations of the public body or the discharge of its lawful
purposes, duties, and responsibilities.” 2021 Acts ch. 490 (Spec. Sess. I) (emphasis added). The
Residents concede that, if the 2021 amendment had been effective when the Board adopted
Z-Mod, the removal of the requirement that the meeting address the emergency and the
separation of the two other requirements by the disjunctive “or” as opposed to the conjunctive
“and” would have permitted the Board to adopt Z-Mod in the manner it did. Although the Board
continues to maintain that the budget language fully authorized its actions, it conceded at oral
argument in this Court that, compared to the budget language, the language of the amended
Code § 2.2-3708.2(A)(3) is “somewhat broader if read literally.” The fact that the General
Assembly utilized “broader” language in its 2021 amendment to VFOIA is an indication that the
General Assembly intended the VFOIA amendment to reach more situations than the budget
language. This further supports our conclusion that the budget language did not authorize the
Board to conduct all of its business in electronic meetings. See Prillaman, 199 Va. at 406.
28
the locality to provide the statutorily required public notice. In such cases, we have held that
such ordinances are void ab initio. See, e.g., Glazebrook, 266 Va. at 557 (holding that certain
“zoning ordinances passed pursuant to [defective] notices . . . are void ab initio”); Powell Valley
Vill. Ltd. P’ship, 254 Va. at 74 (recognizing that a “[f]ailure to abide by the statutory
prescriptions for the adoption of an ordinance renders the ordinance void ab initio”); City
Council of City of Alexandria v. Potomac Greens Assocs. P’ship, 245 Va. 371, 378 (1993)
(stating that, because the city “failed to give the requisite notices . . . , the TMP Ordinance is void
ab initio”). Accordingly, we conclude that the Board’s failure to comply with VFOIA’s open
meeting requirements renders Z-Mod void ab initio. 20
III. Conclusion
For the foregoing reasons, 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.
20
Although maintaining that the manner in which it adopted Z-Mod was authorized, the
Board, with commendable candor, conceded during oral argument in this Court that, if the Board
was not authorized to adopt Z-Mod in a meeting by electronic means, the Residents “certainly”
were entitled to relief.
29