Fairfax Leaders Aim To Erase Duplicate Zoning Ordinance In County Code

FAIRFAX, VA — Fairfax County residents will have two opportunities in October to provide feedback on a resolution that would eliminate duplication and result in the county being governed by a single zoning ordinance.

At its Sept. 24 meeting, the Fairfax County Board of Supervisors approved a resolution by Supervisor Kathy Smith to repeal Chapter 112.1 and the suppression clause of Chapter 112.2. of the County Code. The Sully supervisor chairs the board's land use policy committee.

The resolution cleans up language in the code that came about due to the circuitous route the county had to take to modernize its zoning ordinance.

In a nutshell, here’s how Fairfax County ended up with two identical zoning ordinances:

• 2016: Fairfax County begins the process of updating its zoning ordinance for the first time since 1978.
• March 17, 2020: Fairfax County declares a state of emergency due to COVID-19 pandemic.
• Jan. 28, 2021: The modernized zoning ordinance, also known as zMOD (Chapter 112.1), reaches the planning commission, which defers its decision until March.
• March 3, 2021: Planning commission votes to recommend the board of supervisors adopt zMOD.
• March 5, 2021: Four county residents file an injunction in Fairfax County Circuit Court seeking to prevent the board of supervisors from voting on zMOD at its March 9 meeting. Their argument was that the governor’s order authorizing use of electronic meetings during the pandemic did not include public hearings. As such, the public did not have adequate opportunity to comment on the proposed ordinance.
• March 9, 2021: During an emergency hearing in Fairfax County Circuit Court, the injunction was denied. Later in the day, the Board considers zMOD but defers the vote until March 23.
• March 12, 2021: The circuit court released its written decision.
• March 22, 2021: Four residents file objections to the court order.
• March 23, 2021: Board approves zMOD.
• May 4, 2021: Circuit court dismisses motion by four residents. Since the board approved zMOD in March, the motion was moot, according to the court.
• Feb. 7, 2023: Fairfax County cancels declaration of local emergency originally enacted during the COVID-19 pandemic.
• March 23, 2023: Virginia Supreme Court voids zMOD, finding that the county violated open meeting rules.
• May 9, 2023: Board readopts zMOD as Chapter 112:2. This includes new language added for clarity; amendments made between the adoption of 112:1 and court action voiding it; and a clause saying that while both versions of zMOD were in effect, 112.1 would supersede 112.2. This was added due to the possibility of 112.1 being ultimately validated.
• October 2023: Fairfax County’s petition for rehearing before the supreme court is denied.
• April 2024: Gov. Glenn Youngkin signed legislation that both houses of the Virginia General Assembly passed unanimously providing legislative relief to localities that conducted meetings electronically during the pandemic.
• July 25, 2024: Board of supervisors incorporates the amendments made to 112.2 into 112.1, making zMOD officially the governing zoning ordinance as of July 1, 2024.
• Sept. 10, 2024: Supervisors vote to amend both 112.1 and 112.2, adding new permissions and use standards for data centers. In effect, both ordinances are identical.
• Sept. 24, 2024: Smith submits resolution to repeal Chapter 112.1 and the supersession clause adopted along with Chapter 112.2 on May 9, 2023.

“It was never my intention — nor, I believe, the board’s — to maintain parallel zoning ordinances in perpetuity,” Smith said, introducing the resolution. “Even with the alignment of Chapters 112.1 and 112.2, having two ordinances can be confusing and create uncertainty. Some of the uncertainty stems from ongoing disputes over Chapter 112.1 and the effect of the 2024 state legislation. For a period, there were good reasons for having parallel ordinances, but I believe the time has come to return the county to a single ordinance.”

Fairfax County residents will have two opportunities to comment on Smith’s resolution:

• Planning Commission Public Hearing: Oct. 16, 2024, at 7:30 p.m., at the Fairfax County Government Center, 12000 Government Center Parkway, Fairfax, VA 22035.
• Board of Supervisors Public Hearing: Oct. 22, 2024, at 4:30 p.m., at the Fairfax County Government Center, 12000 Government Center Parkway, Fairfax, VA 22035.