On March 23, 2023, the Supreme Court of Virginia issued an opinion in Berry v. Board of Supervisors (Record No. 211143) reversing the Fairfax County Circuit Court (hereinafter, “Circuit Court”) and finding the county’s 2021 zoning ordinance adopted in March 2021 (“Z-Mod”) to be void ab initio. According to the opinion, on March 3, 2021, the Fairfax County Planning Commission voted to recommend that the Board of Supervisors of Fairfax County (the “Board”) adopt Z-Mod. Two days later, citing the open meeting provisions of the Virginia Freedom of Information Act (“VFOIA”), David Berry, Carol A. Hawn, Helen H. Webb, and Adrienne A. Whyte, resident taxpayers of Fairfax County (collectively “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, and, as such, any resulting action or approval concerning Z-Mod should be declared void ab initio. During the March 9 meeting, the Board considered the adoption of Z-Mod but deferred its ultimate decision until later in the month and on March 23, the Board met electronically and voted to adopt Z-Mod. The Residents appealed the Circuit Court’s decision dismissing their claims against the Board.

In discussing the appropriate remedy, the Supreme Court of Virginia stated in part: “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 the locality to provide the statutorily required public notice. In such cases, we have held that such ordinances are void ab initio.”

The Meetings Subcommittee of the Virginia Freedom of Information Advisory Council (hereinafter, the “VFOIA Council”) is discussing possible legislative action in response to the Berry decision. As part of its statutory duties, the VFOIA Council is tasked with reporting “annually on or before December 1 of each year on its activities and findings regarding [VFOIA] (§ 2.2-3700 et seq.), including recommendations for changes in the law, to the General Assembly and the Governor.” Va. Code § 30-179(7). The High Court’s decision is appropriate, and the General Assembly should let Berry stand.

First, VFOIA, by its very language and stated policy, supports the Berry decision. VFOIA states that “[b]y enacting this chapter, the General Assembly ensures [emphasis added] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.” Va. Code § 2.2-3700(B). The statute goes on to state that “[u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every [emphasis added] meeting shall [emphasis added] be open to the public and all public records shall be available for inspection and copying upon request.” Va. Code § 2.2-3700(B). A meeting that fails to comply with VFOIA’s open meeting requirements does not ensure the people of the Commonwealth free entry to meetings of public bodies wherein the business of the people is being conducted, and it conflicts with VFOIA’s statement that every meeting shall be open to the public. If such a meeting (or action taken at a meeting), that is violative of VFOIA, cannot be declared void ab initio, then VFOIA’s stated policy is rendered trivial.

Second, the Berry decision brings potency to VFOIA. A law is only as effective as its enforcement mechanism. The ability to seek a declaration that an improperly held meeting (or action taken at a meeting) is void ab initio creates an impetus for compliance. Virginia’s public bodies are more likely to take an astute, responsible and deferential approach toward VFOIA under such a regime. If Berry stands, VFOIA’s open meeting requirements, as set forth in Va. Code § 2.2-3707, are likely to become more meaningful and impactful. The authority of public bodies to act becomes inextricably linked to compliance with VFOIA. Such a linkage sends a clear and unambiguous message that the “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.” Va. Code § 2.2-3700(B).

Third, Virginians expect, and the law demands (in both letter and spirit), that public bodies be trained and competent in VFOIA procedure (see Va. Code §§ 2.2-3704.2(E), 2.2-3704.3 and 30-179(2)). Public bodies do not always comply with VFOIA’s training requirements. The Berry decision is likely to improve compliance. According to the VFOIA Council, “just as § 2.2-3704.2 does not require any specific subject matter or other contents for training FOIA officers, § 2.2-3704.3 and subdivision 2 of § 30-179 do not require any specific subject matter or other contents for training local officials. However, our training presentations designed for local officials do cover both records and meetings issues as well as other topics such as FOIA remedies.” The important takeaway is that the VFOIA Council offers training presentations that cover meetings. It is incumbent upon public bodies to seek the training they need to comply with the law. Even if the VFOIA Council has neither expectation nor presumption that the government officials, members and staff identified in Va. Code §§ 2.2-3704.3 and 30-179(2) are competent in VFOIA’s open meeting requirements (a concerning prospect in and of itself), the expectation of Virginians and the demands of the letter and spirit of the law remain.

Fourth, in those likely rare and sporadic situations when a declaration of void ab initio produces costly consequences, Virginia’s courts are (or should be) empowered¹ to equitably adjudicate those matters—the adjudication of which could have the added effect of producing healthy and substantive public debate. Such situations are going to be the rare exception, and the exception should not dictate the rule. The General Assembly should not enfeeble VFOIA and give public bodies a pass to be heedless just because of occasional and seldom-occurring costly situations that may arise because of the Berry decision.

Fifth, Berry should stand and its remedy ought to be subject to a two-year statute of limitations. It is unclear whether a mechanism and procedure permitting the declaration of a meeting (or action taken at a meeting) as being void ab initio could coexist with, and be limited by, a statute of limitations. The inherently permanent status of “void ab initio” (having no legal effect from inception) is distinct from, and likely can be restrained by, a statute of limitations, which acts as a procedural bar to bringing a claim. Virginia case law² related to court orders may or may not be applicable to ordinances and meetings. At least one other jurisdiction has noted³ that a statute of limitations applies to a cause of action claiming that contracts were void ab initio. Furthermore, even if under current Virginia law, a petition or lawsuit seeking to declare as void ab initio, a meeting (or action taken at a meeting) of a public body is not subject to any statute of limitations, legislation could potentially change this.

A neutered VFOIA moves the Commonwealth away from government transparency and accountability. If the General Assembly legislates to dismantle, defang and debilitate Berry, it will send the message that Virginia’s government can operate outside the scope of its authority and do so with impunity. If, on the other hand, Berry is permitted to stand, it will elevate standards, protect public access to the meetings of public bodies, and promote due process.

“[VFOIA] essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power. See Va. Const., Art. I, §2; Va. Code Ann. §2.2–3700(B).” McBurney v. Young, 569 U.S. 221, 228 (2013). For the betterment of the Commonwealth, the General Assembly should strive for a robust VFOIA and let Berry stand.

1. Two cases referenced in Berry are illustrative: Town of Jonesville v. Powell Valley Village, 254 Va. 70, 77 (1997) (“We agree with the Town’s assertion concerning the prospective nature of the decision and direct that the holding in this case — that adoption of a comprehensive plan is a prerequisite to the adoption of a zoning ordinance — is limited to the instant case and shall operate prospectively only. We disagree, however, that suspension of the decision in this case is consistent with, or required by, our previous cases.”) (internal citation omitted); and City of Alexandria v. Potomac Greens, 245 Va. 371, 378 (1993) (“Alexandria represents that it routinely has enacted zoning amendments following only one notice for the public hearings before the Planning Commission. In oral argument, Alexandria asserted that an affirmative answer to the third certified question would nullify all zoning amendments since 1950. We direct, however, that our decision today shall be limited to the present case, shall operate prospectively only, and shall not affect other amendments enacted prior to our decision in this case.”) (internal citation omitted). ↩︎
2. “[A court] order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could not lawfully adopt. The lack of jurisdiction to enter an order under any of these circumstances renders the order a complete nullity and it may be impeached directly or collaterally by all persons, anywhere, at any time, or in any manner.” Singh v. Mooney, 261 Va. 48, 49 (2001). ↩︎
3. “Appellants’ first contention, that no statute of limitations applies because the contracts were void ab initio, is meritless. Assuming that the contracts were void ab initio, [1] a three-year statute of limitations would apply.” Woodruff v. McConkey, 524 A.2d 722, 724 (D.C. 1987) (footnote omitted). ↩︎

Thanks to Alan Gernhardt, Esq., Executive Director of the Virginia Freedom of Information Advisory Council, for expeditiously responding to the citizen inquiry of November 27, 2023.

Last Updated on December 9, 2023 by Ramin Seddiq