April 28, 2020
The Virginia General Assembly recently authorized public bodies — including local boards and commissions — to meet electronically during the state of emergency declared by Gov. Ralph Northam in response to COVID-19. This clarifies and expands the previous authority for boards, authorities, planning commissions and other public bodies to meet and take action even when they cannot otherwise meet in person due to social distancing requirements.
Read on to learn more about the General Assembly’s action and what it means for development applications in Northern Virginia.
Electronic Meetings Legislation
On April 22, 2020, the General Assembly authorized public bodies, local boards and commissions to meet electronically provided these meetings satisfy the Virginia Freedom of Information Act’s quorum requirements. The General Assembly’s action clarifies and expressly allows local boards and commissions to consider land use cases in an electronic meeting. This change will go into effect once Gov. Northam signs the legislation into law and will remain in effect through June 30, 2022. The General Assembly is considering a permanent legislative fix during the 2021 legislative session.
The General Assembly passed this legislation to clarify an opinion issued by Attorney General (AG) Mark Herring in late March. The AG opinion concluded that local boards could “meet electronically to make decisions that must be made immediately and where failure to do so could result in irrevocable public harm.”
Localities, commissions and authorities in Northern Virginia took varied approaches to holding meetings electronically under the AG opinion. Arlington County passed an ordinance allowing the Arlington County Board to meet virtually to consider matters essential to the continued operation of government. Fairfax County held its first virtual meetings in mid-April, which included the review of several land use cases. Alexandria passed an emergency ordinance to allow the City Council and commissions to meet virtually, and the Alexandria City Council has met virtually several times since then to consider limited agendas. The Alexandria Board of Architectural Review met virtually in April with a limited agenda.
Impact on Development in Northern Virginia
The General Assembly’s action clarifies the prior authority to meet electronically and expressly authorizes consideration of normal agenda items, including land use cases. There had been a tremendous amount of uncertainty about whether localities would put land use cases on hold during the COVID-19 crisis. The new legislation clarifies and makes it abundantly clear that local public bodies can meet virtually to consider land use cases if they choose to exercise the authority granted by the General Assembly.
It remains unclear whether localities will allow commissions — including planning commissions — to meet virtually even with express authorization to do so. Localities are still figuring out how local public bodies should be involved in the land use process during the public health emergency. Implementation will vary by jurisdiction, but most jurisdictions want to keep land use cases moving and are thinking of creative ways to involve commissions once the new legislation goes into effect.
Please contact one of the authors if you have questions about the new legislation and what it means for your land use cases.
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