Did your business or organization conduct meetings virtually during the peak of COVID-19? If you did, then you were in good company. Safety protocols and governmental regulations on safety distancing oftentimes left little other option. A recent Supreme Court of Virginia case Berry v. Board of Supervisors of Fairfax County has called the validity of decisions made virtually into question.

In Berry, residents of Fairfax County, Virginia, challenged the Board of Supervisors’ decision to amend its Zoning Ordinance virtually, alleging that the vote (relating in part to rental requirements) did not rise to the level of a pandemic-related emergency – and therefore was inappropriate to be heard and decided via Zoom. Three takeaways from this decision:

1. While the decision applies to a government body’s decision, it could reflect future issues for private businesses. The Berry decision detailed the specific requirements surrounding amending (and later challenging) a zoning ordinance in Virginia. To amend an ordinance, the government needs to provide notice of the proposed amendments consistent with the Virginia Freedom of Information Act (VFOIA) – among other requirements. While private businesses are not bound by FOIA law – they may still be bound by federal requirements relating to notice (i.e., publicly traded companies) or their own internal requirements (i.e., bylaws and articles of incorporation). Businesses and organizations would be best served to review current language on conducting votes to preempt reversals like Berry.
2. Look to federal and local law for guidance on how a court might interpret your organization’s past decisions. In 2020, a state of emergency was declared in Virginia – prompting the General Assembly to pass a law allowing virtual decisions during the state of emergency “to conduct necessary public business.” The Zoning Ordinance vote at issue in Berry occurred in March 2021. The Berry Court emphasized that the amendment at issue was not “necessary “and therefore could have been delayed. I recommend comparing whether your organization’s justification for an emergency decision is consistent with local or federal law (i.e., emergency declarations, CARES Act, etc.) to gain insight on how a court might rule.
3.  Virginia localities’ actions may face additional challenges based on the decision. The Berry decision ordered that the zoning amendment be reversed. Such a determination from the highest court in Virginia is powerful – and therefore may prompt other challenges to pandemic-era laws. I recommend that individuals “look out” for additional updates to the law based on this decision.

Feel free to reach out to me to discuss your organization’s meeting protocols.