Inadequate public hearing notice invalidates two-year-old zoning laws

• The Loudoun County Board of Supervisors inadequately noticed a public hearing pertaining to new land-use zoning ordinances, and so those laws are invalid, the Virginia Supreme Court ruled last week.

March 8, 2005 — Because the Loudon County Board of Supervisors did not give the public adequate notice when it convened hearings to consider new zoning laws, the Virginia Supreme Court deemed two-year-old zoning ordinances invalid on March 3.

Loudoun County has been one of the fastest growing counties in the United States, and in late 2002 the board considered “slow-growth” zoning laws to moderate the rapid-fire construction of new homes.

In an effort to comply with public notice requirements imposed by Virginia law, the county board placed two public hearing notices in the Loudon-Times Mirror in late 2002 relating to proposed zoning law amendments. The board also mailed 64,000 individual notice letters to county landowners. The hearing notices advised that the board would consider implementing “Conservation Design policies” for “most of . . . the western portion of the county.”

In early 2003 the Conservation Design policies were adopted, and they required that new home construction be staggered to every ten, 20 or 50 acres. Within one month, more than 200 lawsuits were filed against the board challenging the zoning laws’ validity on various grounds, among them the sufficiency of the hearing notices as they appeared in the Mirror and the 64,000 letters. Virginia law allows courts to retroactively void laws whose enactment did not obey public hearing notice requirements.

After consolidating the suits, the trial court found that the board’s hearing notice was sufficient. The complainants appealed, however, and on March 3 the Virginia Supreme Court reversed the trial court on that issue, paving the way for some 50,000 new homes.

According to Virginia law, a complete transcription of proposed law is not required to satisfy hearing notice requirements — just a “descriptive summary.” The board’s hearing notice failed to provide a descriptive summary, the high court ruled, saying that the benchmark was whether a citizen could reasonably determine if he or she was interested in and affected by the proposed law.

Justice Roscoe B. Stephenson wrote for the unanimous court that since the notice did not define what “Conservation Design policies” were, citizens couldn’t know if they were interested in them. He similarly ruled that individual citizens were unable to parse out from the hearing notice whether they would personally be affected by the proposed law. The notice defined the proposed law’s geographic scope too vaguely as “most of . . . the western portion of the county,” he wrote.

The current board can now correct the Supreme Court’s invalidation of the zoning requirements by issuing proper hearing notice, reconvening, and reinstating the law. The Washington Post has reported, however, that since the original “slow-growth” regulation’s passage, “a new crop of pro-growth officials” have taken power.

(Gas Mart Corp. v. Board of Supervisors of Loudoun County; Petitioners’ counsel: John H. Foote; Richmond, Va.) — RL

© 2005 The Reporters Committee for Freedom of the Press

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