Background
Prince William County’s Board of County Supervisors approved three rezoning ordinances in December 2023 to permit development of up to 37 data centers on approximately 1,760 acres of agricultural land. The three rezonings—Compass (884 acres), Digital Gateway North (534 acres), and Digital Gateway South (342 acres)—would allow construction of between 3.7 and 11.5 million square feet of gross floor area per project. Landowners near the proposed development sites sued to invalidate the ordinances, alleging that the Board’s advertising for the December 12, 2023 public hearing violated Virginia Code § 15.2-2204(A) and Prince William County Zoning Ordinance § 32-700.60.
The Board had planned to publish notice on November 28 and December 5. The first advertisement failed to run on November 28 after the county clerk neglected to confirm the publication request with the Washington Post despite two emails from the Post requesting confirmation. The Board then ran three advertisements on December 2, 5, and 9 for a hearing on December 12. The trial courts below split on whether the Board was entitled to a statutory “safe harbor” provision excusing advertising defects when newspapers fail to publish as requested.
The Court’s Holding
The Court of Appeals held that three rezoning ordinances were void ab initio due to multiple advertising defects. The Board was not entitled to the safe harbor provision because the Board itself—not the newspaper—was responsible for the failure to publish the first advertisement. The clerk’s failure to respond to the Post’s confirmation requests constituted county fault, foreclosing reliance on the statutory exception for newspaper error.
The court also found that the three subsequent advertisements violated statutory and ordinance requirements in multiple respects. The advertisements failed to satisfy the timing requirements: the December 2 and December 5 advertisements did not have the required six days between them, and the December 5 advertisement and hearing did not have the required five days between them. Additionally, although the ordinances were advertised “by reference” rather than in full, the where-to-examine requirement was violated because the proposed ordinances were not actually available for public review until December 7—after the first two advertisements had already run.
On the standing question, the court rejected the trial court’s approach of treating the three rezonings as a single project for standing purposes, finding that each rezoning required separate standing analysis. However, the court concluded that at least one plaintiff established standing to challenge all three ordinances based on proximity to the affected properties and demonstrable particularized harm (decreased property values, increased noise, visual impacts, water system impacts, and increased traffic).
Key Takeaways
- Local governments must strictly comply with statutory notice requirements in Code § 15.2-2204(A) and cannot rely on a “safe harbor” provision when the government itself causes the failure to publish rather than the newspaper.
- Advertisements by reference must identify where proposed ordinances may be examined, and the documents must actually be available for review at the time of publication—not days later.
- The saving provision in Code § 15.2-2204(B) (excusing defects for those with actual notice) does not excuse violations of the mandatory public advertising requirements in subsection (A).
- Plaintiffs with standing to challenge one zoning ordinance do not automatically have standing to challenge separate, legally independent ordinances located further away, though plaintiffs may establish independent standing to each rezoning based on proximity and particularized harm.
Why It Matters
This decision reinforces strict compliance with statutory notice requirements for zoning decisions and places significant responsibility on local governments to follow procedural protocols carefully. Governments cannot shift blame to newspapers when clerical failures prevent proper publication. The ruling also clarifies that the doctrine of “actual notice” does not provide an escape hatch from mandatory public advertising requirements—even if neighbors know about a hearing and attend it, a government’s failure to properly advertise may render the zoning decision void. This has obvious implications for major development projects where notice failures might invalidate months or years of planning and processing.
The case will likely influence how Virginia localities approach rezoning notice procedures going forward. The fact that an advertising defect can render three separate, substantial rezoning ordinances void ab initio—despite a lengthy public hearing and developer participation—demonstrates the serious consequences of procedural non-compliance in land-use decisions. The court’s insistence that documents advertised “by reference” must actually be available when advertised sets a meaningful limitation on local governments’ flexibility in notice procedures.