Background
The Board of County Supervisors of Prince William County adopted three separate rezoning ordinances in December 2023 to permit large-scale data center development on agricultural land. H&H Capital Acquisitions applied for Compass (884 acres), while GW Acquisition entities applied for DG North (534 acres) and DG South (342 acres). The projects would collectively permit up to 37 data centers.
Virginia law required the Board to publish legal notices in a newspaper “once a week for two successive weeks” with at least six days between publications and at least five days between the second publication and the public hearing. The Board’s first advertisement failed to run when the clerk did not confirm the publication request with The Washington Post by the deadline. The Board then published three replacement advertisements on December 2, 5, and 9—violating the statutory timing requirements. Additionally, the draft ordinances were not available for public review until December 7, after the first two ads had been published.
Two separate lawsuits were filed: one by ten landowners (Burke plaintiffs) and another by twelve landowners and their homeowners association (Oak Valley plaintiffs). Both sought to declare the ordinances void ab initio due to advertising defects. The Burke court sustained the Board’s demurrer, while the Oak Valley court held a five-day bench trial and found the ordinances void. The cases were consolidated on appeal.
The Court’s Holding
The Court of Appeals held that all three rezoning ordinances are void ab initio because the Board violated mandatory advertising requirements in Virginia Code § 15.2-2204(A) and the Prince William County Zoning Ordinance § 32-700.60. The Board was responsible for the failure of the first advertisement—the clerk’s failure to confirm the Post’s request—and thus could not invoke the “safe harbor” provision excusing newspaper publication failures. The court rejected the Board’s argument that the saving provision in Code § 15.2-2204(B), which addresses notice to specific adjacent landowners, could excuse broader public advertising defects under subsection (A).
The court clarified that “a public body must advertise proposed zoning ordinances in compliance with Code § 15.2-2204(A) and with any non-conflicting advertising requirements self-imposed by ordinance.” When ordinances are advertised “by reference” rather than in full, the text must be available for public inspection at the time of publication. The court also emphasized that the mandatory public advertising requirements cannot be excused by the fact that some landowners had actual notice or participated in the public hearing.
Regarding standing, the court held that plaintiffs must establish standing independently for each separate rezoning ordinance and cannot aggregate three legally distinct ordinances into a single challenge simply because they proceeded on parallel tracks. However, the court found that one or more plaintiffs had standing based on proximity to the rezoned properties and particularized harms including decreased property values, noise concerns, visual impacts, and traffic impacts.
Key Takeaways
- Rezoning ordinances are void ab initio if the governing body fails to comply with mandatory statutory and ordinance advertising requirements, regardless of whether affected parties had actual notice or participated in the hearing
- The “safe harbor” provision for newspaper publication failures applies only when the newspaper fails to publish; it does not excuse failures by the public body itself
- When zoning amendments are advertised “by reference,” copies must be available for public inspection at the time of advertisement, not after
- Plaintiffs challenging multiple rezoning ordinances must establish standing independently for each separate ordinance; standing cannot be aggregated across legally distinct legislative acts
- Landowners near proposed rezonings have standing if they demonstrate proximity to the affected property and particularized injury distinct from the public generally
Why It Matters
This decision sends a clear message that procedural compliance with advertising requirements in zoning matters is non-waivable and cannot be cured by post-hoc actual notice. For local governments, it underscores the critical importance of maintaining strict calendars and checklists for publication deadlines—a single administrative failure (here, an unconfirmed newspaper request) resulted in the complete invalidation of three major development projects worth hundreds of millions of dollars. The decision confirms that the “actual notice” defense available to nearby landowners under Code § 15.2-2204(B) does not extend to the broader public advertising requirements of subsection (A).
For developers and landowners challenging zoning actions, the decision reinforces that advertising-based challenges remain potent litigation tools. Landowners who participated in public hearings or had knowledge of rezoning proceedings cannot be precluded from challenging advertising defects. The standing analysis also clarifies that while developers may proceed with multiple rezoning applications on parallel tracks, treating them as a coordinated development does not allow neighbors to aggregate their claims of injury across separate ordinances. Each rezoning must be challenged separately, though proximity to any one project and evidence of particularized harm may be sufficient to establish standing.