Background
Prince William County, Virginia approved three large data-center rezonings in December 2023: Compass (884 acres), Digital Gateway North (534 acres), and Digital Gateway South (342 acres). Together, the rezonings would permit development of over 22 million square feet of data-center space and construction of as many as 37 facilities. Landowners in the surrounding area sued to invalidate the rezonings, arguing the County violated state and local advertising requirements for the public hearing at which the Board approved the ordinances.
The Board had scheduled the public hearing for December 12, 2023. It planned to publish notice in The Washington Post on November 28 and December 5, complying with state law requiring publication “once a week for two successive weeks” with at least six days between publications. The Board’s clerk submitted the ad request on November 20 but failed to confirm it by the Post’s 3:00 p.m. deadline on November 21. As a result, the first ad never ran. The Board then scrambled to publish three ads on December 2, 5, and 9—the last appearing only four days before the hearing rather than the five required by County ordinance.
Two separate lawsuits followed. In one, landowners alleged advertising defects in a demurrer hearing; the trial court sustained the County’s demurrer and dismissed. In the other, landowners went to trial, and the trial judge found the advertising violated state and local law, invalidating all three rezonings. The Board and developers appealed both cases, and the Court of Appeals consolidated them for decision.
The Court’s Holding
The Court of Appeals reversed the dismissal in the first case and affirmed the trial court’s judgment invalidating the rezonings in the second. The court held that the Board’s advertising violated Code § 15.2-2204(A) and County Zoning Ordinance § 32-700.60. Specifically: (1) the first ad never ran on November 28 because the Board failed to confirm the request; (2) the December 2 and December 5 ads were published before the proposed ordinances were available for public review (not until December 7); and (3) the December 9 ad ran only four days before the hearing, violating the five-day minimum. These defects were not excused by the Board’s claim that the newspaper was at fault, nor by the fact that some plaintiffs had actual notice of or participated in the hearing.
Critically, the court held that the “actual notice” saving provision in subsection (B) of the statute—which excuses notice to adjacent landowners who had actual knowledge or participated in the hearing—does not apply to the mandatory public advertising requirements in subsection (A). Public notice requirements are distinct from adjacent-landowner notice requirements and must be independently satisfied. A public body cannot cure a failure to properly advertise by pointing to individual plaintiffs’ actual knowledge of the hearing. This rule applies even to plaintiffs who actively participated in the six-hour hearing.
On the standing question, the court rejected the trial court’s approach of treating the three rezonings as a single project to establish standing. Each rezoning is a separate ordinance, and a plaintiff must independently establish proximity and particularized harm to challenge each one. However, the court found that at least three plaintiffs had standing to challenge all three rezonings based on their proximity to the collective rezoning area and the demonstrable harms to their property values and residential enjoyment.
Key Takeaways
- Public bodies must strictly comply with statutory advertising requirements for zoning ordinances, even when an individual plaintiff had actual notice of the hearing.
- The “actual notice” defense in Virginia Code § 15.2-2204(B) does not excuse violations of the mandatory public advertising requirements in subsection (A).
- Where a public body fails to confirm an ad placement with a newspaper by the required deadline, the public body—not the newspaper—bears responsibility for the failure to publish.
- When a locality imposes more stringent notice requirements by local ordinance, both the statute and ordinance must be satisfied.
- Standing to challenge one rezoning does not automatically confer standing to challenge separately enacted rezonings, even if processed on parallel tracks.
Why It Matters
This decision enforces a bright-line rule: Virginia’s mandatory public-notice requirements are not waivable by individual knowledge. Developers and local governments cannot rely on word-of-mouth, prior publicity, or a plaintiff’s participation in the hearing itself to cure procedural defects in the published notice. This makes compliance with advertising timelines and publication requirements non-negotiable, even in high-profile cases where all interested parties are aware of the proceeding. A single missed deadline or failure to make documents available by the advertised date can invalidate a zoning decision, regardless of how the project might affect the locality.
The decision also has implications for large, multi-component development projects. Each separately enacted ordinance creates a separate standing inquiry; developers cannot rely on the geographic or functional clustering of rezonings to establish that every neighboring landowner can challenge every rezoning. This prevents opportunistic consolidation of grievances but requires plaintiffs seeking to challenge multiple rezonings to establish independent standing for each. For practitioners, the opinion underscores the critical importance of meticulous compliance with notice timelines at the front end of any rezoning or land-use approval process.