Background
Prince William County’s Board of Supervisors approved three rezoning ordinances to permit data center development on approximately 1,760 acres in a largely rural area: the Compass rezoning (103 parcels, 884 acres, applicant H&H Capital), Digital Gateway North (534 acres, applicant GW Acquisition Co. I), and Digital Gateway South (342 acres, applicant GW Acquisition Co.). Local landowners, including the Oak Valley Homeowners Association, sued to invalidate the rezonings, claiming the Board violated statutory and local ordinance advertising requirements when it advertised a December 12, 2023 public hearing.
The Board had submitted an advertisement to The Washington Post for publication on November 28, 2023 (14 days before the hearing), but the county clerk failed to confirm the submission by the newspaper’s deadline, and the ad did not run. The Board then published three ads on December 2, 5, and 9, claiming it had satisfied the advertising requirements. The proposed ordinances were not available for public review until December 7, 2023—after the first two ads had already run and only five days before the hearing.
At trial, Judge Irving found the Board at fault for the November 28 publication failure and held that the Board was not entitled to a statutory safe-harbor provision. She concluded that all three rezoning ordinances were void ab initio based on advertising defects. The Board and developers appealed.
The Court’s Holding
The Court of Appeals affirmed that the three rezoning ordinances were void ab initio. The court held that one or more of the Oak Valley plaintiffs had standing to challenge all three rezonings, though it rejected the trial court’s theory that plaintiffs could aggregate the separate rezonings. Instead, the court found that individual plaintiffs living in close proximity to the rezoned areas and facing particularized harm from the proposed data centers had standing to bring the challenge.
The court held that the Board violated Virginia Code § 15.2-2204(A) and Prince William County Zoning Ordinance § 32-700.60 in multiple respects: the subsequent advertisements (December 2, 5, and 9) did not maintain the statutory interval of at least six days between the first and second publications; the final advertisement was published fewer than five days before the hearing (as required by the local ordinance); and the advertisements failed to identify where copies of the proposed ordinances could be examined when published, since they were not actually available for review until December 7. The court rejected arguments that the Board’s compliance was excused by a statutory safe-harbor provision (which applies only to newspaper failure, not government failure to timely request publication) or by plaintiffs’ “actual notice” and participation in the hearing.
Critically, the court held that the saving provision in Code § 15.2-2204(B)—which excuses notice deficiencies when affected landowners had actual notice or actively participated in the hearing—does not apply to advertising deficiencies under subsection (A). A public body must strictly comply with statutory advertising requirements regardless of whether affected parties knew about or attended the public hearing.
Key Takeaways
- Statutory and ordinance advertising requirements for zoning hearings are mandatory and must be strictly observed; substantial compliance is insufficient.
- The safe-harbor provision for newspaper publication failures does not excuse government failure to timely submit advertisement requests or to properly plan for compliance.
- A municipality must ensure that the text of a proposed ordinance (or adequate notice of where it may be reviewed) is available to the public when advertisements are published, not after.
- Actual notice to or participation by affected landowners does not waive their right to challenge deficient statutory and ordinance advertising.
- Plaintiffs need not aggregate legally separate zoning ordinances to establish standing; each must be challenged independently based on particularized injury to the challenger.
Why It Matters
This decision reinforces that local governments must navigate notice and advertising requirements with precision when rezoning land. Courts will not excuse defects even when the purposes of notice—informing the affected public—appear to have been achieved in fact. The holding places significant responsibility on municipalities to coordinate timing, ensure documents are available before publishing advertisements, and strictly comply with statutory intervals. For developers and applicants, it underscores that procedural defects in advertising, rather than merits-based objections, can invalidate ordinances and require reapplication and re-hearing processes.
The decision also clarifies that standing doctrine in Virginia land-use cases does not permit plaintiffs to leverage claims against one zoning action to challenge separate, though simultaneous or related, actions. This may limit the scope of challenges to large, multi-parcel development projects, requiring separate standing proof for each distinct ordinance. For litigators challenging rezoning ordinances, the case demonstrates that advertising defects—though technical—remain powerful grounds for invalidation when parties challenge them within the 30-day statutory window.