Plaintiffs lack standing to contest construction project

Where plaintiffs seek to enjoin construction of a distribution center located near their homes, they lack standing to do so because they have not alleged particularized injuries arising from the construction. 

Plaintiffs are granted leave to amend their complaint to allege such injuries. However, several counts of the complaint allege speculative injuries. Those counts are dismissed with prejudice.

Standing standards

“[F]or plaintiffs to establish standing in declaratory judgment actions challenging the land use decision of a local governing body or zoning board when plaintiffs do not have an ownership interest in the subject property[,] [p]laintiffs must first show they ‘own or occupy real property within or in close proximity to the property that is the subject of the land use determination.’ Friends of the Rappahannock, 286 Va. 38, 48 (2013). 

“Second, plaintiffs must ‘allege facts demonstrating a particularized harm to some personal or property right, legal or equitable, or imposition of a burden or obligation upon the petitioner different from that suffered by the public generally.’ …

“Additionally, the particularized harm must be based on present, rather than future or speculative, facts to establish a justiciable issue ripe for adjudication. … 

“Like the claimants in Friends, in the case at bar, Plaintiffs are a group of homeowners whose properties are located near the proposed building site for Defendant Wegmans’ Distribution Facility. Plaintiffs allege a list of harms they have suffered or will suffer in their eight-count Complaint for Declaratory and Injunctive Relief based on the Board’s decision to approving the application to build the Facility. 

“Defendants concede that Plaintiffs have met the first step of the Friends’ test. However, the Court finds that none of Plaintiffs’ alleged injuries meet the second step of the test. Additionally, counts VI, VII, and VIII allege injuries that are speculative in nature. …

“Thus, Defendants’ Demurrers are sustained as to each count of the Complaint, as discussed below, for not alleging facts sufficient to establish standing or claims ripe for adjudication. Plaintiffs are granted leave to amend their complaint as to counts I, II, III, IV, and V; counts VI, VII, and VIII are dismissed with prejudice.”

Discussion

Count I: “Plaintiffs allege injury by the Board for choosing to hold the public hearing for the Wegmans Distribution Facility despite the Governor’s ‘stay at home order.’ Any injury was suffered not just by Plaintiffs, but by the public generally. The Court finds Plaintiffs have failed to plead facts sufficient to establish a particularized harm which is ‘different from that suffered by the public generally.’”

Count II: “Plaintiffs allege injury because the Board limited the public hearing attendance to 20 people, and accepted written comments, voicemails, or emails to be presented at the meeting by anyone who could not attend. Any injury was suffered not just by Plaintiffs, but by the public generally. The Court finds Plaintiffs have failed to plead facts sufficient to establish a particularized harm which is ‘different from that suffered by the public generally.’”

Count III: “Plaintiffs allege that the limited attendance at the public hearing violated the Virginia Freedom of Information Act. Any injury was suffered not just by Plaintiffs, but by the public generally. The Court finds Plaintiffs have failed to plead facts sufficient to establish a particularized harm which is ‘different from that suffered by the public generally.’”

Count IV: “Plaintiffs allege they were denied their right to review and comment on the Revised Final Proffer of REZ 2019-00037 which was submitted the same day as the public hearing. Any injury was suffered not just by Plaintiffs, but by the public generally.”

Count V: “Plaintiffs allege the accepted Revised Final Proffer is less protective of them, allowing Wegmans to build a taller building and light poles, and less esthetically pleasing exterior building materials. Any injury was suffered not just by Plaintiffs, but by the public generally.”

Count VI: “Plaintiffs allege the building of the Wegmans Distribution Center may violate the Chesapeake Preservation Act, resulting in ‘loss of wildlife and threatened and/or endangered plant and wildlife habitat believed to exist on the Air Park property.’ Any injury may be suffered, not just by Plaintiffs, but by the public generally. In addition, any such injury has not yet occurred, and may not occur. The Court finds Plaintiffs have failed to plead facts sufficient to establish a particularized harm which is ‘different from that suffered by the public generally.’ … Furthermore, the alleged harm is speculative in nature and not ripe for adjudication.”

Count VII: “Plaintiffs allege the construction and operation of the Wegmans Distribution Facility will cause increased noise levels from construction and truck back-up beepers at all hours of the day and night in violation of the County’s noise ordinance. Any Injury may be suffered, not just by Plaintiffs, but by the public generally. In addition, any such injury has not yet occurred, and may not occur.” Plaintiffs have not pleaded a particularized injury, and the alleged injury or harm is speculative and “not ripe for adjudication.”

Count VIII: “Plaintiffs allege the construction and operation of the Wegmans Distribution Facility will cause increased semi­trailer truck and vehicular traffic along Sliding Hill Road, light pollution at night from the taller light poles, increased noise from traffic and Facility operations, and a decrease in property value.” Plaintiffs have not pleaded a particularized injury, and the alleged injury or harm is speculative and “not ripe for adjudication.”

Morgan, et al. v. Board of Supervisors of Hanover County, et al., Case No. CL20001902-00, Nov. 9, 2020, Hanover County Cir. Ct. (Harris). Brian L. Buniva for plaintiffs, Dennis A. Walter for Board of Supervisors of Hanover County, Joseph P. Bowser for Wegmans Food Markets, Inc., Courtney Moates Paulk, John O’Malley for Air Park Associates, LP. VLW 020-8-133, 14 pp.