Virginia Lawyers Weekly VA Lawyers Weekly
Appellant’s membership in a neighborhood association that opposed pipeline construction in their neighborhood did not give her standing to appeal the grant of a land use permit that authorized the construction.
Background
After the Virginia Department of Transportation approved Washington Gas Light Company’s application to construct a pipeline through appellant’s neighborhood and directly in front of her property, she filed a petition for appeal in the circuit court. She alleged the construction would be disruptive, and, given flooding concerns, there was a better alternative for the pipeline’s location.
The Pimmit Hills Citizens’ Association held a meeting. Appellant alleged there was near unanimous opposition to the pipeline. The association adopted a formal resolution opposing the pipeline’s approved location.
Initially, VDOT denied WGL’s application for a land use permit. WGL appealed. VDOT said the application lacked an engineer’s signature. WGL resubmitted its application with the required signature. VDOT granted the permit, prompting appellant’s petition.
VDOT filed a plea in bar and a motion to dismiss. WGL filed a demurrer. Both parties argued that appellant lacked standing to petition for appeal. The circuit court concluded that, under the court rules and the Virginia Administrative Process Act, appellant was not a party to the underlying case. The circuit court further found that even if appellant was a party, “she is not aggrieved under the case law as the [c]ourt reads it.”
The court granted VDOT’s motion to dismiss and sustained WGL’s demurrer.
Relevant law
“‘It is clear that, under Code § 2.2-4026, two things must be true for a person to appeal a case decision: the person must be a party to the administrative proceeding from which the case decision arises, and the person must be aggrieved.’ …
“Further, it is also clear from Code § 2.2-4026(A) that an appeal of a case decision under the VAPA will be ‘in the manner provided by the Rules of the Supreme Court of Virginia.’ … To obtain judicial review of an agency decision, Rule 2A:2(a) requires that ‘[a]ny party appealing from a regulation or case decision shall file with the agency secretary, within 30 days … of the final order in the case decision, a notice of appeal.’ (Emphasis added).
“Rule 2A:1(c) defines a ‘party’ as follows: ‘The term “party” means any person affected by and claiming the unlawfulness of a regulation, or a party aggrieved who asserts a case decision is unlawful or any other affected person or aggrieved person who appeared in person or by counsel at a hearing, as defined in [Code] § 2.2-4001, with respect to the regulation or case decision as well as the agency itself.
“‘Whenever a case decision disposes of an application for a license, permit or other benefit, the applicant, licensee or permittee shall be a necessary party to any proceeding under this part.’
“The above-cited provisions establish that under the VAPA, any ‘party aggrieved’ may appeal an agency case decision. … In addition, as further explained by Rule 2A:1(c), a ‘party’ with the ability to appeal a case decision includes ‘a party aggrieved who asserts a case decision is unlawful’ and ‘any other affected person or aggrieved person who appeared in person or by counsel at a hearing … with respect to the … case decision.’”
Not a party
“Appellant argues that she was ‘a party aggrieved’ and therefore had standing to appeal VDOT’s case decision. Because we find the question of whether appellant was a party to the case decision dispositive, we address this issue first.
“Appellant asserts that she was a party to the land use permit proceeding because she was a member of the PHCA. She alleges that VDOT requested comments from this organization and that the PHCA submitted the requested comments to VDOT in regard to the proposed land use permit. Therefore, appellant argues, her participation in the commenting process made her a party to the administrative proceeding and provided her with standing to appeal VDOT’s case decision.” We disagree.
“[A]ppellant bases her alleged ‘party’ status on the allegation in her petition that, as a member of the PHCA, she provided comments to VDOT and VDOT considered these comments.
“However, we conclude, based on the plain meaning of the word ‘party.’ that making comments to an administrative agency does not transform an interested member of the public into a party. While VDOT solicited and considered comments from the PHCA in regard to the proposed land use permit, these actions did not amount to providing the neighborhood committee with any actual or formal control over the direction of the permitting proceeding.
“In this case, there were only two actual parties who had the ability to control the proceedings, make a defense, or appeal – WGL, the permit applicant, and VDOT, the administrative agency with the authority to approve the permit application. …
“Even while accepting as true all facts alleged in appellant’s petition and all reasonable and fair inferences that may be drawn from them, appellant has not alleged sufficient facts in her original petition to establish that she had standing to appeal the land use permit approval.
“We hold, based upon the structure and plain meaning of Code § 2.2-4026 and Rule 2A:1(c), that, in this case, participating in public comments on a permit application did not establish that appellant was a ‘party’ to the administrative agency’s case decision.”
Affirmed.
Peed v. Virginia Dep’t of Transportation, et al., Record No. 0767-20-4, Jan. 12, 2021. CAV (Malveaux) from Fairfax County Cir. Ct. (Mann). Isak Howell for appellant, E. Scott Moore for appellee VDOT, Michael S. Dingman for appellee Washington Gas Light Co.. VLW 021-7-004, 12 pp. Published.
