Neighbors can challenge teen treatment center

Where the Fairfax County Board of Zoning Appeals approved a treatment center for teenage girls that would operate from a house, neighbors who live or own property next to the proposed center have standing to challenge the BZA’s decision.

Background

Newport Academy, one of the appellees in this case, wants to open a residential treatment center for teenage girls. The center would operate in a house located in a residential neighborhood. Appellant either own property or live in houses next to the proposed center.

When Newport Academy’s plans became known, several neighbors asked the county’s Zoning Administrator for a ruling on whether the academy’s planned use of a house located in a neighborhood would require a special use permit.

The academy told the zoning administrator that up to eight girls between the ages of 12 and 17 would stay in the facility for 45 to 90 days. The academy said it was not a drug rehabilitation  facility and that no one currently using illegal drugs would be admitted.

The facility would be staffed 24 hours a day. At least eight staff members would be at the facility between 8 a.m. and 7 p.m. Newport Academy would shuttle staff to the facility from off-site parking.

The neighbors assert that facility is not a “Group Residential Facility,” which is a “by right” use and instead, it falls under the definition of “either a ‘Congregate Living Facility’ or a “Medical Care Facility,’’ for which a special exception permit is needed.

“The neighbors fear that drug addicts will populate the treatment center and that the center will, in fact, provide treatment for drug addiction.”

The zoning administrator concluded that Newport Academy’s proposed use is similar to a group residential facility and did not need a special use permit.

The Board of Zoning Appeals affirmed. The neighbors petitioned the circuit court for relief.

“Two of the neighbors, Jason Hein and Matthew Desch, own a single-family residence next to the proposed treatment center. The Anders Larsen Trust owns a home that adjoins the proposed treatment center. All three allege that they would be injured by the operation of a treatment center.”

Petitioners assert there will be more traffic in the neighborhood. The trust representative told the court that her brother is autistic and walks everywhere, so he would be at risk by increased traffic. Petitioners say their property values would go down, as would their quality of life. They also raised concerns about safety and theft “should one of the residents in the facility escape.”

The circuit court concluded, sua sponte, that the petitioners lack standing to challenge the BZA’s decision and dismissed the case. Petitioners appealed.

Legal standards

“Where a party appeals to the circuit court from a decision of the Board of Zoning Appeals, we employ a two-prong test to determine whether a person who does not have an ownership interest in the subject property has standing to challenge a zoning determination.

“‘First, the complainant must own or occupy real property within or in close proximity to the property that is the subject of the land use determination, thus establishing that it has a direct, immediate, pecuniary, and substantial interest in the decision.

“‘Second, the complainant 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.’”

Discussion

“The first element of the test for standing in zoning cases is not in contention here. All three petitioners own property immediately adjacent to the proposed treatment center.

“As to the second element, the petitioners allege that their property values will be diminished by the operation of this facility. Loss of property value, especially for owners of parcels immediately adjacent to the property, can constitute an interest distinct from those of the public at large.

“It is entirely plausible that operating a treatment center in an otherwise entirely residential neighborhood can lead to diminished value of the immediate neighbors’ properties.

“A distinctive and non-trivial ‘pecuniary’ harm is generally sufficient to establish standing. Such a harm constitutes an ‘immediate, pecuniary, and substantial interest’ in the litigation rather than a ‘remote or indirect interest.’ …

“In addition, the neighbors/petitioners allege that their enjoyment of their property will be diminished by the fact that there will be three shifts of staff coming and going, and residents and visitors will likewise be driving to and from the property.

“We conclude that under the circumstances of the present litigation the neighbors’ allegations are sufficient to survive a demurrer on the question of standing.”

Reversed and remanded for further proceedings.

Anders Larsen Trust, et al. v. Board of Supervisors of Fairfax County, et al., Record No. 201538 (McCullough) May 26, 2022. From the Circuit Court of Fairfax County (Bugg). J. Chapman Petersen (Federico Zablah; Gifford R. Hampshire; James R. Meizanis, Jr.; Chap Petersen & Associates; Blankingship & Keith, on briefs), for appellants. Laura S. Gori, Senior Assistant County Attorney (Elizabeth D. Teare, County Attorney; T. David Stoner, Deputy County Attorney, on brief), for appellee Board of Supervisors of Fairfax County, Virginia Matthew A. Fitzgerald (Michael Allen; McGuireWoods; Relman Colfax, on brief), for appellee Virginia Health Care Operations, LLC and Monroe RE, LLC d/b/a Newport Academy. VLW 022-6-027, 7 pp.