Virginia Lawyers Weekly//February 13, 2023
Virginia Lawyers Weekly//February 13, 2023//
The circuit court incorrectly ruled that appellant homeowners lacked standing to pursue claims arising from a rezoning granted by a county board of supervisors to a supermarket chain so that it could build a warehouse and distribution center near appellant’s homes. This ruling is reversed, as is a ruling that several of the claims were not ripe for resolution.
“[A]s ‘a preliminary jurisdictional issue,’ the standing doctrine asks only whether the claimant truly has ‘a personal stake in the outcome of the controversy.’ …
“Focusing on two personal-stake factors, we have held: ‘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.’”
Personal stake allegations
“The homeowners contend that their allegations satisfy both personal-stake factors applicable to standing determinations in zoning challenges. They live in the neighborhood directly adjacent to the proposed development. They claim that they will suffer particularized harm in a manner different from that suffered by the public generally.
“The principal list of such harms includes claims of a dramatic increase in traffic to and from the Wegmans facility, including 860 additional tractor-trailer trucks per day traveling through their neighborhood; flooding that will affect one of the homeowner’s properties and areas where their children play; chronic, excessive noise from truck back-up alarms; and the localized effect of night-sky light pollution from the taller lighting poles to be used in the facility’s parking areas.”
“[T]he original and amended complaints in the present case include specific allegations of particularized harm arising out of the Board’s 2020 approval of Wegmans’s development plan. …
“[T]he homeowners assert harms specific to Wegmans’s intended expansion including tractor-trailer traffic on specific feeder roads surrounding the facility, the increased level of noise caused by back-up alarms from these trucks (allegedly in violation of the local noise ordinance after a sound study by County staff), anticipated flooding caused by the topography of the project, and the night-sky light pollution from taller lighting poles in the parking areas.”
“[T]he Board and Wegmans argue that the homeowners have no standing in 2020 to contest the actual development of the site because they should have asserted their claims in 1995.”
In 1995, the board changed the zoning of the land at issue to “‘M-2, Light Industrial District with conditions[,]’” which include breweries, furniture refinishing, greenhouses and “‘and uses permitted in several other business and industrial zoning districts[.]’”
The homeowners are “challenging the Board’s decision in 2020 to approve rezoning and special-exception applications that authorized Wegmans to develop the property for a specific use subject to specific conditions. … It is difficult to imagine that standing to challenge this specific use would have existed 25 years before it was even arguably a reality. …
“The homeowners … cannot be estopped from filing their claims in 2020 for lack of standing on the theory that they should have filed them 25 years earlier.”
“[T]he allegations of particularized harm made by the homeowners are fairly traceable to the Board’s 2020 decision to approve Wegmans’s conceptual development plan, to amend the proffered conditions in the Board’s previous 1995 ordinance, and to provide a special exception to the ordinance in order to accommodate the specific requirements of this plan. …
“This conclusion applies not only to Counts V through VIII of the original complaint, which directly challenge the substance of the Board’s decision, but also to Counts I through IV, which challenge the allegedly unlawful procedure used by the Board to conduct its meeting at which the decision was made. …
“A claimant ‘assuredly can’ seek to enforce ‘procedural rights’ that affect the public at large ‘so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.’ …
“In this context, the particularized-harm prong of standing focuses on the effect of the challenged conduct – not the manner in which it occurs. When the flawed procedure affects everyone, but the decision reached using this procedure causes particularized, ‘concrete’ harm to some, the latter have standing to challenge the procedure, not the former.”
“As pleaded, Counts VI, VII, and VIII [environmental, noise and nuisance concerns] do not allege mere hypotheticals or conjectural situations that might possibly occur in the distant future. The homeowners assert a direct cause-and-effect relationship between the Board’s 2020 decision and specific, detailed harm to the homeowners. …
“For this reason, Counts VI, VII, and VIII should not have been summarily dismissed with prejudice as speculative.”
Further, Counts VI, VII, and VIII assert a sufficiently ‘ripe’ controversy for purposes of examining the case on the merits under the Declaratory Judgment Act and declaring the rights of the parties. Whether further ‘consequential relief,’… should be granted is a question to be answered by the circuit court after, not before, declaring the rights of the parties.”
Reversed and remanded.
Morgan, et al. v. Board of Supervisors of Hanover County et al., Record No. 211021; (Kelsey) Feb. 2, 2023. From the Circuit Court of Hanover County (Harris). Brian L. Buniva (B.L. Buniva Strategic Advisor, on briefs), for appellants. Dennis A. Walter, County Attorney (Rebecca B. Randolph, Deputy County Attorney; Leah D. Han, Assistant County Attorney, on brief), for appellee Board of Supervisors of Hanover County. Robert W. Loftin (Eugene E. Mathews; Christopher E. Trible; Margaret A. Bowman; Brogan S. Chubb; Andrew M. Condlin; Joseph P. Bowser; McGuireWoods; Roth Jackson, on brief), for appellee Wegmans Food Markets, Inc. Amici Curiae: Virginia Environmental Justice Collaborative, the Sierra Club, the Virginia Poverty Law Center, Waterkeepers Chesapeake and Potomac Riverkeeper Network (Steven Fischbach; Virginia Poverty Law Center, on brief), in support of appellants. Amici Curiae: Local Government Attorneys of Virginia, Inc., the Virginia Municipal League, and the Virginia Association of Counties (Jeffrey L. Mincks; David W. Robinson, on brief), in support of appellee Board of Supervisors of Hanover County. VLW 023-6-003, 21 pp.