Administrative: Homeowners’ challenge to Wegmans distribution center fails

Where homeowners asserted multiple challenges against a proposed Wegmans distribution center, but each of their challenges failed as a matter of law, their suit was dismissed.

Background

This appeal is the latest in a long-running dispute over a proposed Wegmans Food Markets Inc. distribution center. The Supreme Court reversed and remanded a 2021 ruling of the trial court that sustained demurrers and dismissed the appellants’ amended complaint with prejudice.

Following Morgan I, the appellants filed a second amended complaint to which Wegmans and The Board of Supervisors of Hanover County once again demurred. The trial court sustained the demurrers as to four counts and dismissed those claims with prejudice. The trial court entered a voluntary nonsuit as to the remaining claims.

Demurrers

Homeowners argue the Supreme Court’s reversal and remand of the trial court’s decision in Morgan I effectively overruled the demurrers of the defendants to the eight causes of action originally pled by the homeowners. However, the Supreme Court was explicit in its opinion that it was only addressing the issue of standing.

Further, the filing of the verified second amended complaint invited the very responsive pleading they now lament. Therefore, the defendants were not precluded from filing the demurrers at issue here nor did the trial court abuse its discretion in allowing them to be filed.

Count One

Homeowners allege that the Board violated Executive Orders 53 and 55 in conducting the May 6, 2020, meeting because its actions were inconsistent with the laws of the Commonwealth by conducting a public, in-person gathering of more than 10 individuals in the Board’s meeting room. The Board’s choice to schedule and conduct the meeting  did not violate these Executive Orders because the public hearing fell within the “operation of government” exception listed in both orders.

Count Two

Homeowners contend the Board deprived them of their right to meaningfully participate in the public hearing on May 6, 2020, in violation of Code § 15.2-2204(A) and that public notice was inadequate. The court again disagrees.

On May 2, 2020, the Board posted the procedures for public attendance and comment during the May 6, 2020 meeting, informing members of the public that those wishing to make their opinions known to the Board were strongly encouraged to do so by an email address and a voicemail number provided for that purpose and that registration slots for members of the public to speak in opposition to the applications were full at that time.

The Board held the meeting in person on May 6, 2020, with all Board members present in the boardroom in accordance with the procedures posted previously. The Board did not select or determine which members of the public addressed them, which included several of the homeowners as well as their counsel, who were present in the meeting room.

Count Three

Homeowners allege that the Board violated the Virginia Freedom of Information Act, or VFOIA, because “public attendance was severely limited” meaning that the “Zoning Hearing conducted by the Board was not open to the public including some of the [homeowners] in the manner required by VFOIA.” The court disagrees.

Given the nature of the COVID-19 pandemic, the Board’s restrictions on the number of people who could be present in the meeting room at any given time was

reasonable under VFOIA’s open meeting requirements. More notably, the homeowners were represented by counsel who was present in the boardroom observing throughout the meeting and addressed the Board in person on their behalf in opposition to the applications and three of the homeowners themselves addressed their concerns to the Board.

Count Four

Homeowners allege the Board violated Hanover County Code § 26-308(2), which requires an applicant to submit any revised conceptual plan no later than 21 days prior to the public hearing. However Hanover County Code § 26-307(c) provides that “amended proffers may be accepted by the Board after the public hearing” “if the amended proffers are more restrictive than the proffers previously submitted. . .”.

Here, the amended proffers submitted to the Board on May 6 were more restrictive than the proffers previously submitted as they limited the types of buildings allowed on the proposed site; enhanced lighting protections to neighboring properties; increased the buffer area and enhanced offsite traffic control by limiting the size of the building.

Evidence

Because homeowners’ counsel stated on the record that he did not object to the trial court’s acceptance of the additional evidence requested in the defendants’ joint motion craving oyer, there is no appealable error before this court. For this reason, homeowners have waived their challenge to the trial court’s acceptance of the additional evidence requested by defendants.

Affirmed.

Morgan v. The Board of Supervisors of Hanover County, Record No. 0576-24-2, March 4, 2025. CAV (Fulton III). From the Circuit Court of Hanover County (Harris). Brian L. Buniva (B.L. Buniva Strategic Advisor, PLLC, on briefs), for appellants. Dennis A. Walter, County Attorney (Rebecca B. Randolph, Deputy County Attorney; Leah D. Han, Senior Assistant County Attorney, on brief), for appellee The Board of Supervisors of Hanover County. Robert W. Loftin (Eugene E. Mathews; Christopher E. Trible; McGuire Woods, LLP, on brief), for appellee Wegmans Food Markets, Inc. VLW 025-7-044. 22 pp.