Posted by: Patricia Salkin | June 21, 2013

Va. Supreme Court Upholds Decision that Environmental Group and Local Residents Lack Standing to Challenge Special Use Exception.

A non-profit group, set up for the purpose of protecting the serenity of the Rappahannock River in Caroline County, Virginia, sued the County Board of Supervisors to negate the approval of a special exception permit, allowing a company to operate a sand and gravel mining operation along the river. The group, Friends of the Rappahannock (Friends), along with individual complaintants, filed a “Petition for Review and Complaint for Declaratory Judgment” in the Circuit Court of Caroline County after the Board of Supervisors (Board) granted a special use exception, subject to 33 conditions, for the mining operation. Extraction of natural minerals is specifically included as a permitted use in the applicable “Rural Preservation District”, but it requires the issuance of a permit, which conditions may be placed upon approval.

Friends alleged that Black Marsh’s (the company) use of the river for product transport will interfere and harm their interests in water quality protection, preservation of the river’s scenic beauty and public education efforts in land use and resource conservation advocacy. The individual complaintants joined in the suit include landowners and leaseholders on adjacent properties and other closely located parcels and they alleged the site would cause land disturbance, with noise and industrial activity scaring away wildlife therefore making it impossible to hunt, along with concerns that a pond on the site will become a stagnant lake, and thereby a nuisance and issues with the alleged destruction of the scenic beauty of the location.  Black Marsh filed a motion to dismiss, arguing that Friends and the individual complainants lacked standing to bring suit because they failed to show they were aggrieved parties, that their alleged injuries were based on speculation and they were seeking to vindicate interests shared by the entire public. The Circuit Court held that Friends and the individual complaintants lacked standing and they appealed.

Friends argued that the appropriate standard is “whether the complaining party has a justiciable interest in the subject matter of the suit.” Black Marsh argued that the “justiciable interest” and “aggrieved person” standards are not incompatible in land use cases. The Court agreed with Black Marsh, rejecting the implication in Friends’ argument that the aggrieved person standard is a more restrictive basis for standing by providing examples from non-land use cases of how the “justiciable interest standard” is used to determine standing, while standing in land use cases is determined statutorily  in Virginia (“Any person or persons jointly or severally aggrieved by any decision…” (Code §15.2-2314)). The Court says that because parties need to present actual controversies in order to receive standing, and because actual controversies involve one party’s legal rights being aggrieved by another, the standards are compatible and therefore the circuit court did not err in using the “aggrieved person” standard.

With respect to the issue of non-particularized harms, the Court repeated the two-part test: whether the parties own or occupy real property within close proximity to the property that is the subject of the land use determination and thus establishing that they have a direct, immediate, pecuniary and substantial interest in the decision; and whether the complaintants have alleged facts demonstrating to a particular harm to some personal or property right, legal or equitable, or the imposition of a burden or obligation different from that suffered by the public generally . The Court willingly acknowledged the claimants met the first criteria as the farthest one claimant resides from the property is approximately 1,500 feet.  As to the second prong, the Court agreed with the Circuit Court that the complaintants have not alleged any specialized harm. The Court noted that the site where Black Marsh will operate was already zoned for industrial use and the general objections pled present no factual background that the particular use would produce such harms. Therefore, not only had the individual complaintants not alleged specialized harm, but they provided no evidence that any harm would occur at all. Their entire argument was speculative.

Friends of the Rappahannock v. Caroline County Board of Supervisors, 2013 WL 2443349 (Va. 6/6/2013)

The opinion may be accessed at

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