Frances B. Crutchfield v. State Water Control Board

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Coleman Argued at Richmond, Virginia

FRANCES BROADDUS CRUTCHFIELD AND HENRY RUFFIN BROADDUS MEMORANDUM OPINION * BY v. Record No. 1095-01-2 JUDGE SAM W. COLEMAN III APRIL 2, 2002 STATE WATER CONTROL BOARD, DEPARTMENT OF ENVIRONMENTAL QUALITY AND COUNTY OF HANOVER, VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes, Jr., Judge

Benjamin A. Thorp IV (William B. Ellis; Ellis & Thorp, P.L.L.C., on briefs), for appellants.

John R. Butcher, Senior Assistant Attorney General; Barbara M. Rose, Deputy County Attorney (Randolph A. Beales, Attorney General; Sterling E. Rives III, County Attorney; Yvonne Wellford, Senior Assistant County Attorney, on brief), for appellees.

Frances Broaddus Crutchfield and Henry Ruffin Broaddus,

appellants, appeal a decision of the trial court finding that

Crutchfield and Broaddus lack standing to appeal a decision of the

State Water Control Board (SWCB) to issue a permit to Hanover

County (the County) for the discharge of treated sewage into the

Pamunkey River. Appellants also contend the trial court abused

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. its discretion in refusing to allow them to file an amended

petition for appeal setting forth more detailed allegations of the

damage to the appellants' property. The SWCB and the County

contend the trial court erred in allowing appellants to file an

amended petition for appeal adding the County as a party when the

County had not been named as a party in the initial appeal. We

find that appellants have standing to contest the issuance of the

permit and that the trial court abused its discretion in refusing

to allow appellants to file an amended petition for appeal setting

forth more detailed allegations of their claimed damages. We

further find that the County did not object in the trial court to

being named a party to the appeal and the County cannot raise the

issue for the first time here. Therefore, we reverse the

decisions of the trial court and remand the case for hearings and

a decision on the merits.

BACKGROUND

Appellants own Newcastle Farm (the farm), an 878 acre

property located in Hanover County. The farm, which has been in

the Broaddus family for six generations, has several miles of

river frontage along the Pamunkey River. The farm contains the

remains of a colonial era town which is listed as a Virginia

Historic Landmark and a portion of Marlbourne, a former

plantation, which is listed on the National Historic Landmark

Registry.

- 2 - On April 28, 1999, the SWCB granted the County a Virginia

Pollution Discharge Elimination System permit (the permit). The

permit allows the County to discharge up to ten million gallons

per day of wastewater into the Pamunkey River from an outfall

located on appellants' farm. The project also includes a buried

thirty-six inch pipe that will transport the waste to the outfall

across appellants' farm.

In January 1999, the SWCB held a public hearing on the

County's pending application. Appellants presented evidence at

the hearing, and, on February 4, 1999, they submitted written

comments to the SWCB. The comments explained appellants'

opposition to the project based on their concerns that the

proposed discharge would adversely affect the river's already

impaired water quality and would cause damage to fish and other

wildlife.

The parties agree that the Pamunkey River below the proposed

discharge site has experienced problems with dissolved oxygen

levels falling below the standard established for the river.

Furthermore, they agree that the proposed discharge will contain

oxygen demanding pollutants which can contribute to low dissolved

oxygen levels.

On June 28, 1999, appellants filed a petition for appeal in

the Richmond Circuit Court alleging that the permit was issued in

violation of state water control law. Appellants requested that

the trial court find the permit invalid and void. The petition

- 3 - identified appellants as the owners of the property which is the

site of the proposed outfall and discharge. The petition

specifically alleged that the proposed discharge would harm the

water quality of the already impaired Pamunkey River, would harm

fish and other animal life, and would impair the use of the river

for recreation. Appellants attached as an exhibit to the petition

a February 4, 1999 letter containing their written comments to

SWCB concerning the project. In the letter, appellants also

alleged the proposed plan would adversely affect significant,

documented historic resources on the farm.

On July 23, 1999, the SWCB filed a demurrer to the appeal,

alleging that the petition failed to name a necessary party, the

County. The SWCB also alleged that appellants lacked standing to

appeal the issuance of the permit because they failed to allege

injury or damage to their personal interests. At a hearing held

on April 26, 2000 on the demurrer, appellants argued that the

initial petition contained sufficient allegations to confer

standing in the case, but in the event the trial court decided

otherwise, they requested leave to amend the original petition to

include a more detailed accounting of the injuries and damage that

would be sustained by them as a result of the proposed discharge.

They also requested leave to amend the petition to add the County

as a party.

In a letter opinion dated May 24, 2000, the trial court

rejected the positions of the SWCB, found that appellants had

- 4 - standing in the case, and granted leave to appellants to amend the

petition to add the County as a party. The trial court found that

the February 4, 1999 letter contained sufficient allegations of

injury and damage directly to appellants by alleging that the

proposed project would injure the historic resources located on

appellants' farm. The trial court also found that the initial

petition and the February 4, 1999 letter failed to include

sufficient allegations of injury or damage to appellants'

aesthetic or recreational interests. The trial court entered an

order on June 14, 2000 granting leave to appellants to amend their

petition to name the County as a party.

On June 30, 2000, appellants filed a First Amended Petition

for Appeal (amended petition), naming the County as a party and

adding several paragraphs that were not included in the original

petition further expounding on the injuries and damage they

contend would result from the issuance of the permit. In the

amended petition, appellants described themselves as "riparian"

co-owners of the farm. Appellants also added paragraphs stating

that they personally use the river for recreational activities,

such as swimming, boating, fishing, and canoeing and that they

would cease to use the river at and near the proposed discharge

location site for these recreational activities if the sewage

outfall was located as proposed. In addition, appellants alleged

in the amended petition that the project would damage the

aesthetic interests of the farm.

- 5 - The SWCB and the County each filed a motion to strike all of

the new allegations in the amended petition. The SWCB requested

that the trial court strike the amended petition and direct

appellants to file an amended petition in conformance with the

court's June 14, 2000 order. In its motion to strike, the County

conceded that the June 14, 2000 trial court order granted leave to

appellants to amend the petition to name the County as a party.

Furthermore, in its motion to strike, the County asserted that

appellants amended the petition to add allegations that were not

authorized by the court's order and letter opinion. The County

requested only that appellants be directed to file an amended

petition in conformance with the trial court's June 14, 2000 order

and May 24, 2000 letter opinion, raising no objection to the trial

court's ruling granting leave to appellants to name the County as

a party. The SWCB also sought leave to take the depositions of

appellants regarding the standing issue.

At a hearing held on September 13, 2000, the trial court

granted the motions to strike the new allegations in the amended

petition. Appellants renewed their motion to file an amended

petition containing the additional allegations of injury. The

trial court asked, "[H]aving found that the [original] petition

was sufficient on its face, and . . . having overruled the

[SWCB's] demurrer, why do you need these additional allegations?"

Appellants asserted that the SWCB was continuing to contest the

issue of standing because it requested to take their depositions.

- 6 - Therefore, appellants averred that the additional allegations in

the amended petition would clarify the standing issue. Indeed,

counsel for the SWCB later stated that the purpose of taking the

depositions was to gather information from appellants concerning

the standing issue. The trial court granted the SWCB's motion for

leave to take depositions of appellants and denied appellants'

motion to amend the petition.

At a hearing held on November 9, 2000, the SWCB argued that

appellants had not proved they had standing to contest the

issuance of the permit. The SWCB argued that appellants' original

petition pled standing based only on their claim that the project

would injure historic resources. The SWCB then asserted that

appellants' testimony in the depositions showed that a consultant

had indicated that the project would not affect the historical

resources located on the property. Furthermore, the SWCB asserted

that appellants indicated in their depositions that they would

cease their recreational uses of the river even if the project

discharged water that met drinking water standards and that

appellants objected to the project whether or not it met water

quality standards.

On March 15, 2001, the trial court issued another letter

opinion finding that "standing, although sufficiently alleged, has

not been proved." The trial court dismissed the case on that

ground. The trial court found that appellants' sole averment in

the original petition had been damage to historic sites. However,

- 7 - appellants' depositions had revealed that a cultural resource

study concluded the project "will not have an effect on the

location, setting or use that contributes to Marlbourne's

significance." In addition, the trial court found that whatever

injuries appellants claimed, such claims amounted only to

"'abstract distress'" and were insufficient to confer standing.

Appellants appeal the trial court's decision that they lack

standing.

I. STANDING

"In analyzing a decision on Article III standing, we review

the [trial] court's factual findings for clear error. We

consider the legal question of whether [appellants] possess[]

standing to sue as a de novo matter." Piney Run Pres. Ass'n v.

County Comm'rs, 268 F.3d 255, 262 (4th Cir. 2001). The elements

of standing are "not mere pleading requirements," but must be

supported by sufficient evidence. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

Code § 62.1-44.29 provides that any person who has

participated, in person or by submittal of written comments, in

the public comment process related to a final decision of the SWCB

to issue a Virginia Pollution Discharge Elimination System permit

is entitled to judicial review thereof if such person meets the

standard for obtaining judicial review of a case or controversy

under Article III of the United States Constitution.

- 8 - A person shall be deemed to meet such standard if (i) such person has suffered an actual or imminent injury which is an invasion of a legally protected interest and which is concrete and particularized; (ii) such injury is fairly traceable to the decision of the [SWCB] and not the result of the independent action of some third party not before the court; and (iii) such injury will likely be redressed by a favorable decision by the court.

Code § 62.1-44.29.

"[W]hen the suit is one challenging the legality of government action . . ., the nature and extent of facts that must be averred . . . in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action . . . at issue. If he is, there is ordinarily little question that the action . . . has caused him injury, and that a judgment preventing . . . the action will redress it."

Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 376-77, 541

S.E.2d 920, 925 (2001) (quoting Lujan, 504 U.S. at 561-62).

We find that the original petition for appeal sufficiently

alleged the elements of standing and that appellants' deposition

testimony further proved they had standing in the case. The

original petition stated that appellants are co-owners of the

property located on the Pamunkey River. The treated sewage

outfall will be located on appellants' property, and the sewage

will be discharged from this outfall into the waters of the

Pamunkey River.

"'Riparian land' is land which is contiguous to and touches

a watercourse." Code § 62.1-104(5). "'Riparian owner' is an

- 9 - owner of riparian land." Code § 62.1-104(6). The rights of a

riparian owner include "'[t]he right to make a reasonable use of

the water as it flows past or leaves the land.'" Thurston v.

City of Portsmouth, 205 Va. 909, 912, 140 S.E.2d 678, 680 (1965)

(citation omitted). Riparian rights also include "'[t]he right

to be and remain a riparian proprietor and to enjoy the natural

advantages thereby conferred upon the land by its adjacency to

the water.'" Id. at 911-12, 140 S.E.2d at 680 (citation

omitted).

The original petition and the February 4, 1999 letter

alleged harm to resources to which riparian owners have a

recognized legal right. The February 4, 1999 letter states that

several speakers commented at the public hearing concerning

their recreational uses of the river immediately downstream from

the proposed discharge site. The letter further states, "Those

using this area are not limited to the property owners."

Clearly, this statement indicates that appellants use the river

for recreational activities. Indeed, in their depositions,

which were considered by the trial court in deciding this issue,

appellants confirmed that they use the river for swimming,

boating, and fishing and that the location of the outfall would

adversely affect their recreational use of the river and the

aesthetic value of the river. These allegations show more than

"abstract distress" or "'general averments'" of injury to

others. See Friends of the Earth v. Laidlaw Envtl Servs., Inc.,

- 10 - 528 U.S. 167, 183 (2000) (citation omitted) (Court found

standing where plaintiffs' "reasonable concerns about the

effects of . . . discharges directly affected [their]

recreational [and], aesthetic interests" and were more than

"'general averments'" and "'conclusory allegations'").

Furthermore, "[a] plaintiff can show an 'injury in fact'

when he or she suffers 'an invasion of a legally protected

interest which is concrete and particularized, as well as actual

or imminent.'" Piney Run, 268 F.3d at 263 (citation omitted).

"[A] plaintiff need only show that he used the affected area,

and that he is an individual 'for whom the aesthetic and

recreational values of the area [are] lessened' by the

defendant's activity." Id. (citation omitted). Moreover, the

Fifth Circuit has held that citizens' concerns about water

quality sufficed as an injury in fact where two of the affiants

lived near the affected water and used the water for

recreational activities. The Court stated that it was

sufficient to confer standing where "the affiants expressed fear

that the discharge . . . will impair their enjoyment of these

activities because these activities are dependent upon good

water quality. Clearly, [the] affiants have a direct stake in

the outcome of this lawsuit." Sierra Club v. Cedar Point Oil

Co., 73 F.3d 546, 556 (5th Cir. 1996). See also Sierra Club v.

Morton, 405 U.S. 727, 735 (1972) (plaintiffs adequately allege

injury in fact when they aver they use affected area and are

- 11 - persons "for whom the aesthetic and recreational values of the

area will be lessened" by challenged activity); Friends of the

Earth v. Gaston Copper Recycling Corp., 204 F.3d 149, 159 (4th

Cir. 2000) (allegations that plaintiffs use affected area and

aesthetic and recreational values would be decreased by

challenged activity sufficient for injury in fact).

Appellants have also met the "causation" prong of standing

criteria. The injuries they have alleged are "fairly traceable"

to the decision of the County to discharge sewage into the

Pamunkey River from an outfall located on appellants' property

and the decision of the SWCB to issue the discharge permit to

the County. The injuries are not the result of a third party

not before the court. See Mattaponi Indian Tribe, 261 Va. at

377, 541 S.E.2d at 925-26. Indeed, the parties agree that the

river below the discharge site has experienced problems with

dissolved oxygen levels and that the sewage discharge will

contain oxygen demanding pollutants which can contribute to low

dissolved oxygen levels.

Furthermore, the injuries alleged would be redressed by a

favorable decision of the court if the trial court declared that

the permit was issued illegally and was therefore void.

Accordingly, appellants have standing to challenge the issuance

of the permit.

- 12 - II. AMENDED PETITION

The original petition alleged that the project would cause

damage to historic resources on the property. Initially, the

trial court found that those allegations were sufficient to

confer standing. However, the trial court later reversed

itself, finding that a cultural resources study indicated that

historic resources on the property would not be affected by the

project. Prior to the trial court's decision that appellants

lacked standing, appellants requested leave to amend the

petition in order to make further allegations as to the injuries

they would suffer as a result of the project. However, the

trial court denied the request. We find that the trial court

abused its discretion in denying appellants leave to amend the

petition to add allegations of injury.

Rule 1:8 provides that "[l]eave to amend [any pleading]

shall be liberally granted in furtherance of the ends of

justice." "[T]he decision to permit a party to amend a pleading

is discretionary with the trial court. It is reviewable by this

Court only for an abuse of that discretion." Thompson v.

Thompson, 6 Va. App. 277, 281, 367 S.E.2d 747, 750 (1988).

The original petition and the amended petition both arose

in the context of appellants' challenge to the decision of the

SWCB to issue the permit to the County. Both the original and

amended petitions requested the same relief--that the trial

court declare that the permit was issued in violation of state

- 13 - law and was therefore invalid. The amended petition did not

state a completely new case and was sufficiently related to the

original petition. See Rosenberg v. Rosenberg, 210 Va. 44, 47,

168 S.E.2d 251, 253 (1969) (finding trial court erred in

refusing to grant leave to husband to file amended bill of

complaint in divorce action). The amended petition merely

contained detailed allegations concerning the injuries

appellants purportedly would suffer as a result of the project.

Furthermore, appellants' deposition testimony supported these

allegations of injury. Accordingly, the trial court abused its

discretion in refusing to allow appellants to file the amended

petition for appeal.

III. THE COUNTY AS A PARTY

The SWCB and the County argue that the County is a

necessary party to the action, but that, pursuant to the time

limitations of Rule 2A:4, the trial court was without authority

to grant appellants leave to amend the petition for appeal to

add the County as a party.

"'Where an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy, which is likely either to be defeated or diminished by the plaintiff's claim, in such case he has an immediate interest in resisting the demand, and all persons who have such immediate interests are necessary parties to the suit.'"

- 14 - Asch v. Friends of the Cmty. of Mount Vernon Yacht Club, 251 Va.

89, 90-91, 465 S.E.2d 817, 818 (1996) (citations omitted).

The County, as the permittee, has an immediate interest in

the outcome of the suit and is a necessary party to the action.

See Browning-Ferris Indus. v. Residents Involved in Saving the

Environment, Inc., 254 Va. 278, 282-83, 492 S.E.2d 431, 434

(1997). Furthermore, appellants' failure to name the County in

the original petition is not fatal pursuant to Rule 2A:4. Rule

2A:4(a) requires an appellant to file a petition for appeal

within thirty days of filing the notice of appeal. This Court

has held that the time limitation in Rule 2A:4 is mandatory and

the trial court is not authorized to extend the time limits.

Mayo v. Dep't of Commerce, 4 Va. App. 520, 524, 358 S.E.2d 759,

762 (1987). However, here, appellants timely filed a petition

for appeal, and, pursuant to Rule 1:8, the trial court had

discretion to grant leave to appellants to amend the petition to

name the County as a party. Thus, the failure to name the

County in the original petition was not a jurisdictional defect

in the pleading.

Furthermore, the record contains no objection or pleading

filed by the County raising an objection to being added as a

party to the suit. The County filed an answer to appellants'

amended petition. Moreover, in its motion to strike the amended

petition for appeal, the County requested only that appellants

be directed to file an amended petition for appeal that

- 15 - conformed with the trial court's June 14, 2000 order granting

leave to appellants to amend the petition to name the County as

a party. Accordingly, the County has waived any objection to

being named as a party.

For the foregoing reasons, we reverse the trial court's

ruling that appellants lack standing to appeal the issuance by

the SWCB of the permit. We also reverse the trial court's

decision refusing appellants leave to file the amended petition

for appeal to add further allegations of injury, and we remand

the case to the trial court for trial upon the merits of

appellants' claims.

Reversed and remanded.

- 16 -