Present: All the Justices
FRIENDS OF THE RAPPAHANNOCK, ET AL. OPINION BY v. Record No. 120874 JUSTICE LEROY F. MILLETTE, JR. June 6, 2013 CAROLINE COUNTY BOARD OF SUPERVISORS, ET AL.
FROM THE CIRCUIT COURT OF CAROLINE COUNTY Joseph J. Ellis, Judge
The Friends of the Rappahannock ("Friends"), together with
several local landowners and one lessee, (collectively,
"individual complainants") appeal the order of the Circuit Court
of Caroline County sustaining a demurrer and motion to dismiss
to their complaint challenging a Special Exception Permit
("permit") issued by the Caroline County Board of Supervisors
("Board") that approved the use of land adjacent to the
Rappahannock River for a sand and gravel mining operation. We
will affirm the judgment of the circuit court dismissing the
complaint for failure to allege a sufficient basis to
demonstrate standing.
I. Facts and Proceedings
In 2011, the Board issued a permit, subject to certain
enumerated conditions, to appellees Black Marsh Farm, Inc. and
Vulcan Construction Materials, L.P., (collectively, "Black
Marsh") for the development of a sand and gravel mining
operation on a 514 acre tract bordering the Rappahannock River
in Caroline County. Under Article IV, Section 5 of the Zoning Ordinance of Caroline County ("zoning ordinance"), extraction of
natural materials is specifically included as a permitted use in
the applicable Rural Preservation District, but requires
issuance of a permit. After appropriate review, the Board
granted Black Marsh's application and granted a permit subject
to 33 conditions pursuant to Article XVII, Section 13 of the
zoning ordinance.
Friends, a non-profit organization committed to the
preservation of the Rappahannock River, and the individual
complainants challenged the Board's decision to issue the permit
by filing a complaint entitled "Petition for Review and
Complaint for Declaratory Judgment" in the Circuit Court of
Caroline County. Friends alleged that Black Marsh's use of the
river for product transport will interfere with and harm
Friends' interests in water quality protection, preservation of
the river's scenic beauty, and public education efforts in land
use and resource conservation advocacy.
The complaint also alleged bases for standing for each of
the individual complainants. John D. Mitchell holds a leasehold
interest and a right of first refusal in property adjacent to
the Black Marsh site. Mitchell uses the property for duck
hunting, fishing, and river access. Mitchell complains that the
land disturbance, noise and industrial activity at the site will
frighten away the wildlife, prevent or deter new wildlife from
2 entering the area, and render the property useless for hunting,
causing him harm.
Sally Jane Raines Kizer is the owner of 164 acres of
farmland adjacent to the site. A tenant lives in Kizer's
farmhouse. Kizer contends that mining activities at the site
will interfere with her right-of-way to the river, make it more
difficult to find tenants for the farmhouse, and create
problematic noise and airborne particulate conditions. Kizer
also alleges that Black Marsh's permit contains requirements
that are insufficient to ensure that the pond left on the
reclaimed site will not become a stagnant lake and thereby a
nuisance.
The other four individual complainants, Elizabeth Lanyon
Reynolds, Ronald S. Mosley, and Kurt and Brenda Kuberek live
directly across the river in King George County, approximately
1,500 feet away from the Black Marsh property. Each of the
complainants owns a private residence on a one-quarter to one-
third acre lot in a residential development known as Hopyard
Farm, and each residence is separated from the river by
approximately 200 feet of open space owned by the Hopyard Farm
Homeowners' Association. These individual complainants allege
that the industrial activities on the site will end the scenic
beauty of the location. Also, they allege that the activities
will increase noise, dust, and traffic from barges and
3 commercial boats in a manner that will alter their quiet
enjoyment of the area. In addition, the Kubereks allege that
the industrial use of the property will harm their recreational
use of the river for wading and observing wildlife, and that
they are concerned for the long term health and well-being of
their children, one of whom is asthmatic, from the dust and
particulate pollution from the proposed operation.
In response to the complaint, the Board filed a demurrer
and Black Marsh filed a motion to dismiss. The Board and Black
Marsh argued that Friends and the individual complainants lacked
standing to bring the suit because they failed to show they were
aggrieved parties, their alleged injuries were based on
speculative grievances, the facts as pled were insufficient as a
matter of law to grant standing, and they were seeking to
vindicate interests shared by the entire public. Friends and
the individual complainants filed a memorandum in opposition to
the motion to dismiss in which they argued that, under Code
§§ 8.01-184 and 15.2-2285(F), they did not need to show that
they are "aggrieved," but merely that they have a "justiciable
interest."
After a hearing on the matter, the circuit court issued a
letter opinion in which it held that Friends and the individual
complainants lacked standing. In reaching this conclusion, the
court accepted Black Marsh's argument that there is a two-step
4 test to determine standing: first, the court must consider the
complainants' proximity to the objectionable use; and second,
the court must determine whether the challenged use will deny
rights or impose burdens different from those suffered by the
general public. The court held that the claims alleged were not
supported by sufficient facts, and that the allegations were
conclusory and did not show a loss of some personal or property
right "different from that suffered by the public generally."
Friends and the individual complainants declined the
opportunity to amend their pleadings and the circuit court
entered an order sustaining the demurrer and the motion to
dismiss. Friends and the individual complainants filed a
petition for appeal, which the Court granted as to two issues.
In their first assignment of error, Friends and the individual
complainants argue that the circuit court erred in applying the
"aggrieved person" standard in evaluating whether they had
standing to appeal the Board's decision to grant the permit when
the complaint was filed pursuant to the Virginia Declaratory
Judgment Act, which applies the "justiciable interest" test for
standing. In the second assignment of error, which was granted
only as to the individual complainants and not as to Friends,
the individual complainants challenge the circuit court's ruling
that they had alleged only "non-particularized harms"
insufficient for standing.
5 II. Discussion
A. Standard of Review
The standard of review applicable to the circuit court's
decision to sustain a demurrer is well established. "A demurrer
accepts as true all facts properly pled, as well as reasonable
inferences from those facts." Steward v. Holland Family Props.,
LLC, 284 Va. 282, 286, 726 S.E.2d 251, 253-54 (2012). A
demurrer, however, does not admit "inferences or conclusions
from facts not stated." Arlington Yellow Cab Co. v.
Transportation, Inc., 207 Va. 313, 319, 149 S.E.2d 877, 881
(1966) (internal quotation marks and citation omitted).
At the demurrer stage, it is not the function of the trial
court to decide the merits of the allegations set forth in a
complaint, but only to determine whether the factual allegations
pled and the reasonable inferences drawn therefrom are
sufficient to state a cause of action. Riverview Farm Assocs.
Va. Gen. P'ship v. Bd. of Supervisors of Charles County, 259 Va.
419, 427, 528 S.E.2d 99, 103 (2000). To survive a challenge by
demurrer, a pleading must be made with "sufficient definiteness
to enable the court to find the existence of a legal basis for
its judgment." Eagle Harbor, L.L.C. v. Isle of Wight County,
271 Va. 603, 611, 628 S.E.2d 298, 302 (2006) (internal quotation
marks omitted). "A trial court's decision sustaining a demurrer
6 presents a question of law which we review de novo." Harris v.
Kreutzer, 271 Va. 188, 196, 624 S.E.2d 24, 28 (2006).
B. Whether the Circuit Court Erred in Applying the "Aggrieved Person" Standard to Determine Standing
Friends and the individual complainants argue that the
appropriate analysis of standing in declaratory judgment
actions, as expressed in Cupp v. Board of Supervisors of Fairfax
County, 227 Va. 580, 590, 318 S.E.2d 407, 412 (1984), is whether
the complaining party has a "justiciable interest" in the
subject matter of the suit. Thus, Friends and the individual
complainants contend that the circuit court inappropriately
applied an "aggrieved person" standard to the declaratory
judgment action in the case at bar because such a standard is
not present in either the Court's precedent or within the
language of Code §§ 8.01-184 or 15.2-2285(F). * Further, they
contend that our decision in Braddock, L.C. v. Board of
* Under Code § 15.2-2285(F), a decision of a Board of Supervisors in granting or failing to grant a special exception may be challenged in the circuit court:
Every action contesting a decision of the local governing body adopting or failing to adopt a proposed zoning ordinance or amendment thereto or granting or failing to grant a special exception shall be filed within thirty days of the decision with the circuit court having jurisdiction of the land affected by the decision. However, nothing in this subsection shall be construed to create any new right to contest the action of a local governing body.
7 Supervisors of Loudoun County, 268 Va. 420, 601 S.E.2d 552
(2004), in which we discussed a requirement that neighbors
bringing suit to challenge rezoning be "aggrieved" to have
standing, and upon which Black Marsh relies, is irreconcilable
with the authorities on which it is based.
Black Marsh, however, argues that the "justiciable
interest" and "aggrieved person" standards are not incompatible
with each other in a land use case. Black Marsh therefore
contends that the circuit court did not err in defining a
justiciable controversy by using an "aggrieved person" standard,
and argues that the term "aggrieved" requires having a
sufficient proximity to the property subject to the land use
decision and an allegation of particularized harm not shared by
the general public.
Implicit in the argument of Friends and the individual
complainants is the contention that an "aggrieved person"
standard provides for a more restrictive basis for standing than
the requirement of a justiciable interest in a declaratory
judgment action in the challenge of a land use decision. We
disagree.
We have recently addressed the general principles requiring
a complainant to assert a justiciable controversy for a circuit
court to exercise its authority in a declaratory judgment
action. See Charlottesville Area Fitness Club Operators Ass'n
8 v. Albemarle County Bd. of Supervisors, 285 Va. 87, 737 S.E.2d 1
(2013). Code § 8.01-184, the "statutory authority for
declaratory judgment proceedings," authorizes jurisdiction "[i]n
cases of actual controversy." Charlottesville Area Fitness, 285
Va. at 97-98, 737 S.E.2d at 6. As "[t]he purpose of a
declaratory judgment proceeding is the adjudication of rights[,]
an actual controversy is a prerequisite to a court having
authority." Id. at 98, 737 S.E.2d at 6. The pleadings,
therefore, must allege an "actual controversy" existing between
the parties based upon an "actual antagonistic assertion and
denial of right." Code § 8.01-184; see also Charlottesville
Area Fitness, 285 Va. at 98, 737 S.E.2d at 6.
A complainant "must establish a justiciable interest by
alleging facts demonstrat[ing] an actual controversy . . . such
that [the complainant's] rights will be affected by the outcome
of the case." Charlottesville Area Fitness, 285 Va. at 98, 737
S.E.2d at 7 (second alteration added) (internal quotation marks
omitted); see also Cupp, 227 Va. at 590, 318 S.E.2d at 412
(holding that the parties had a direct stake in challenging an
ordinance applicable to their nursery business because the
ordinance would have impacted what they could sell in their
business and required donation of a portion of their land to the
county); Board of Supervisors v. Fralin & Waldron, Inc., 222 Va.
218, 224, 278 S.E.2d 859, 862 (1981) (determining that an option
9 holder on certain land sales contracts had standing to challenge
rezoning of the property on which it held options); but see
Deerfield v. City of Hampton, 283 Va. 759, 766, 724 S.E.2d 724,
727 (2012) (holding that a committee formed under the city
charter had no standing because it had no rights under the
charter to file suit challenging a proposed land use after the
purpose for which the committee had been formed had ceased to
exist).
The cases cited above address the "justiciable interest"
requirement in declaratory judgment actions challenging land use
decisions. The particular statutory requirement, however, for
standing in the context of a challenge to a land use decision by
a board of zoning appeals is that the party be aggrieved:
Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any aggrieved taxpayer or any officer, department, board or bureau of the locality, may file with the clerk of the circuit court for the county or city a petition . . . specifying the grounds on which aggrieved within 30 days after the final decision of the board.
Code § 15.2-2314 (emphasis added.) Although the text of Code
§ 15.2-2314 refers only to a board of zoning appeals, we have
previously applied the same standard to actions originating from
land use decisions made by local governing bodies. See
Deerfield, 283 Va. at 762, 767, 724 S.E.2d at 725, 728 (applying
the "aggrieved person" standard to a city's decision to allow a
10 development of a residential subdivision on a portion of a
beach); Braddock, 268 Va. at 422-25, 601 S.E.2d at 552-54
(applying the "aggrieved person" standard to a party's challenge
to a board of supervisors' denial of its application to rezone
two tracts of land). Additionally, we have stated that it would
be inconsistent to interpret the statutory section governing
appeals from boards of supervisors differently from the
statutory section governing appeals from boards of zoning
appeals. Friends of Clark Mtn. Found. v. Board of Supervisors
of Orange County, 242 Va. 16, 22, 406 S.E.2d 19, 22 (1991).
We further disagree with complainants' argument that
Braddock is inconsistent with the authorities on which it is
based. In that case, when Braddock challenged a board of
supervisors' denial of its application to rezone two tracts of
land, we first considered whether Braddock had an ownership
interest in the subject property. 268 Va. at 422-23, 601 S.E.2d
at 552-53. We then addressed whether Braddock, as a non-owner,
nonetheless had standing. In determining that Braddock, as a
non-owner, had no standing to challenge the denial of rezoning,
we indicated that "a party, to have standing, must show that he
has been aggrieved by the judgment or decree appealed from."
Id. at 425, 601 S.E.2d at 554 (emphasis added) (internal
quotation marks and citation omitted). Because Braddock did not
have an interest in the entire property subject to rezoning at
11 the time of the filing of the suit, having assigned its right to
purchase a portion of the land, and subsequently having neither
a proprietary or a legal right affected by the rezoning, it "was
not injuriously affected by the Board's refusal to rezone." Id.
at 426, 601 S.E.2d at 554.
We affirmed in a recent case that the "aggrieved person"
standard is appropriate in the context of a challenge to a land
use decision by means of a declaratory judgment action. See
Deerfield, 283 Va. at 762, 767, 724 S.E.2d at 725, 728. In
Deerfield, appellants, members of the Committee of Petitioners
of the Buckroe Beach Bayfront Park Petition, initiated a
declaratory judgment action challenging the City's decision to
allow the development of a residential subdivision on a portion
of Buckroe Beach. Id. at 761-62, 724 S.E.2d at 725. In
reaching our conclusion, we employed both the declaratory
judgment "justiciable interest" language and the "aggrieved
person" standard. We held that the Committee lacked standing
because it did not maintain an "ongoing justiciable right or
interest that could be aggrieved by the development of the
Buckroe Beach Property such as would give rise to legal standing
by the Committee to challenge the development in a declaratory
judgment action." Id. at 767, 724 S.E.2d at 728 (emphasis
added.)
12 As evidenced by our analysis herein, any distinction
between an "aggrieved party" and "justiciable interest" is a
distinction without a difference in declaratory judgment actions
challenging land use decisions. Accordingly, the circuit court
did not err in applying the "aggrieved person" standard to
determine standing in Friends and the individual complainants'
declaratory judgment action challenging the Board's land use
decision.
C. Whether Pleadings Sufficient to Allege Standing
To show a justiciable controversy sufficient to establish a
claim for declaratory judgment, the individual complainants must
articulate legally enforceable rights, and courts must be able
to evaluate those claims of right.
Unlike a challenge to a land use decision by a party
claiming an ownership interest in the subject property where the
affected property right is readily apparent, a party who claims
no ownership interest in the subject property has standing to
file a declaratory judgment action challenging the land use
decision only if it can satisfy a two-step test. 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."
13 Virginia Beach Beautification Comm'n v. Board of Zoning Appeals,
231 Va. 415, 420, 344 S.E.2d 899, 902-03 (1986).
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." Virginia Marine Res. Comm'n v. Clark, 281 Va. 679,
687, 709 S.E.2d 150, 155 (2011) (internal quotation marks
omitted); see also Virginia Beach Beautification Comm'n, 231 Va.
at 419-20, 344 S.E.2d at 903 (indicating that complainants must
demonstrate that they stand to suffer a particularized harm not
shared by the general public). Complainants do not need to
establish that the particularized harm has already occurred.
Charlottesville Area Fitness, 285 Va. at 98, 737 S.E.2d at 11-12
("The General Assembly created the power to issue declaratory
judgments to resolve disputes before the right is violated.")
(internal quotation marks omitted). Absent an allegation of
injury or potential injury not shared by the general public,
complainants have not established standing to bring a
declaratory judgment action in a land use case.
When applying these requirements to the case at bar, and
assuming without deciding that the individual complainants all
hold property interests sufficiently proximate to the Black
Marsh site, each is still required to plead facts sufficient to
14 claim particularized harms to rights not shared by the general
public. It is in this requirement that the pleading of each
individual complainant fails.
The site in question was already zoned for industrial use,
and sand and gravel extraction activities are permitted subject
to any conditions imposed by the permit approved by the Board.
The individual complainants have not tied their allegations of
harm to any activity of Black Marsh, either by reference to the
inadequacy of the conditions imposed by the permit or otherwise.
Although the individual complainants presented conclusory
allegations as to possible harms, the general objections pled by
the individual complainants present no factual background upon
which an inference can be drawn that Black Marsh's particular
use of the property would produce such harms and thus impact the
complainants. Thus, the individual complainants have not met
their burden to provide sufficient facts in their complaint to
allege how this particular use, Black Marsh's sand and gravel
extraction site, causes the loss of some personal or property
right belonging to the individual complainants different from
the public in general.
Indeed, the individual complainants failed to offer any
factual background from which to infer that the proposed mining
operation would cause sufficient noise, particulate matter, or
pollution off site to cause actual harm. Rather, the permit
15 attached to the complaint imposing conditions for operation of
the project requires that Black Marsh adhere to county
restrictions regarding pollution, particulate matter, and noise.
The individual complainants do not allege any facts to indicate
that the conditions imposed by the permit would be inadequate to
protect their property rights.
The individual complainants rely heavily on Riverview, in
which we recognized that certain landowners had standing, noting
that their location within 2,000 feet of the proposed use meant
that they lived within sufficient proximity to have a
"justiciable interest." Riverview, 259 Va. at 427, 528 S.E.2d
at 103. As we have reiterated today, however, proximity alone
is insufficient to plead a "justiciable interest" in a
declaratory judgment action appealing a land use decision. To
demonstrate standing, a complaint must also allege sufficient
facts showing harm to some personal or proprietary right
different than that suffered by the public generally.
Unlike the Black Marsh site, the property in question in
Riverview was not already zoned for industrial use, but rather
commercial use, and the land use decision complained of was a
rezoning. Id. at 422-23, 528 S.E.2d at 100-01. Furthermore,
plaintiffs in Riverview included in their complaint a laundry
list of particularized harms, including: (1) that they already
experienced noise and disturbances from the 300 trucks a day on
16 adjacent roadways, which number would double to up to 600 under
the proposal; (2) that the United States Coast Guard had
conducted a study indicating that liquid leakage, "garbage
juice," was draining off of a barge and into the river; and (3)
that Virginia Department of Environmental Quality officials
found contaminated liquid spilling from garbage containers being
loaded onto barges. Second Amended Complaint at 12, 18-19,
Riverview Farm Assocs. v. Board of Supervisors, 259 Va. 419, 528
S.E.2d 99 (2000) (Record No. 990853).
Here, the complaint filed by the individual complainants,
who were given leave to amend but decided against amendment,
does not allege any factual basis for the individual
complainants' concerns of off-site effects caused by the sand
and gravel operation. As a result, we conclude that the
individual complainants have failed to meet their burden of
alleging the particularized harms required to survive a
demurrer.
III. Conclusion
For the reasons stated, we hold that the circuit court did
not err in applying the aggrieved party standard in determining
standing in a declaratory judgment action challenging a local
governing body's land use decision. We further hold that, based
upon the insufficiency of allegations in their complaint, the
17 individual complainants did not have standing to proceed. Thus,
we will affirm the circuit court's judgment.
Affirmed.