Friends Rappahannock v. Caroline Cnty. Bd. of Supervisors

• Decision Date: 06 June 2013
• Docket Number: Record No. 120874.
• Citation: 286 Va. 38,743 S.E.2d 132
• Parties: FRIENDS OF THE RAPPAHANNOCK, et al. v. CAROLINE COUNTY BOARD OF SUPERVISORS, et al.
• Court: Virginia Supreme Court

286 Va. 38

743 S.E.2d 132

FRIENDS OF THE RAPPAHANNOCK, et al.

v.CAROLINE COUNTY BOARD OF SUPERVISORS, et al.

Record No. 120874.

Supreme Court of Virginia.

June 6, 2013.

David S. Bailey, Manassas (Jennifer French; Tammy L. Belinsky, Copper Hill; Environmental Law Group, on briefs), for appellants.

M. Ann Neil Cosby, Richmond (L. Lee Byrd, Richmond; Sands Anderson, on brief), for appellee Board of Supervisors of Caroline County.

John R. Walk, Richmond (Charles W. Payne, Jr., Fredericksburg; Jaime B. Wisegarver, Richmond; Hirschler Fleischer, on brief) for appellees Black Marsh Farm, Inc. and Vulcan Constructions Materials, L.P.

Present: All the Justices.

Opinion by Justice LEROY F. MILLETTE, JR.

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 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 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 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.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 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 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...