Peed v. Virginia Department of Transportation, 011221 VACA, 0767-20-4

Docket Nº:0767-20-4
Opinion Judge:MARY BENNETT MALVEAUX JUDGE
Party Name:SARAH ELLIS PEED v. VIRGINIA DEPARTMENT OF TRANSPORTATION AND WASHINGTON GAS LIGHT COMPANY
Attorney:Isak Howell (Howell Law Office, on briefs), for appellant. E. Scott Moore, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; Julie M. Whitlock, Senior Assistant Attorney General/Section Chief, on brief), for appellee Virginia Department of...
Judge Panel:Present: Judges Beales, Malveaux and Senior Judge Clements Argued by videoconference
Case Date:January 12, 2021
Court:Court of Appeals of Virginia

SARAH ELLIS PEED

v.

VIRGINIA DEPARTMENT OF TRANSPORTATION AND WASHINGTON GAS LIGHT COMPANY

No. 0767-20-4

Court of Appeals of Virginia

January 12, 2021

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Thomas P. Mann, Judge

Isak Howell (Howell Law Office, on briefs), for appellant.

E. Scott Moore, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; Julie M. Whitlock, Senior Assistant Attorney General/Section Chief, on brief), for appellee Virginia Department of Transportation.

Michael S. Dingman (Shane M. Murphy; S. Miles Dumville; Douglas Pittman; Reed Smith LLP, on brief), for appellee Washington Gas Light Company.

Present: Judges Beales, Malveaux and Senior Judge Clements Argued by videoconference

OPINION

MARY BENNETT MALVEAUX JUDGE

Sarah Ellis Peed ("appellant") appeals an order of the Fairfax Circuit Court ("circuit court") granting the Virginia Department of Transportation's ("VDOT") motion to dismiss and sustaining the Washington Gas Light Company's ("WGL") demurrer on the basis that she lacked standing to appeal. Appellant argues that the circuit court erred in granting the motions because she was a party to and was aggrieved by VDOT's case decision. For the following reasons, we affirm the decision of the circuit court.

I. BACKGROUND

On January 20, 2020, appellant filed a petition for appeal in the circuit court in reference to VDOT's approval of WGL's application for a land use permit.[1] In her petition, appellant alleged the following: On January 2, 2019, WGL submitted an application to VDOT for a land use permit to place a large transmission pipeline through the Pimmit Hills neighborhood. Initial paperwork describes the proposed pipeline as the last phase (6) of their Tysons Strip 1 24" Gas Pipeline Replacement Project. . . . Phases 1-5 of the Tysons Strip 1 project diverts the project away from Route 7, under which lies the current pipeline, onto other roadways, bringing the pipeline to Magarity Road at the intersection of Peabody Drive (i.e., in front of the Pimmit Hills neighborhood). . . . Rather than continue the pipeline down Magarity Road to Route 7, WGL proposes to zig-zag the pipeline through the Pimmit Hills residential neighborhood from Peabody Drive onto Fisher Drive, to Cherri Drive, to Leonard Drive, to Cherri Drive, to Griffith Road, to Pimmit Drive, and then to Route 7. All of these roads are residential streets with single family homes on both sides of the road.

Appellant alleged that because of heavy construction and flooding risks in the area, as well as the availability of a better alternative along Route 7, "Pimmit Hills residents and their political representatives have voiced strong opposition to the placement of the pipeline in the Pimmit Hills neighborhood." Appellant stated that the Pimmit Hills Citizens' Association ("PHCA") held a meeting on October 9, 2018 to discuss the pipeline and voted "nearly unanimously" in opposition to the pipeline. In May 2019, the PHCA adopted a formal resolution opposing placement of the pipeline through Pimmit Hills. Appellant further stated that in an October 3, 2018 community meeting, WGL told community members that it had not completed a study of the Route 7 option.

Appellant further alleged that on March 12, 2019, a deputy district administrator for VDOT denied WGL's permit application, stating that VDOT supported the placement of the pipeline along the Route 7 corridor. WGL appealed this decision on April 10, 2019. On July 25, 2019, the Northern Virginia district administrator for VDOT denied the permit request and advised WGL to coordinate the pipeline installation with the planned Route 7 widening and place the pipeline along the Route 7 route. WGL appealed this denial on August 22, 2019. On October 21, 2019, the VDOT permit manager for Arlington and Fairfax Counties issued a letter to WGL informing them that VDOT rescinded its existing denials of the permit's proposed route and instead denied the permit application because it lacked a professional engineer's signature. On November 5, 2019, after WGL submitted a new permit application with the required signature, VDOT granted the land use permit for the Pimmit Hills route. Appellant alleged that "[n]o justification or explanation was provided for VDOT's reversal, and there was no opportunity for community input regarding the new, signed permit application." She claimed that VDOT's decision in approving the permit "was unlawful, arbitrary, and in contravention of the public trust."

Regarding her participation in the permit proceedings, appellant alleged that she was "a homeowner and resident within the Pimmit Hills neighborhood of Fairfax County," as well as "a member of the . . . PHCA and the PHCA Pipeline Committee." She further alleged that her property was "directly [located] on the pipeline route proposed by WGL." Appellant asserted that she had standing to appeal because she was "a person aggrieved and affected by the proposed installation of a high-pressure pipeline directly in front of her property and home, which w[ould] pose a risk to her and her family's life and health and diminish her property value."[2]

VDOT filed a plea in bar and motion to dismiss, and WGL filed a demurrer in response to appellant's petition for appeal. Both appellees asserted that appellant was not a "party aggrieved" by VDOT's decision and therefore lacked standing to pursue her appeal.

On May 27, 2020, appellant filed a response to VDOT and WGL's defensive pleadings. Appellant argued that she had standing as an "unnamed party" to the permit proceedings due to VDOT's actions in "consistently treat[ing] her and other members of the [PHCA] Pipeline Committee as parties to the case decision by inviting, considering, and relying on their written comments throughout the permitting process." Appellant further argued that she was "aggrieved" by the issuance of the permit because construction of the pipeline would temporarily deny her ingress and egress and that the placement of the proposed pipeline in close proximity to her home would risk her family's health and safety and that these considerations were burdens and risks not shared by the general public.

On June 5, 2020 the circuit court held a hearing on VDOT's motion to dismiss and WGL's demurrer. After hearing the parties' arguments, the circuit court concluded that "[u]nder the [V]APA and the Supreme Court Rules, [appellant] is not a party to the underlying case decision." The court further stated that "even assuming that [appellant] was a party, she is not aggrieved under the case law as the [c]ourt reads it."

The circuit court subsequently entered orders granting VDOT's motion to dismiss and sustaining WGL's demurrer. This appeal followed.

II. ANALYSIS

On appeal, appellant argues that the circuit court erred in granting VDOT's motion to dismiss and sustaining WGL's demurrer because she had standing to appeal VDOT's land use permit approval as a party aggrieved under the provisions of the Virginia Administrative Process Act ("VAPA").

Whether a party has established standing is a matter of law reviewed de novo. Va. Marine Res. Comm'n v. Clark, 281 Va. 679, 686-87 (2011), overruled in part on other grounds by Woolford v. Va. Dep't of Tax'n, 294 Va. 377, 390 n.4 (2017). "On a motion to dismiss an administrative appeal based on standing, where . . . the circuit court has not taken any evidence on the allegations contained in the petition, 'we treat the factual allegations in the petition as we do on review of a demurrer.'" Reston Hosp. Ctr., LLC. v. Remley, 59 Va.App. 96, 109 (2011) (quoting Clark, 281 Va. at 686). "A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof." Id. (quoting Glazebrook v. Bd. of Supervisors, 266 Va. 550, 554 (2003)). Accordingly, "[w]e accept as true all facts properly pleaded in the [petition for appeal] and all reasonable and fair inferences that may be drawn from those facts." Id. (alterations in original) (quoting Glazebrook, 266 Va. at 554). However, "[i]t is incumbent upon the appellant to plead facts sufficient to demonstrate standing." Id. at 110.

"As a general proposition, the [VAPA] governs the appeals process for administrative decisions, unless the agency's basic law provides otherwise." Health Sys. Agency of N. Va., Inc. v. Stroube, 47 Va.App. 299, 308 (2005).3 Because the statutes governing VDOT are silent regarding procedures for judicial review of VDOT's case decisions, 4 we look to the VAPA. See Code §§ 33.2-257.1 to 33.2-280.1 (providing no specific procedure for judicial review to the circuit court in the statutes pertaining to VDOT).

The VAPA provides, in pertinent part, that [a]ny person affected by and claiming the unlawfulness of any regulation or party aggrieved by and claiming unlawfulness of a case decision . . . shall have a right to the direct review thereof by an appropriate and timely court action against the agency or its officers or agents in the manner provided by the Rules of Supreme Court of Virginia.

Code § 2.2-4026(A).5 "It is clear that, under Code § 2.2-4026, two things must be true for a person to appeal a case decision: the person must be a party to the administrative...

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