Friends of the Rappahannock v. Caroline Cnty. Bd. Sups.

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

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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

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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

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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.

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 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

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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.

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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

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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

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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

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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

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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.)

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 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."

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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

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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

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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.

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