COURT OF APPEALS OF VIRGINIA
Present: Judge Frank, Senior Judge Overton and Retired Judge Swersky *
Argued at Richmond, Virginia
THE CHESAPEAKE BAY FOUNDATION, INC. AND
CITIZENS FOR STUMPY LAKE
OPINION BY
v. Record No. 2298-04-2 JUDGE ROBERT P. FRANK
JULY 19, 2005
COMMONWEALTH OF VIRGINIA, ex rel.,
VIRGINIA STATE WATER CONTROL BOARD,
ROBERT G. BURNLEY, DIRECTOR,
VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY AND
TRI-CITY PROPERTIES, L.L.C.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge
Robert L. Wise (Christopher C. Spencer; Bowman and Brooke, LLP,
on briefs), for appellants.
Robert F. McDonnell (Paul R. Schmidt; Huff, Poole & Mahoney,
P.C., on brief), for appellee Tri-City Properties, L.L.C.
John K. Byrum, Jr., Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Roger L. Chaffe, Senior Assistant Attorney
General, on brief), for appellee Commonwealth of Virginia, ex rel.,
State Water Control Board, Robert G. Burnley, Director,
Department of Environmental Quality.
This appeal arises out of the State Water Control Board’s (Board) issuance of a Virginia
Water Protection Permit to Tri-City Properties (Tri-City) that would allow Tri-City to develop a
residential and commercial development immediately adjacent to the public Stumpy Lake Nature
Preserve. Chesapeake Bay Foundation (CBF) and Citizens for Stumpy Lake (CFSL), appellants,
timely appealed the Board’s issuance of this permit to the Circuit Court of the City of Richmond.
*
Retired Judge Alfred D. Swerksy took part in consideration of this case by designation
pursuant to Code § 17.1-400.
The Commonwealth, on behalf of the Board and Department of Environmental Quality, along
with Tri-City, filed demurrers, arguing that CBF and CFSL lacked standing to bring the appeal.
The court sustained the demurrers, holding that Virginia does not recognize representational
standing and that CBF and CFSL lacked standing in their own right to bring the appeal.
CBF and CFSL appealed to this Court. For the reasons that follow, we affirm in part,
reverse in part, and remand to the trial court for further proceedings.
I. BACKGROUND
Because the circuit court decided the matters upon demurrer, we shall recite the facts
alleged, and all reasonable inferences flowing from those facts, as though they are true, in
accordance with settled principles of appellate review. Mattaponi Indian Tribe v.
Commonwealth, 261 Va. 366, 370, 541 S.E.2d 920, 922 (2001).
CBF is a non-profit organization founded in 1966 under the laws of Maryland to restore
and sustain the Chesapeake Bay ecosystem. CBF has approximately 40,000 members in
Virginia.
CFSL is a non-profit association founded in 1998 and is comprised of residents of
Virginia Beach, Chesapeake, and Norfolk in the areas surrounding and in close proximity to
Stumpy Lake and the Stumpy Lake Nature Preserve in Virginia Beach. Concerned citizens
formed CFSL when Transamerica Services, Inc., and others, were attempting to purchase
Stumpy Lake and its surrounding lands for development. The original goal of CFSL was to
preserve Stumpy Lake from development.
Roy Hoagland, Virginia Executive Director of CBF, stated in an affidavit that CBF
conducts a Clean the Bay Day in Virginia Beach and in the City of Chesapeake. Clean the Bay
Day is a trash clean-up project in which thousands of CBF members and volunteers remove trash
from streams, rivers, parks, and other areas. Stumpy Lake is a Clean the Bay Day site.
-2-
Hoagland alleged that the proposed issuance of this permit and the subsequent development by
Tri-City would impact CBF’s ability to successfully conduct the Clean the Bay Day program.
Hoagland further averred that CBF maintains an Environmental Education Program (EEP) and
“each year takes over 36,000 people out in canoes and workboats that serve as floating
classrooms for Chesapeake Bay.” Included in the EEP are oyster restoration activities in the
Lynnhaven and Elizabeth Rivers. Students and adults pay a fee for participating in EEP, and
CBF relies on receipt of those payments “as part of its economic viability.”
William Pratt, President of Citizens for Stumpy Lake, stated in his affidavit that CFSL
members enjoy the “multitude of wildlife Stumpy Lake hosts.” He, along with other members,
walks its shoreline, enjoys its pristine qualities and plans to enjoy the Preserve in the future.
Stumpy Lake provides an essential function in flood prevention.
Additionally, appellants filed two affidavits from members of the CBF and two affidavits
from the CFSL. 1 One member of CBF visits the Stumpy Lake area at least once a year. She
1
Appellee Tri-City suggests that because the affidavits were not attached to the Petition
for Appeal in the court below, they were “improperly offered for the first time via Appellant’s
Brief in Opposition of the Commonwealth’s Demurrer and Motion to Dismiss.” We find that the
argument that the affidavits were not formally accepted into evidence by the trial court is without
merit. In Concerned Taxpayers of Brunswick County v. Department of Environmental Quality,
31 Va. App. 788, 525 S.E.2d 628 (2000), rev’d on other grounds, Aegis Waste Solutions v.
Concerned Taxpayers of Brunswick County, 261 Va. 395, 544 S.E.2d 660 (2001), this Court
cited with approval the following passage from Warth v. Seldin, 422 U.S. 490 (1975):
For the purposes of ruling on a motion to dismiss for want of
standing, both the trial and reviewing courts must accept as true all
material allegations of the complaint, and must construe the
complaint in favor of the complaining party. At the same time, it
is within the trial court’s power to allow or to require the plaintiff
to supply, by amendment to the complaint or by affidavits, further
particularized allegations of fact deemed supportive of plaintiff’s
standing. If, after this opportunity, the plaintiff’s standing does not
adequately appear from all materials of record, the complaint must
be dismissed.
31 Va. App. at 796-97, 525 S.E.2d at 632 (quoting 422 U.S. at 501-02) (emphasis added).
-3-
enjoys walking and bird watching. Another CBF member also enjoys bird watching and hiking
in the Stumpy Lake area and visits at least twice a year.
One member of CFSL frequently enjoys the recreational uses and wildlife at Stumpy
Lake. He has been a member of the Stumpy Lake Golf Course for thirty years and plays an
average of twice a week. He enjoys the peaceful atmosphere and clean air of the Stumpy Lake
area. Another CFSL member also enjoys the natural beauty of the Stumpy Lake area and spends
time viewing the wildlife, which includes turtles, deer, fox, and bald eagles.
The trial court held that the plain language of Code § 62.1-44.29 does not confer
representational standing to either appellant. In finding that neither appellant is “aggrieved,” the
court cited from Pearsall v. Virginia Racing Commission, 26 Va. App. 376, 381, 494 S.E.2d 879,
882 (1998):
The Association neither owns nor occupies any real property. No
personal or property right of the Association was adjudicated by
the Commission. The Commission did not order the Association
to act or to refrain from acting. Nothing in the record suggests that
the Association holds any right that will be affected by the
outcome of this case. We agree with the trial court’s finding that
the Association was not a “person aggrieved” under the statute.
The trial court further found that neither CBF nor CFSL could maintain the appeal in its
own right. The court, quoting State Water Control Board v. Crutchfield, 265 Va. 416, 427, 578
S.E.2d 762, 768 (2003), recognized that “in ‘environmental cases,’ it generally is sufficient if a
plaintiff establishes that he uses the affected area, and that he is a person ‘for whom the aesthetic
and recreational values of the area will be lessened’ by the defendant’s actions.” The court then
found that appellants did not allege sufficient injury in this case.
[I]f all that is required to establish standing is use of the waterway
or surrounding area in question, Crutchfield’s observation that the
Article III “injury in fact” requirement “precludes a plaintiff from
alleging a generalized grievance to vindicate an interest shared by
the entire public” is meaningless since there are few people who do
not have at least some aesthetic or recreational interest in the
-4-
environment. The court believes that more is required than what
appellants have shown here. They do not have standing.
This appeal followed.
II. ANALYSIS
A. Demurrer
A demurrer admits the truth of all facts alleged in a motion for judgment but does not
admit the correctness of the pleader’s conclusions of law. Blake Constr. Co. v. Upper Occoquan
Sewage Auth., 266 Va. 564, 570-71, 587 S.E.2d 711, 714-15 (2003); Yuzefovsky v. St. John’s
Wood Apartments, 261 Va. 97, 102, 540 S.E.2d 134, 136-37 (2001). The function of a demurrer
is to test the legal sufficiency of the facts alleged. Glazebrook v. Bd. of Supervisors, 266 Va.
550, 554, 587 S.E.2d 589, 591 (2003). Because our review of a circuit court’s decision
sustaining a demurrer addresses that same legal question, we review the circuit court’s judgment
de novo. Filak v. George, 267 Va. 612, 617-18, 594 S.E.2d 610, 613 (2004).
B. Representational Standing
Appellants first contend that the trial court erred in holding that the plain language of
Code § 62.1-44.29 did not confer representational standing to appellants. The court reasoned
that neither CBF nor CFSL were “aggrieved” under Virginia standards.
The State Water Control Law’s (SWCL) judicial review provision provides:
Any owner aggrieved by, or 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 Board under
§§ 62.1-44.15(5), 62.1-44.15(8a), (8b), and (8c), 62.1-44.15:5,
62.1-44.16, 62.1-44.17, 62.1-44.19 or § 62.1-44.25, whether such
decision is affirmative or negative, is entitled to judicial review
thereof in accordance with the provisions of the Administrative
Process Act (§ 2.2-4000 et seq.) if such person meets the standard
for obtaining judicial review of a case or controversy pursuant to
Article III of the United States Constitution. 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;
-5-
(ii) such injury is fairly traceable to the decision of the Board 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.
Prior to 1996, the only party who could appeal the issuance of a permit pursuant to this
statute was an owner aggrieved by the Board’s decision. When the General Assembly added the
Article III language to Code § 62.1-44.29 in 1996, the legislature broadened the allowance for
judicial review from the narrow “owner aggrieved” standard to the more encompassing
“case-or-controversy” requirements of Article III of the United States Constitution. Appellants
argue that under this Article III analysis, the statute automatically and implicitly confers standing
to an organization in a representational capacity. Contending that is not the case, appellees
respond that Virginia recognizes representational standing only when specifically authorized by
statute, which is not the case here.
The constitutional Article III requirements are set out in Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992). First, there has to be an injury in fact. This injury must be (a) concrete and
particularized, and (b) actual or imminent. Next, there must be a causal connection between the
injury and the conduct complained of. Third, it must be likely that the injury would be redressed
by a favorable decision. The parties to this appeal do not challenge the second and third prongs
and argue only injury in fact.
Federal courts have long recognized representational standing. In Sierra Club v. Morton,
405 U.S. 727 (1972), representatives of the Sierra Club challenged the United States Forest
Service’s decision to allow Disney Corporation to develop the Mineral King Valley in the
Sequoia National Forest into a multi-million dollar complex of motels, restaurants, swimming
pools, parking lots, ski slopes, lodges, and other structures designed to accommodate 14,000
-6-
visitors daily. The Supreme Court was called upon to decide whether the Sierra Club could
obtain judicial review of that decision on behalf of its members. The Court held:
The trend of cases arising under the APA and other statutes
authorizing judicial review of federal agency action has been
toward recognizing that injuries other than economic harm are
sufficient to bring a person within the meaning of the statutory
language, and toward discarding the notion that an injury that is
widely shared is ipso facto not an injury sufficient to provide the
basis for judicial review. We noted this development with
approval in Data Processing [v. Camp], 397 U.S. [150,] 154
[(1970)], in saying that the interest alleged to have been injured
“may reflect ‘aesthetic, conservational, and recreational’ as well as
economic values.” But broadening the categories of injury that
may be alleged in support of standing is a different matter from
abandoning the requirement that the party seeking review must
himself have suffered an injury.
Some courts have indicated a willingness to take this latter step by
conferring standing upon organizations that have demonstrated “an
organizational interest in the problem” of environmental or
consumer protection. It is clear that an organization whose
members are injured may represent those members in a proceeding
for judicial review.
Id. at 738-39 (citations omitted).
In Warth v. Seldin, 422 U.S. 490, 511 (1975), the Supreme Court further clarified the
requirements of representational standing:
Even in the absence of injury to itself, an association may have
standing solely as the representative of its members. The
possibility of such representational standing, however, does not
eliminate or attenuate the constitutional requirement of a case or
controversy. The association must allege that its members, or any
one of them, are suffering immediate or threatened injury as a
result of the challenged action of the sort that would make out a
justifiable case had the members themselves brought suit. So long
as this can be established, and so long as the nature of the claim
and of the relief sought does not make the individual participation
of each injured party indispensable to proper resolution of the
cause, the association may be an appropriate representative of its
members, entitled to invoke the court’s jurisdiction.
(Citations omitted).
-7-
In Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977), the
Supreme Court developed a three-prong test for associational standing based on the holding in
Warth. The Court stated an association has Article III standing to sue on behalf of its members
when “(a) its members would otherwise have standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of individual members in the lawsuit.” Id. at
343.
This Court recognized representational standing in Concerned Taxpayers of Brunswick
County v. Department of Environmental Quality, 31 Va. App. 788, 525 S.E.2d 628 (2000), rev’d
on other grounds, Aegis Waste Solutions v. Concerned Taxpayers of Brunswick County, 261 Va.
395, 544 S.E.2d 660 (2001). Members of the Concerned Taxpayers Association appealed the
decision by the Department of Environmental Quality to issue a permit to operate a solid waste
landfill under the Solid Waste Management Act (SWMA). The SWMA’s judicial review
provision was almost identical to SWCL’s and provided that a “person” shall meet the standard
for obtaining judicial review if such person meets the standard under Article III.2 The taxpayers
2
Code § 10.1-1457(B) set forth the requirements for judicial review under the Virginia
Waste Management Act. It stated:
Any person who has participated, in person or by the submittal of
written comments, in the public comment process related to a final
decision of the Board or Director under § 10.1-1408.1 or
§ 10.1-1426 and who has exhausted all available administrative
remedies for review of the Board’s or Director’s decision, shall be
entitled to judicial review thereof in accordance with the
Administrative Process Act (§ 9-6.14:1 et seq.) if such person
meets the standard for obtaining judicial review of a case or
controversy pursuant to Article III of the United States
Constitution. 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 Board and not the result of the independent action of some
-8-
alleged immediate or threatened injury as a result of the challenged action. Citing Warth, this
Court held that under an Article III test, the Association could be an appropriate representative of
its members and was entitled to invoke the court’s jurisdiction. Thus, this Court found that
pursuant to Code § 10.1-1457(B) of the Virginia Waste Management Act, the appellant there had
representational standing to sue the Department of Environmental Quality. 3
The statute under review here is identical, for purposes of standing, to the statute at issue
in Concerned Taxpayers. As we stated in Concerned Taxpayers, Code § 62.1-44.29 merely
reiterates the requirements set out in Lujan. Therefore, fulfillment of the tests set forth in Lujan
and Hunt results in satisfaction of the standing requirement under Code § 62.1-44.29. See
Concerned Taxpayers, 31 Va. App. at 796, 525 S.E.2d at 632. Therefore, we find that Code
§ 62.1-44.29 authorizes CBF and CFSL to bring suit on behalf of its members in a
representational capacity if they satisfy the requirements under Article III.
Appellees argue that Pearsall controls because Pearsall can be interpreted as holding that
Virginia does not recognize representational standing unless authorized by statute.
In Pearsall, the Monument Avenue Park Association, along with Pearsall, challenged a
decision by the Virginia Racing Commission to grant a license to operate an off-track betting
parlor near Pearsall’s and other Association’s members’ homes. The trial court held that the
Association did not have standing to pursue the appeal and that neither Pearsall nor the
Association was a “person aggrieved.” 26 Va. App. at 376, 494 S.E.2d at 881. On appeal, this
third party not before the court; and (iii) such injury will likely be
redressed by a favorable decision by the court.
3
Appellees claim Concerned Taxpayers lacks precedential value because the Supreme
Court reversed it on other grounds in Aegis Waste Solutions v. Concerned Taxpayers of
Brunswick County, 261 Va. 395, 544 S.E.2d 660 (2001). We disagree. Aegis did not address
the issue of standing, expressly declining to do so in footnote 2. Because that issue was not
appealed, we are bound to follow its precedent.
-9-
Court held that the Association did not have standing because it did not own or occupy any real
property. Id. at 381, 494 S.E.2d at 882. This Court further refused to recognize the
Association’s right to pursue the appeal based upon representational standing, holding that the
statute does not specifically authorize it. Id. at 383, 494 S.E.2d at 883.
The appeal in Pearsall was governed by Code § 59.1-373, which provides for a “person
aggrieved” analysis. The judicial review provision under scrutiny in Pearsall does not include
the broad Article III standing, and therefore the review of that statute is immaterial to the review
of the statute at issue here. Additionally, Pearsall did not involve the SWCL or environmental
issues. Thus, Pearsall does not control resolution of the issues presented by this appeal.
That said, the first prong of the test for associational standing requires that members of
the association have standing to sue in their own right. See Hunt, 432 U.S. at 343. In United
Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555
(1996), the Court stated that this prong requires “at least one member with standing to present, in
his or her own right, the claim . . . pleaded by the association.” Therefore, at least one member
of the association, but not all of the members, must satisfy the Lujan test for Article III standing.
See Concerned Taxpayers, 31 Va. App. at 796, 525 S.E.2d at 632.
The Lujan test first requires that the injury be “concrete and particularized” and
“imminent,” not “hypothetical.” Lujan, 504 U.S. at 560. Crutchfield established the touchstone
in Virginia for “injury in fact.” For purposes of Article III standing, the “injury in fact” that must
be established in a case involving a plaintiff’s recreational and aesthetic interests is not injury to
the environment, but injury to the plaintiff. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 181 (2000); Piney Run Pres. Ass’n v. County Comm’rs., 268 F.3d
255, 263 (4th Cir. 2001), cert. denied, 535 U.S. 1077 (2002). This requirement precludes a
plaintiff from alleging a generalized grievance to vindicate an interest shared by the entire
- 10 -
public. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 156 (4th Cir.
2000).
A plaintiff must show that the alleged injury will affect him in a personal and individual
manner. Lujan, 504 U.S. at 560 n.1; Gaston Copper Recycling Corp., 204 F.3d at 156.
However, the claimed injury need not be a large one, and an “identifiable trifle” will be sufficient
to meet the “injury in fact” requirement. LaFleur v. Whitman, 300 F.3d 256, 270-71 (2d Cir.
2002); Gaston Copper Recycling Corp., 204 F.3d at 156; Sierra Club v. Cedar Point Oil Co., 73
F.3d 546, 557 (5th Cir. 1996). Thus, in “environmental cases,” it generally is sufficient if a
plaintiff establishes that he uses the affected area and that he is a person “‘for whom the aesthetic
and recreational values of the area will be lessened’” by the defendant’s actions. Laidlaw Envtl.
Servs., 528 U.S. at 183 (quoting Morton, 405 U.S. at 735); accord Piney Run Pres. Ass’n, 268
F.3d at 263. “[T]he desire to use or observe an animal species, even for purely esthetic purposes,
is undeniably a cognizable interest for purpose of standing.” Lujan, 504 U.S. at 562-63.
In Laidlaw Envtl. Servs., the Supreme Court found that the relevant showing for purposes
of Article III standing is not injury to the environment, but injury to the plaintiff. 528 U.S. at
199. The South Carolina Department of Health and Environmental Control issued a permit to
Laidlaw to discharge treated water into the Tyger River. Laidlaw began to discharge various
pollutants into the waterway, some being extremely toxic, and repeatedly exceeding the limits set
by the permit. Id. at 175-76. Friends of the Earth (FOE) and Citizens Local Environmental
Action Network (CLEAN) filed a lawsuit against Laidlaw, alleging noncompliance with the
permit and seeking declaratory and injunctive relief and an award of civil penalties. Id. at 177.
Laidlaw moved for summary judgment on the ground that FOE lacked Article III standing to
bring the lawsuit. Id.
- 11 -
One FOE member averred in affidavits that he used to swim, fish, camp, and picnic near
the river. He could no longer engage in these activities because of the smell of pollution. Other
FOE and CLEAN members attested that they no longer enjoyed the river because of the fear that
the water contained harmful pollutants. The Supreme Court found that “the affidavits and
testimony presented by FOE in this case assert that Laidlaw’s discharges, and the affiant
members’ reasonable concerns about the effects of those discharges, directly affected those
affiants’ recreational, aesthetic, and economic interests.” Id. at 183-84. The Court determined
that the sworn statements adequately documented injury in fact for purposes of meeting the
requirements of representational standing. Id. at 183.
The trial court here held that “[t]he plain language of the statute shows that standing to
seek judicial review of a decision of the Board is not conferred on persons in a representative
capacity.” In so doing, the trial court never addressed whether appellants alleged sufficient
injury to confer standing on a member of the CBF or CFSL in a personal and individual manner.
Having found that Virginia recognizes representational standing pursuant to Concerned
Taxpayers and that Code § 62.1-44.29 confers this representational standing, we remand for the
trial court to determine whether appellants alleged sufficient facts to allow for judicial review
pursuant to Code § 62.1-44.29.
C. Standing To Sue In Its Own Right
Appellants next contend they have standing to sue in their own right. Appellees respond
that neither CBF nor CFSL has shown sufficient injury to the organizations to establish standing.
The trial court determined that because neither CBF nor CFSL owns real or personal property
that will be adversely affected by the Board’s decision, neither could maintain an appeal in its
own right. The court discussed Crutchfield and found that “injury in fact” means more that just a
- 12 -
generalized grievance shared by the entire public because “there are few people who do not have
at least some aesthetic or recreational interest in the environment.”
The SWCL provides that an aggrieved owner, or any person who has participated, either
in person or by the submission of written comments, in the public comment process related to a
final decision of the Board under Code § 62.1-44.15(5) is entitled to judicial review of that
decision “if such person meets the standard for obtaining judicial review of a case or controversy
pursuant to Article III of the United States Constitution.” Code § 62.1-44.29.
Appellant CBF contends it has standing to challenge the Board’s grant of a permit to
Tri-City because CBF conducts a Clean the Bay Day and this activity confers standing. CBF
asserts, “CBF has a significant financial interest in Clean the Bay Day including but not limited
to a dedicated staff person, promotional materials, and contractual relationships with local
governments and local civic organizations.” CBF also conducts EEPs within the Bay and relies
on income generated from these programs for its economic viability.
In W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 478 S.E.2d 295 (1996), an
association of home builders brought a suit for declaratory judgment seeking invalidation of
county ordinances that increased building permit fees. Id. at 379, 478 S.E.2d at 297. The
Virginia Supreme Court held that the association lacked standing because it had failed to show
that its own rights would be affected by the outcome of the proceeding. The Court noted that the
association neither built houses nor paid building permit fees.
A plaintiff has standing to institute a . . . proceeding if it has a
“justiciable interest” in the subject matter of the proceeding, either
in its own right or in a representative capacity. Henrico County v.
F. & W., Inc., 222 Va. 218, 223, 278 S.E.2d 859, 862 (1981);
Lynchburg Traffic Bureau v. Norfolk and Western Railway, 207
Va. 107, 108, 147 S.E.2d 744, 745 (1966). In order to have a
“justiciable interest” in a proceeding, the plaintiff must
demonstrate an actual controversy between the plaintiff and the
defendant, such that his rights will be affected by the outcome of
- 13 -
the case. See Code § 8.01-184; Cupp v. Board of Supervisors, 227
Va. 580, 589, 318 S.E.2d 407, 411 (1984).
Id. at 383, 478 S.E.2d at 299.
While appellant cites Clean the Bay Day as injury in fact to the CBF, we find that
appellant fails to allege how the issuance of the permit to Tri-City will impact this program.
Paragraph 4 of Hoagland’s affidavit alleges that Stumpy Lake is a Clean the Bay Day site and
that “CBF has a significant financial interest in Clean the Bay Day.” However, the affidavit does
not allege facts to sufficiently support this conclusion.
It is well settled that while a demurrer admits as true all averments
of material facts which are sufficiently pleaded, it does not admit
the correctness of the conclusions of law stated by the pleader.
Nor does a demurrer admit “inferences or conclusions from facts
not stated.”
Arlington Yellow Cab v. Transportation, Inc., 207 Va. 313, 318-19, 149 S.E.2d 877, 881-82
(1966) (citations omitted). Here, we must make “speculative inferences” in order to accept
appellant’s argument. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.
26, 45 (1976) (finding that there was no injury because speculative inferences were necessary to
connect respondent’s injury to the challenged actions of petitioners). Having cited only
conclusions, we cannot determine from the affidavit how the rights of CBF will be affected by
the issuance of the permit.
Additionally, allegations contained in paragraph 11 reference CBF’s ability to conduct
the Clean the Bay Day. “The destruction of protected wetlands in that area will . . . diminish the
members [sic] and volunteers’ enjoyment of the areas’ natural resources during their clean up
efforts.” Indeed, CBF relies upon the purported injury to others resulting from the Board’s
issuance of the permit to Tri-City. We therefore conclude that the allegations contained therein
pertain, at best, to injury to the members themselves, and not to the association. See Carnes, 252
- 14 -
Va. at 383, 478 S.E.2d at 299 (holding individual plaintiff corporation had standing based upon
existing controversy with the county, but the homebuilder’s organization, itself, did not).
CBF has also alleged that it maintains an EEP that educates people, for a fee, about the
Chesapeake Bay, including oyster restoration activities in the Lynnhaven and Elizabeth Rivers.
While we acknowledge that CBF alleges that the association depends on the fees generated by
the EEP for “part of its economic viability,” CBF fails to demonstrate how the proposed
development will affect the EEP. Again, because we cannot determine from the affidavits what
impact, if any, the issuance of the permit would have on the CBF, we find that CBF has not
demonstrated standing in their own right to maintain suit against appellees. 4
Appellant CFSL also maintains it has standing to sue in its own right. Appellant alleges
that CFSL was formed to prevent Virginia Beach from rezoning the property from preservation
to residential uses. If this permit is allowed to stand, claims CFSL, then the existence of the
association will be threatened. “If there is no Stumpy Lake as its members know it, there is no
Citizens for Stumpy Lake.” While appellant’s allegations, taken as true, indicate that they
advocate for environmental concerns, we find that CFSL fails to allege any facts that provide a
nexus between the issuance of the permit and a threat to CFSL’s existence.
William Pratt, president of CFSL, alleged that CFSL was formed in 1998 with the goal of
preventing the City of Virginia Beach from rezoning the property from preservation to
residential uses and to prevent the City of Chesapeake from rezoning its surrounding areas
4
The trial court found appellant CBF did not have actual standing because the
organization did not own real or personal property that would be adversely affected by the
Board’s decision and that CBF had no pecuniary interest in the area. While we now affirm on
the ground that appellant CBF alleged only conclusions of injury and no facts in support thereof,
we note that this argument was made to the trial court by Tri-City. We, therefore, find that the
trial court reached the right result, but for the wrong reason. See Driscoll v. Commonwealth, 14
Va. App. 449, 452, 417 S.E.2d 312, 313 (1992) (holding that an appellate court may affirm the
trial court when it reached the right result for the wrong reason when the right reason was raised
at trial).
- 15 -
adjacent to Stumpy Lake from agricultural to residential uses. CFSL’s efforts to preserve
Stumpy Lake have been extensive, including distribution of pamphlets, demonstrations, and
extensive communication with local government and civic organizations. It is apparent from the
allegations presented in the petition and affidavits that the purpose and goal of CFSL is to
preserve the Stumpy Lake area from present and future development and destruction.
CFSL argues that standing is conferred simply on the basis of promoting the goal of
preserving Stumpy Lake. However, CFSL never alleges any facts from which we can conclude
that CFSL will be eliminated by the issuance of the permit. While appellants contend on brief
that the injury to CFSL is frustration of its mission, we find nothing in the affidavits to support
this argument. 5
Appellant relies on Hunt. Hunt involved a Washington State Apple Grower’s
Commission asserting standing to challenge a North Carolina statute. The Court agreed they had
representational standing, noting that the Washington commission could be financially affected
by the reduction in receipt of annual assessments if North Carolina passed the statute in
controversy. 432 U.S. at 345. Here, appellant CFSL compares the potential loss of revenue,
which could jeopardize the well-being of the Washington commission, to the loss that would be
suffered by the association CFSL. We disagree.
While we agree with the rationale in Hunt, the facts of this case defeat appellant’s
argument. First, CFSL does not allege, nor does it argue, financial loss. More importantly,
CFSL fails to allege injury threatening the viability of their organization. As this is the sole
5
We do not address whether a threat to an organization’s viability is sufficient injury to
confer standing.
- 16 -
injury argued by CFSL, we find that the omission of this allegation from the affidavits is fatal to
CFSL’s claim for standing. 6
Accordingly, we find that neither CBF nor CFSL have standing to sue in their own right.
The judgment of the trial court, as to these issues, is affirmed.
CONCLUSION
For the foregoing reasons, we find that Code § 62.1-44.29 permits an organization to sue
on behalf of its members. We remand to the trial court for a determination whether the
appellants have met the requirements of representational standing consistent with this opinion.
We further find that neither CBF nor CFSL have satisfied the requirements for standing to sue in
their own right. Accordingly, we affirm in part, and reverse and remand in part.
Affirmed, in part,
reversed and
remanded, in part.
6
The trial court found appellant CFSL did not have actual standing because the
organization did not own real or personal property that would be adversely affected by the
Board’s decision and that CFSL had no pecuniary interest in the area. While we now affirm on
the ground that appellant CFSL did not allege injury in the affidavits, we note that this argument
was made to the trial court by Tri-City. We, therefore, find that the trial court reached the right
result, but for the wrong reason. Driscoll, 14 Va. App. at 452, 417 S.E.2d at 313.
- 17 -