Leocade Leighton v. Virginia Dep't of Health, etc

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia

LEOCADE LEIGHTON
MEMORANDUM OPINION * BY
v. Record No. 1328-01-4 JUDGE RICHARD S. BRAY
JUNE 11, 2002
VIRGINIA DEPARTMENT OF HEALTH,
NICHOLAS F. GLOWICKI,
MICHELE A. GLOWICKI AND
PHILIP C. GIBSON

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Thomas D. Horne, Judge

Leocade Leighton, pro se (John W. Wine, on
briefs), for appellant.

Karen L. Lebo, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee Virginia Department of
Health.

No brief or argument for appellees Nicholas
F. Glowicki, Michele A. Glowicki and
Philip C. Gibson.

Pursuant to the Virginia Administrative Process Act (VAPA),

Code § 9-6.14:1 through 9-6.14:25, 1 Leocade Leighton appealed to

the trial court a decision by the Virginia Department of Health

(Department) finding no "illegalities" in the "Sewage Disposal

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Effective October 1, 2001, the Virginia Administrative
Process Act was recodified in Code §§ 2.2-4000 through 2.2-4033.
See 1999 Va. Acts, ch. 844. All references in this opinion are
to the former Code, in effect at the time the Department's
decision was rendered in this case.
System" that serves the property of Philip and Linda Gibson

(Gibson). Demurring to the appeal, the Department maintained

Leighton lacked standing because the decision was not a final

"case decision" and Leighton was neither a "party" to the

proceedings nor "aggrieved" by the decision. The trial court

concluded Leighton had standing to seek judicial relief but,

upon review of the record, affirmed the Department on the

merits.

We find Leighton was not a "party aggrieved" as

contemplated by the VAPA and, therefore, lacked the requisite

standing to challenge the decision. Accordingly, we affirm the

trial court. 2

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal. In accordance with well established

principles, we view the evidence in the light most favorable to

the prevailing party below, the Department in this instance.

2
Despite the erroneous finding by the trial court that
Leighton had standing to challenge the Department's decision, we
may, nevertheless, affirm the decision if the court reached the
right result, albeit for the wrong reason, provided the correct
reason was "brought to the attention" of the court, Eason v.
Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963), and no
"'further factual resolution is needed before [such] reason may
be assigned to support the . . . decision.'" Twardy v. Twardy,
14 Va. App. 651, 657, 419 S.E.2d 848, 851 (1992) (quoting
Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,
314 (1992)).

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See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 789 (1990).

I.

The instant proceedings resulted from unrelated litigation

that necessitated resubdivision of certain separate properties

of Leighton, Gibson and others. Alleging that approval by

Fauquier County (County) of the replat was jeopardized by the

"Sewage Disposal System" presently located on the Gibson parcel,

Leighton, by letter dated September 24, 1999, requested the

Department conduct a "hearing" to address the issue. She

specifically challenged, inter alia, the "legality of the

10/4/1972 and 10/5/1972 approval" of the Gibson "sewage system,"

the location of "a shed" and "water well" on the Gibson property

and the "methods used by the Fauquier County Health Department

for locating . . . drainfield[s]."

On October 27, 1999, the Department, acting through

Dr. James E. Burns, Director of the Rappahannock-Rapidan Health

District, conducted a hearing in response to Leighton's

concerns. Charles Shepherd, District Environmental Health

Manager, summarized the protracted history of the dispute, and

submitted substantial documentary proofs and related evidence in

support of a finding that the Gibson system did not violate

applicable regulations.

Leighton attended the hearing but presented no evidence in

support of her claims. After simply reading into the record a

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written statement that mirrored her original correspondence to

the Department, she repeatedly refused to answer Dr. Burns'

relevant inquiries.

In correspondence to Leighton dated November 22, 1999 and

designated, "Case Decision," Dr. Burns reviewed the record in

detail and, "[b]ased on the regulations and state law, exhibits,

and proceedings held on October 27, 1999," concluded:

1. [T]he Gibson's drainfield permit is
valid because:

a. Legal property lines do not
currently exist so there can be no
encroachment;

b. The alleged separation between the
Gibson drainfield and well does not violate
the 1971 Sewage Regulations which apply; and

c. Even if such violations alleged by
you did exist, and I expressly have
determined there are no violations, you have
neither identified any injury nor provided
any proof establishing that there has been
any injury to yourself or to the public
health.

2. [T]he Gibson's well was legally
installed at a time when there were no
regulations that dictated a minimum
separation distance between a well and a
preexisting septic system. Since the well
appears to have been installed after the
drainfield, no violation of the 1971 Sewage
Regulations existed then or now. The fact
that some 27 years after installation the
Gibson's well remains uncontaminated is good
evidence that no public health hazard
exists.

3. [T]he shed poses no violation of code,
regulation, or ordinance and does not pose a
public health threat. After 27 years the

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 soils of the drainfield area have compacted
sufficiently so that a shed resting on the
surface would pose no threat to the
integrity of the system.

* * * * * * *

5. Finally, while you may obtain an
informal explanation of the Health
Department's decision making, you clearly
lack standing to administratively appeal
decisions by the department under the 1988
Sewage Regulations . . . .

Pursuant to the VAPA, Leighton petitioned the trial court

for review, assigning a myriad of errors to the decision. In

response, the Department demurred, asserting, in pertinent part,

that Leighton lacked the requisite "standing" to pursue judicial

relief. At a related hearing on August 10, 2000, Leighton

conceded, "If [she] had no standing, that would be the end of

it." However, she alleged a "legitimate interest in the

Gibson's lot since the day [the court] ordered" the

resubdivision, which "put[] [her] on the same plat with the

Gibson's, [and gave her] a wholesale, strong interest in . . .

all parts of that plat."

At the conclusion of the hearing, the court overruled the

demurrer, determining Leighton had standing to pursue the

appeal. However, in a memorandum opinion dated January 11,

2001, the court declined to "compel the Health Department to

commence proceedings against the Gibsons" and ruled "enforcement

of the regulations is a matter resting within the sound

discretion of the Health Department." The final order, entered

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April 19, 2001, "incorporated" the memorandum opinion and

dismissed Leighton's petition, resulting in the instant appeal.

II.

As a threshold issue, we address the Department's

continuing challenge to Leighton's standing to pursue judicial

relief.

"Not every person who files a protest and is
given an opportunity to be heard by the
administrative agency has a right to appeal
from an order of the agency, but whether a
particular person has the right to contest
administrative action is largely a question
of law, dependent on a number of variable
factors, including the nature and extent of
his interest, the character of the
administrative act and the terms of the
statute."

D'Alessio v. Lukhard, 5 Va. App. 404, 407, 363 S.E.2d 715, 717

(1988) (quoting 73A C.J.S. Public Administrative Bodies and

Procedure § 189 (1983)).

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
direct review thereof by an appropriate and
timely court action against the agency as
such or its officers or agents in the manner
provided by the rules of the Supreme Court
of Virginia.

Code § 9-6.14:16(A) (emphasis added). Leighton does not

challenge "the unlawfulness of any regulation" and, therefore,

appeals as a "party aggrieved by and claiming unlawfulness of a

case decision." Id.

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 Assuming, without deciding, that Dr. Burns' correspondence

to Leighton, dated November 22, 1999, constituted a "case

decision" by the Department and, further, that Leighton was a

"party" to the proceedings, we find she has failed to establish

she was "aggrieved" by the action.

The term "aggrieved" has a settled meaning
in Virginia when it becomes necessary to
determine who is a proper party to seek
court relief from an adverse decision. In
order for a petitioner to be "aggrieved," it
must affirmatively appear that such person
had some direct interest in the subject
matter of the proceeding that he seeks to
attack. The petitioner "must show that he
has an immediate, pecuniary and substantial
interest in the litigation, and not a remote
or indirect interest . . . ." The word
"aggrieved" in a statute contemplates a
substantial grievance and means a denial of
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 Beach Beautification Comm'n v. Bd. of Zoning Appeals,

231 Va. 415, 419-20, 344 S.E.2d 899, 903 (1986) (citations

omitted); see also Virginia Employment Comm'n v. City of

Virginia Beach, 222 Va. 728, 732, 284 S.E.2d 595, 597 (1981);

Virginia Ass'n of Ins. Agents v. Commonwealth, 201 Va. 249, 253,

110 S.E.2d 223, 226 (1959); Nicholas v. Lawrence, 161 Va. 589,

593, 171 S.E. 673, 674 (1933).

Here, Leighton established no "direct," "immediate,

pecuniary, and substantial interest" in the Department's

decision. The effect, if any, of Gibson's existing sewage

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system upon a forthcoming resubdivision plat is clearly

speculative and conjectural and, thus, "remote or indirect" with

respect to Leighton. Accordingly, she is not a "party

aggrieved" within the intendment of Code § 9-6.14:16(A) and

without standing to appeal the Department's decision.

We, therefore, affirm the trial court.

Affirmed.

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