COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
FRANCES BROADDUS CRUTCHFIELD AND
HENRY RUFFIN BROADDUS
MEMORANDUM OPINION * BY
v. Record No. 1095-01-2 JUDGE SAM W. COLEMAN III
APRIL 2, 2002
STATE WATER CONTROL BOARD,
DEPARTMENT OF ENVIRONMENTAL QUALITY AND
COUNTY OF HANOVER, VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
Benjamin A. Thorp IV (William B. Ellis;
Ellis & Thorp, P.L.L.C., on briefs), for
appellants.
John R. Butcher, Senior Assistant Attorney
General; Barbara M. Rose, Deputy County
Attorney (Randolph A. Beales, Attorney
General; Sterling E. Rives III, County
Attorney; Yvonne Wellford, Senior Assistant
County Attorney, on brief), for appellees.
Frances Broaddus Crutchfield and Henry Ruffin Broaddus,
appellants, appeal a decision of the trial court finding that
Crutchfield and Broaddus lack standing to appeal a decision of the
State Water Control Board (SWCB) to issue a permit to Hanover
County (the County) for the discharge of treated sewage into the
Pamunkey River. Appellants also contend the trial court abused
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
its discretion in refusing to allow them to file an amended
petition for appeal setting forth more detailed allegations of the
damage to the appellants' property. The SWCB and the County
contend the trial court erred in allowing appellants to file an
amended petition for appeal adding the County as a party when the
County had not been named as a party in the initial appeal. We
find that appellants have standing to contest the issuance of the
permit and that the trial court abused its discretion in refusing
to allow appellants to file an amended petition for appeal setting
forth more detailed allegations of their claimed damages. We
further find that the County did not object in the trial court to
being named a party to the appeal and the County cannot raise the
issue for the first time here. Therefore, we reverse the
decisions of the trial court and remand the case for hearings and
a decision on the merits.
BACKGROUND
Appellants own Newcastle Farm (the farm), an 878 acre
property located in Hanover County. The farm, which has been in
the Broaddus family for six generations, has several miles of
river frontage along the Pamunkey River. The farm contains the
remains of a colonial era town which is listed as a Virginia
Historic Landmark and a portion of Marlbourne, a former
plantation, which is listed on the National Historic Landmark
Registry.
- 2 -
On April 28, 1999, the SWCB granted the County a Virginia
Pollution Discharge Elimination System permit (the permit). The
permit allows the County to discharge up to ten million gallons
per day of wastewater into the Pamunkey River from an outfall
located on appellants' farm. The project also includes a buried
thirty-six inch pipe that will transport the waste to the outfall
across appellants' farm.
In January 1999, the SWCB held a public hearing on the
County's pending application. Appellants presented evidence at
the hearing, and, on February 4, 1999, they submitted written
comments to the SWCB. The comments explained appellants'
opposition to the project based on their concerns that the
proposed discharge would adversely affect the river's already
impaired water quality and would cause damage to fish and other
wildlife.
The parties agree that the Pamunkey River below the proposed
discharge site has experienced problems with dissolved oxygen
levels falling below the standard established for the river.
Furthermore, they agree that the proposed discharge will contain
oxygen demanding pollutants which can contribute to low dissolved
oxygen levels.
On June 28, 1999, appellants filed a petition for appeal in
the Richmond Circuit Court alleging that the permit was issued in
violation of state water control law. Appellants requested that
the trial court find the permit invalid and void. The petition
- 3 -
identified appellants as the owners of the property which is the
site of the proposed outfall and discharge. The petition
specifically alleged that the proposed discharge would harm the
water quality of the already impaired Pamunkey River, would harm
fish and other animal life, and would impair the use of the river
for recreation. Appellants attached as an exhibit to the petition
a February 4, 1999 letter containing their written comments to
SWCB concerning the project. In the letter, appellants also
alleged the proposed plan would adversely affect significant,
documented historic resources on the farm.
On July 23, 1999, the SWCB filed a demurrer to the appeal,
alleging that the petition failed to name a necessary party, the
County. The SWCB also alleged that appellants lacked standing to
appeal the issuance of the permit because they failed to allege
injury or damage to their personal interests. At a hearing held
on April 26, 2000 on the demurrer, appellants argued that the
initial petition contained sufficient allegations to confer
standing in the case, but in the event the trial court decided
otherwise, they requested leave to amend the original petition to
include a more detailed accounting of the injuries and damage that
would be sustained by them as a result of the proposed discharge.
They also requested leave to amend the petition to add the County
as a party.
In a letter opinion dated May 24, 2000, the trial court
rejected the positions of the SWCB, found that appellants had
- 4 -
standing in the case, and granted leave to appellants to amend the
petition to add the County as a party. The trial court found that
the February 4, 1999 letter contained sufficient allegations of
injury and damage directly to appellants by alleging that the
proposed project would injure the historic resources located on
appellants' farm. The trial court also found that the initial
petition and the February 4, 1999 letter failed to include
sufficient allegations of injury or damage to appellants'
aesthetic or recreational interests. The trial court entered an
order on June 14, 2000 granting leave to appellants to amend their
petition to name the County as a party.
On June 30, 2000, appellants filed a First Amended Petition
for Appeal (amended petition), naming the County as a party and
adding several paragraphs that were not included in the original
petition further expounding on the injuries and damage they
contend would result from the issuance of the permit. In the
amended petition, appellants described themselves as "riparian"
co-owners of the farm. Appellants also added paragraphs stating
that they personally use the river for recreational activities,
such as swimming, boating, fishing, and canoeing and that they
would cease to use the river at and near the proposed discharge
location site for these recreational activities if the sewage
outfall was located as proposed. In addition, appellants alleged
in the amended petition that the project would damage the
aesthetic interests of the farm.
- 5 -
The SWCB and the County each filed a motion to strike all of
the new allegations in the amended petition. The SWCB requested
that the trial court strike the amended petition and direct
appellants to file an amended petition in conformance with the
court's June 14, 2000 order. In its motion to strike, the County
conceded that the June 14, 2000 trial court order granted leave to
appellants to amend the petition to name the County as a party.
Furthermore, in its motion to strike, the County asserted that
appellants amended the petition to add allegations that were not
authorized by the court's order and letter opinion. The County
requested only that appellants be directed to file an amended
petition in conformance with the trial court's June 14, 2000 order
and May 24, 2000 letter opinion, raising no objection to the trial
court's ruling granting leave to appellants to name the County as
a party. The SWCB also sought leave to take the depositions of
appellants regarding the standing issue.
At a hearing held on September 13, 2000, the trial court
granted the motions to strike the new allegations in the amended
petition. Appellants renewed their motion to file an amended
petition containing the additional allegations of injury. The
trial court asked, "[H]aving found that the [original] petition
was sufficient on its face, and . . . having overruled the
[SWCB's] demurrer, why do you need these additional allegations?"
Appellants asserted that the SWCB was continuing to contest the
issue of standing because it requested to take their depositions.
- 6 -
Therefore, appellants averred that the additional allegations in
the amended petition would clarify the standing issue. Indeed,
counsel for the SWCB later stated that the purpose of taking the
depositions was to gather information from appellants concerning
the standing issue. The trial court granted the SWCB's motion for
leave to take depositions of appellants and denied appellants'
motion to amend the petition.
At a hearing held on November 9, 2000, the SWCB argued that
appellants had not proved they had standing to contest the
issuance of the permit. The SWCB argued that appellants' original
petition pled standing based only on their claim that the project
would injure historic resources. The SWCB then asserted that
appellants' testimony in the depositions showed that a consultant
had indicated that the project would not affect the historical
resources located on the property. Furthermore, the SWCB asserted
that appellants indicated in their depositions that they would
cease their recreational uses of the river even if the project
discharged water that met drinking water standards and that
appellants objected to the project whether or not it met water
quality standards.
On March 15, 2001, the trial court issued another letter
opinion finding that "standing, although sufficiently alleged, has
not been proved." The trial court dismissed the case on that
ground. The trial court found that appellants' sole averment in
the original petition had been damage to historic sites. However,
- 7 -
appellants' depositions had revealed that a cultural resource
study concluded the project "will not have an effect on the
location, setting or use that contributes to Marlbourne's
significance." In addition, the trial court found that whatever
injuries appellants claimed, such claims amounted only to
"'abstract distress'" and were insufficient to confer standing.
Appellants appeal the trial court's decision that they lack
standing.
I. STANDING
"In analyzing a decision on Article III standing, we review
the [trial] court's factual findings for clear error. We
consider the legal question of whether [appellants] possess[]
standing to sue as a de novo matter." Piney Run Pres. Ass'n v.
County Comm'rs, 268 F.3d 255, 262 (4th Cir. 2001). The elements
of standing are "not mere pleading requirements," but must be
supported by sufficient evidence. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
Code § 62.1-44.29 provides that 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 SWCB
to issue a Virginia Pollution Discharge Elimination System permit
is entitled to judicial review thereof if such person meets the
standard for obtaining judicial review of a case or controversy
under Article III of the United States Constitution.
- 8 -
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 [SWCB] 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.
"[W]hen the suit is one challenging the
legality of government action . . ., the
nature and extent of facts that must be
averred . . . in order to establish standing
depends considerably upon whether the
plaintiff is himself an object of the action
. . . at issue. If he is, there is
ordinarily little question that the action
. . . has caused him injury, and that a
judgment preventing . . . the action will
redress it."
Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 376-77, 541
S.E.2d 920, 925 (2001) (quoting Lujan, 504 U.S. at 561-62).
We find that the original petition for appeal sufficiently
alleged the elements of standing and that appellants' deposition
testimony further proved they had standing in the case. The
original petition stated that appellants are co-owners of the
property located on the Pamunkey River. The treated sewage
outfall will be located on appellants' property, and the sewage
will be discharged from this outfall into the waters of the
Pamunkey River.
"'Riparian land' is land which is contiguous to and touches
a watercourse." Code § 62.1-104(5). "'Riparian owner' is an
- 9 -
owner of riparian land." Code § 62.1-104(6). The rights of a
riparian owner include "'[t]he right to make a reasonable use of
the water as it flows past or leaves the land.'" Thurston v.
City of Portsmouth, 205 Va. 909, 912, 140 S.E.2d 678, 680 (1965)
(citation omitted). Riparian rights also include "'[t]he right
to be and remain a riparian proprietor and to enjoy the natural
advantages thereby conferred upon the land by its adjacency to
the water.'" Id. at 911-12, 140 S.E.2d at 680 (citation
omitted).
The original petition and the February 4, 1999 letter
alleged harm to resources to which riparian owners have a
recognized legal right. The February 4, 1999 letter states that
several speakers commented at the public hearing concerning
their recreational uses of the river immediately downstream from
the proposed discharge site. The letter further states, "Those
using this area are not limited to the property owners."
Clearly, this statement indicates that appellants use the river
for recreational activities. Indeed, in their depositions,
which were considered by the trial court in deciding this issue,
appellants confirmed that they use the river for swimming,
boating, and fishing and that the location of the outfall would
adversely affect their recreational use of the river and the
aesthetic value of the river. These allegations show more than
"abstract distress" or "'general averments'" of injury to
others. See Friends of the Earth v. Laidlaw Envtl Servs., Inc.,
- 10 -
528 U.S. 167, 183 (2000) (citation omitted) (Court found
standing where plaintiffs' "reasonable concerns about the
effects of . . . discharges directly affected [their]
recreational [and], aesthetic interests" and were more than
"'general averments'" and "'conclusory allegations'").
Furthermore, "[a] plaintiff can show an 'injury in fact'
when he or she suffers 'an invasion of a legally protected
interest which is concrete and particularized, as well as actual
or imminent.'" Piney Run, 268 F.3d at 263 (citation omitted).
"[A] plaintiff need only show that he used the affected area,
and that he is an individual 'for whom the aesthetic and
recreational values of the area [are] lessened' by the
defendant's activity." Id. (citation omitted). Moreover, the
Fifth Circuit has held that citizens' concerns about water
quality sufficed as an injury in fact where two of the affiants
lived near the affected water and used the water for
recreational activities. The Court stated that it was
sufficient to confer standing where "the affiants expressed fear
that the discharge . . . will impair their enjoyment of these
activities because these activities are dependent upon good
water quality. Clearly, [the] affiants have a direct stake in
the outcome of this lawsuit." Sierra Club v. Cedar Point Oil
Co., 73 F.3d 546, 556 (5th Cir. 1996). See also Sierra Club v.
Morton, 405 U.S. 727, 735 (1972) (plaintiffs adequately allege
injury in fact when they aver they use affected area and are
- 11 -
persons "for whom the aesthetic and recreational values of the
area will be lessened" by challenged activity); Friends of the
Earth v. Gaston Copper Recycling Corp., 204 F.3d 149, 159 (4th
Cir. 2000) (allegations that plaintiffs use affected area and
aesthetic and recreational values would be decreased by
challenged activity sufficient for injury in fact).
Appellants have also met the "causation" prong of standing
criteria. The injuries they have alleged are "fairly traceable"
to the decision of the County to discharge sewage into the
Pamunkey River from an outfall located on appellants' property
and the decision of the SWCB to issue the discharge permit to
the County. The injuries are not the result of a third party
not before the court. See Mattaponi Indian Tribe, 261 Va. at
377, 541 S.E.2d at 925-26. Indeed, the parties agree that the
river below the discharge site has experienced problems with
dissolved oxygen levels and that the sewage discharge will
contain oxygen demanding pollutants which can contribute to low
dissolved oxygen levels.
Furthermore, the injuries alleged would be redressed by a
favorable decision of the court if the trial court declared that
the permit was issued illegally and was therefore void.
Accordingly, appellants have standing to challenge the issuance
of the permit.
- 12 -
II. AMENDED PETITION
The original petition alleged that the project would cause
damage to historic resources on the property. Initially, the
trial court found that those allegations were sufficient to
confer standing. However, the trial court later reversed
itself, finding that a cultural resources study indicated that
historic resources on the property would not be affected by the
project. Prior to the trial court's decision that appellants
lacked standing, appellants requested leave to amend the
petition in order to make further allegations as to the injuries
they would suffer as a result of the project. However, the
trial court denied the request. We find that the trial court
abused its discretion in denying appellants leave to amend the
petition to add allegations of injury.
Rule 1:8 provides that "[l]eave to amend [any pleading]
shall be liberally granted in furtherance of the ends of
justice." "[T]he decision to permit a party to amend a pleading
is discretionary with the trial court. It is reviewable by this
Court only for an abuse of that discretion." Thompson v.
Thompson, 6 Va. App. 277, 281, 367 S.E.2d 747, 750 (1988).
The original petition and the amended petition both arose
in the context of appellants' challenge to the decision of the
SWCB to issue the permit to the County. Both the original and
amended petitions requested the same relief--that the trial
court declare that the permit was issued in violation of state
- 13 -
law and was therefore invalid. The amended petition did not
state a completely new case and was sufficiently related to the
original petition. See Rosenberg v. Rosenberg, 210 Va. 44, 47,
168 S.E.2d 251, 253 (1969) (finding trial court erred in
refusing to grant leave to husband to file amended bill of
complaint in divorce action). The amended petition merely
contained detailed allegations concerning the injuries
appellants purportedly would suffer as a result of the project.
Furthermore, appellants' deposition testimony supported these
allegations of injury. Accordingly, the trial court abused its
discretion in refusing to allow appellants to file the amended
petition for appeal.
III. THE COUNTY AS A PARTY
The SWCB and the County argue that the County is a
necessary party to the action, but that, pursuant to the time
limitations of Rule 2A:4, the trial court was without authority
to grant appellants leave to amend the petition for appeal to
add the County as a party.
"'Where an individual is in the actual
enjoyment of the subject matter, or has an
interest in it, either in possession or
expectancy, which is likely either to be
defeated or diminished by the plaintiff's
claim, in such case he has an immediate
interest in resisting the demand, and all
persons who have such immediate interests
are necessary parties to the suit.'"
- 14 -
Asch v. Friends of the Cmty. of Mount Vernon Yacht Club, 251 Va.
89, 90-91, 465 S.E.2d 817, 818 (1996) (citations omitted).
The County, as the permittee, has an immediate interest in
the outcome of the suit and is a necessary party to the action.
See Browning-Ferris Indus. v. Residents Involved in Saving the
Environment, Inc., 254 Va. 278, 282-83, 492 S.E.2d 431, 434
(1997). Furthermore, appellants' failure to name the County in
the original petition is not fatal pursuant to Rule 2A:4. Rule
2A:4(a) requires an appellant to file a petition for appeal
within thirty days of filing the notice of appeal. This Court
has held that the time limitation in Rule 2A:4 is mandatory and
the trial court is not authorized to extend the time limits.
Mayo v. Dep't of Commerce, 4 Va. App. 520, 524, 358 S.E.2d 759,
762 (1987). However, here, appellants timely filed a petition
for appeal, and, pursuant to Rule 1:8, the trial court had
discretion to grant leave to appellants to amend the petition to
name the County as a party. Thus, the failure to name the
County in the original petition was not a jurisdictional defect
in the pleading.
Furthermore, the record contains no objection or pleading
filed by the County raising an objection to being added as a
party to the suit. The County filed an answer to appellants'
amended petition. Moreover, in its motion to strike the amended
petition for appeal, the County requested only that appellants
be directed to file an amended petition for appeal that
- 15 -
conformed with the trial court's June 14, 2000 order granting
leave to appellants to amend the petition to name the County as
a party. Accordingly, the County has waived any objection to
being named as a party.
For the foregoing reasons, we reverse the trial court's
ruling that appellants lack standing to appeal the issuance by
the SWCB of the permit. We also reverse the trial court's
decision refusing appellants leave to file the amended petition
for appeal to add further allegations of injury, and we remand
the case to the trial court for trial upon the merits of
appellants' claims.
Reversed and remanded.
- 16 -