Thursday, Aug 11, 2022

Virginia Supreme Court Expands Standing in Land Use Cases

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In a shift from its prior decisions and those of many circuit courts, the Virginia Supreme Court recently held that neighbors of two separate land use applications had standing to challenge the governing body’s approval of those projects. The Court’s decisions appear at conflict with its 2013 decision in Friends of the Rappahannock v. Caroline County Board of Supervisors, 286 Va. 38 (2013), and may open the door to more challenges to the legislative decisions of local governing bodies, which could cause delays in the approval of land use projects in Virginia not previously experienced.

In 2013, the Virginia Supreme Court decided Friends of the Rappahannock and established a two-part test to determine whether a party who is not an owner of the subject property has standing to challenge a legislative land use decision regarding the subject property. The complainant must (i) own or occupy real property within or in close proximity to the subject property and (ii) allege facts demonstrating a particularized harm to a personal or property right or an imposition of a burden different from that suffered by the general public. In Friends, the Court held that the neighbors of a proposed sand and gravel mining operation lacked standing to challenge the governing body’s approval of that project because they did not sufficiently allege facts to satisfy the second prong of the test despite the fact that they alleged that the approval of the project would interfere with their access to a right-of-way and would cause economic harm, noise pollution, and air pollution. One neighbor even alleged that the air pollution from the project would endanger the health of their asthmatic child. Nevertheless, the Supreme Court held that those allegations were insufficient to confer standing and dismissed the  case on demurrer.

In the nine years since Friends was decided, numerous circuit courts applied the Friends test and concluded that third party challengers lacked standing to challenge legislative land use decisions. Earlier this year, the Supreme Court reversed two of those decisions.

In Anders Larsen Trust v. Board of Supervisors (May 26, 2022), the Court held that neighbors of a proposed residential treatment center had standing to challenge a decision of the Fairfax County Board of Zoning Appeals, and reversed the circuit court’s dismissal of the case under the Friends standing test. The Court did not overrule Friends or change the test; however, it concluded that the neighbors satisfied both prongs of it. Among other things, the Court held that the alleged loss of value can constitute an interest distinct from that of the general public. The Court noted, however, that at this stage of the proceeding, the Court had to assume the plaintiff’s allegation that their property values would be diminished is true, and that if they do not sufficiently prove that allegation at trial, that the court must dismiss the case for lack of standing.

Two weeks later, the Court reached a similar result in Seymour v. Roanoke County Board of Supervisors (June 9, 2022). In that case, the Court held that owners of property accessed by a shared private easement had standing to challenge the issuance of a special use permit to another land owner who shared the same easement. The neighbors alleged that prior permits issued to the wildlife center already caused an increase in traffic and that the issuance of the SUP would increase these harms. In particular, the owners claimed the traffic (1) creates excessive dust, noise, and light pollution which wakes them up at night and caused one of the owners to have asthma attacks; (2) causes them to incur additional maintenance expenses for the road; (3) poses a danger to their children who walk along the road to get to the bus stop; and (4) decreases the value of their property. The Court held that these harms were not suffered by the public generally because the public did not have to deal with the pollution, maintenance costs, or added dangers.

The full impact of the Supreme Court’s decisions in Anders and Seymour remain to be seen; however, they could lead to more land use cases surviving standing challenges. That, combined with a new, automatic appeal as a matter of right to the Virginia Court of Appeals in these types of cases, could lead to previously unexperienced delays in the approval of land use projects in Virginia. If you have questions about whether your neighbor may have standing to challenge your land use approval, please contact Matthew Westover at (703) 680-4664 or at