Supreme Court of Virginia in Richmond, Va. Parker Michels-Boyce for The Virginia Mercury
The Supreme Court of Virginia overruled a lower court that decided homeowners whose property lies near a massive Wegmans distribution center under construction in Hanover County didn’t have legal standing to challenge local approvals of the project issued in 2020.
“Standing determines who may file a lawsuit — not who can win one,” Justice D. Arthur Kelsey wrote in the court’s Feb. 2 opinion. In this case, he found, “the homeowners assert a direct cause-and-effect relationship between the Board’s 2020 decision and specific, detailed harm to the homeowners.”
The ruling returns the lawsuit, which sought to nullify the county’s approvals, to the Hanover Circuit Court. But with the Wegmans warehouse already partially built, it’s unclear exactly how the case might impact the project.
Roderick Morgan, the lead plaintiff in the case and a Hanover resident who owns property within 1,000 feet of the site where the 1.7 million square foot facility is being built, said he was pleased but not surprised by the ruling.
“After listening to the questions that the Supreme Court asked of the county, I felt like this was the likely outcome, but I’m still gratified that they saw this our way,” he said.
In a statement, Hanover County Administrator John Budesky said while the county “disagree[s] with the court’s decision, the board respects the courts’ role in the process” and “remains confident that, as the courts continue their review of this matter, they will find that the board acted properly related to this case.”
The case before the Supreme Court of Virginia concerned whether five residents whose properties are close to the site had the legal right to bring a lawsuit against the Hanover County Board of Supervisors. The residents allege the board committed multiple violations of local ordinances and state laws in voting to grant Wegmans a special exception and approve revised proffers for the project in May 2020.
In November 2020 and August 2021, the Hanover Circuit Court ruled the homeowners lacked standing to pursue their case, saying they had failed to demonstrate that they would suffer special harms from the project different from those experienced by the general public. The residents then appealed the ruling to the state Supreme Court.
Much of the debate before the court centered around a 2013 case known as Friends of the Rappahannock v. Caroline County Board of Supervisors in which the justices laid out two criteria that people or groups filing legal complaints over zoning decisions have to meet to claim standing. First, they must own or occupy property on or in close proximity to the property in question, and second, they must be able to show they will suffer a particular harm as a result of a decision different from the harm the general public might experience.
The board and Wegmans admitted Morgan and the other residents met the proximity criteria but said they wouldn’t suffer special harm as a result of the project. Partly, they said, that was because any harms they suffered would be the result of an original 1995 rezoning of the site and not local officials’ votes in 2020 to give the Wegmans distribution center a special exception and modify proffers attached to the site.
“Rather than alleging harms arising from the Board’s limited acts in May 2020, Homeowners allege harms based on zoning decisions made in 1995,” Wegmans wrote in a brief to the court. “The Board’s 1995 rezoning of the site and adoption of the 1995 proffers are no longer subject to challenge.”
In an amicus brief, the Local Government Attorneys of Virginia, Virginia Municipal League and Virginia Association of Counties backed up Hanover and Wegmans’ stance, calling the homeowners’ claims “unprecedented in Virginia law governing both local land use decisions and standing.”
“Plaintiffs propose that their standing status should be analyzed based on the alleged impact on them and their properties from zoning decisions made more than 25 years ago as opposed to the alleged impact on them from the 2020 decision they are actually challenging,” the groups wrote. That “would have grave consequences for local governments who make zoning decisions and for property owners who rely on those zoning decisions.”
The Supreme Court rejected that argument.
“We have no difficulty concluding that the allegations of particularized harm made by the homeowners are fairly traceable to the Board’s 2020 decision,” Kelsey wrote.
“Had there been no Board decision at all in 2020, there would have been no governmental decision for the homeowners to complain about,” he concluded. “Wegmans asked for and received a favorable decision from the Board in 2020.”
The Supreme Court’s ruling does not resolve the case but instead sends it back to Hanover Circuit Court for the five residents to pursue their complaints against the board.
“We haven’t really won anything. We’ve won the right to make the claim we wanted to make two years ago,” said Morgan.
Construction has continued during the litigation. Wegmans has begun hiring for positions at the facility and lists an opening date of summer 2023 on its website. At the time of the project’s announcement by former Gov. Ralph Northam in December 2019, Wegmans said the distribution center would create 700 jobs.
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