Supreme Court of Virginia in Richmond, Va. Parker Michels-Boyce for The Virginia Mercury
Real estate, housing and business groups are backing a request by Wegmans for the Supreme Court of Virginia to reconsider a ruling that property owners near a massive distribution center under construction in Hanover have the right to challenge local approvals of the project in court.
“If not reconsidered,” the groups wrote in an amicus brief filed with the court March 13, the decision “will have disastrous consequences for all types of development in Virginia.”
The long-running case, Morgan v. Board of Supervisors of Hanover County, stems from the Hanover board’s 2020 decision to grant New York-based grocery chain Wegmans a special exception to build an up to 1.7 million square foot facility and approve revised conditions for the project to proceed.
The project garnered significant support from the state: Under former Gov. Ralph Northam’s administration, Virginia promised Wegmans $2.35 million as well as tax credits to locate the facility in Hanover. The company promised to invest $175 million in the project and said it would create 700 jobs.
But many neighbors were outraged by the plans, and the local board’s approval of them sparked several lawsuits, including one linked to environmental justice concerns over the siting of the facility next to the Brown Grove community founded by freedpeople after the Civil War. A second legal challenge by five adjacent landowners argued the board had violated multiple local ordinances and state laws in its May 2020 decision.
Hanover Circuit Court in 2020 and 2021 found the landowners — led by Roderick Morgan, whose property lies within 1,000 feet of the Wegmans facility — had no standing to challenge the board’s vote because they couldn’t demonstrate they would suffer a “particularized harm” from the project different from what the general public might experience.
The Supreme Court of Virginia on Feb. 2 overturned that finding and sent the case back to the local court, with Justice D. Arthur Kelsey writing the justices had “no difficulty concluding that the allegations of particularized harm made by the homeowners are fairly traceable to the Board’s 2020 decision.”
Wegmans asked the court to reconsider its decision March 6, saying the ruling would “create confusion in this and future land-use litigation” by allowing any zoning amendment or special exception, “no matter how minor, to re-open decades of settled zoning decisions.”
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The company has argued any harms the neighbors may suffer are actually the result of a 1995 rezoning of the site and should not be linked to changes made in 2020 that greenlit the Wegmans project.
Twenty-one groups are supporting Wegmans in its request, including the Better Housing Coalition, Virginia Economic Developers Association, Local Government Attorneys of Virginia, Virginia Municipal League, Virginia Association of Counties, Virginia Association of Realtors, Chesapeake Solar & Storage Association and various chambers of commerce.
“This change in Virginia standing law is likely to generate years of litigation in each land-use development project, curtail development by Virginia-based companies, and cause non-Virginia companies to look elsewhere,” the groups wrote. “If not reconsidered now, the rule of Morgan will put Virginia at a competitive disadvantage compared to her neighboring States.”
Brian Buniva, attorney for the five Hanover property owners, called those arguments “extraordinary and desperate” as well as “utter nonsense” in a court filing Monday.
Instead, he argued, Wegmans is seeking to delay review by the county court “in hope that it can complete facility construction, obtain a certificate of occupancy from the County, and commence operations prior to this case being tried on the merits.”
The Hanover facility is expected to begin operations this summer.
“Wegmans could have avoided the dilemma it caused by building on unlawfully zoned property,” Buniva wrote. “Wegmans, however, chose to proceed at its own risk while this litigation was pending. Wegmans made its bed, and now under the law, must lie in it.”
This story has been updated to clarify that the distribution center can be up to 1.7 million square feet.
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