Anders Larsen Trust v. Board of Supervisors ( 2022 )

PRESENT: Goodwyn, C.J., Powell, Kelsey, McCullough, and Chafin, JJ., and Koontz and
Millette, S.JJ.
ANDERS LARSEN TRUST, ET AL.
OPINION BY
v. Record No. 210538 JUSTICE STEPHEN R. McCULLOUGH
May 26, 2022
BOARD OF SUPERVISORS
OF FAIRFAX COUNTY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dontaé L. Bugg, Judge
Newport Academy 1 seeks to open a residential treatment center for teenage girls. This
treatment center would operate from a house located in a residential neighborhood. Several
neighbors, who either own houses or live in houses next to the proposed treatment center,
objected to Newport Academy’s claim that its treatment center was a “by right” use. The
County’s Zoning Administrator, and later the Board of Zoning Appeals, sided with Newport
Academy. On a petition for certiorari, the Circuit Court for Fairfax County concluded that the
neighbors lacked standing and dismissed the case. The neighbors challenge this dismissal. For
the reasons noted below, we conclude that the allegations made by the neighbors are sufficient to
establish that they have standing. Accordingly, we will reverse the judgment of the circuit court
and remand the case for further proceedings.
BACKGROUND
Newport Academy purchased a house located at 1318 Kurtz Road, in the Salona Village
neighborhood of McLean (the “Property”). It plans to operate a residential treatment center for
teenage girls from the home. Some neighbors requested a ruling from the Fairfax County Zoning
1
Newport Academy is operated by respondent Virginia Health Operations, LLC and
owned by respondent Monroe RE, LLC. For simplicity, we will refer to these respondents as
“Newport Academy.”
Administrator to determine whether operating the facility from a house located in a residential
neighborhood would require a special use permit.
Newport Academy informed the Zoning Administrator that up to eight girls between the
ages of 12 and 17 would stay at the facility for a period of between 45 and 90 days. Newport
Academy stated that this was not a drug rehabilitation facility, does not provide detoxification
services, and does not admit anyone currently using illicit substances. Staff would be on site 24
hours per day, with at least eight staff members on site between 8:00 a.m. to 7:00 p.m., but no
staff would live at the Property. Further, Newport Academy planned to use a shuttle van and
off-site parking to minimize the number of vehicles parked at the Property.
The neighbors contend that the facility does not fall within the definition of “Group
Residential Facility”, which is a “by right” use in this zoning district, and that it should be
classified either a “Congregate Living Facility” or a “Medical Care Facility,” both of which
require a special exception permit to operate in a residential zone. The neighbors fear that drug
addicts will populate the treatment center and that the center will, in fact, provide treatment for
drug addiction.
The Fairfax County Zoning Administrator concluded that the proposed use of the
Property is most similar to a “Group Residential Facility,” as defined by Article 20 of the Fairfax
County Zoning Ordinances and permitted by Code § 15.2-2291, and, therefore, a special use
permit is not required for its operation. The Board of Zoning Appeals affirmed the Zoning
Administrator’s decision.
The neighbors then sought relief by filing in circuit court a petition for a writ of certiorari
against the Board of Supervisors of Fairfax County. Two of the neighbors, Jason Hein and
Matthew Desch, own a single-family residence next to the proposed treatment center. The
2
Anders Larsen Trust owns a home that adjoins the proposed treatment center. All three allege
that they would be injured by the operation of a treatment center. Specifically, they contend that
they will face increased traffic caused by the three shifts of staff entering and exiting the
property, patients coming and going, and family visitations. In greater detail, Hein showed the
impact of the increased traffic. His evidence included photographs showing 12 cars parked in
the newly expanded Newport Academy parking lot as well as a picture of the Newport Academy
transport van stuck in a ditch in front of a neighboring house. Similarly, the representative of the
Trust explained that her brother suffers from autism and walks everywhere because he cannot
drive. Therefore, the increased traffic would create a dangerous situation for him. They also
claim that they will experience diminished property values and lessened quality of life. They
believe that the proposed facility creates safety and burglary risks should one of the residents in
the facility escape. Id.
Much of the extensive evidence before the Zoning Administrator and the Board of
Zoning Appeals focused on the extent to which the proposed facility will host or treat persons
who suffer from drug addiction. The circuit court, however, sua sponte concluded that the
neighbors/petitioners lacked standing to challenge the decision of the Board of Zoning Appeals
and dismissed the case on that basis. This appeal followed.
ANALYSIS
The concept of standing concerns itself with the characteristics of the person or
entity who files suit. The point of standing is to ensure that the person who asserts
a position has a substantial legal right to do so and that his rights will be affected
by the disposition of the case.
Cupp v. Board of Supervisors of Fairfax County, 227 Va. 580, 589 (1984). The pivotal question
is “whether [t]he [complaining party] has a sufficient interest in the subject matter of the case so
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that the parties will be actual adversaries and the issues will be fully and faithfully
developed.” Id.In general, only an “aggrieved” party has standing to challenge a zoning decision. Code
§ 15.2-2314; see also Friends of the Rappahannock v. Caroline County Bd. of Supervisors, 286
Va. 38, 47 (2013). In order for a party 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.
Historic Alexandria Foundation v. City of Alexandria, 299 Va. 694, 697-98 (2021). A party has
standing if it can “show an immediate, pecuniary, and substantial interest in the litigation, and
not a remote or indirect interest.” Harbor Cruises, Inc. v. State Corp. Comm., 219 Va. 675, 676
(1979) (per curiam). It is incumbent on petitioners to allege facts sufficient to demonstrate
standing. Friends of the Rappahannock, 286 Va. at 50.
Where a party appeals to the circuit court from a decision of the Board of Zoning
Appeals, we employ a two-prong test to determine whether a person who does not have an
ownership interest in the subject property has standing to challenge a zoning determination.
First, the complainant must own or occupy real property within or
in close proximity to the property that is the subject of the land use
determination, thus establishing that it has a direct,
immediate, pecuniary, and substantial interest in the decision.
Second, the complainant must allege facts demonstrating a
particularized harm to 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.
Id. at 48. “Complainants do not need to establish that the particularized harm has already
occurred.” Id. at 49.
4
“We review de novo the question of whether the appellants’ factual allegations were
sufficient to establish standing, as this issue presents a question of law.” Platt v. Griffith, 299
Va. 690, 692 (2021).
The first element of the test for standing in zoning cases is not in contention here. All
three petitioners own property immediately adjacent to the proposed treatment center. As to the
second element, the petitioners allege that their property values will be diminished by the
operation of this facility. Loss of property value, especially for owners of parcels immediately
adjacent to the property, can constitute an interest distinct from those of the public at large. It is
entirely plausible that operating a treatment center in an otherwise entirely residential
neighborhood can lead to diminished value of the immediate neighbors’ properties. A distinctive
and non-trivial “pecuniary” harm is generally sufficient to establish standing. Such a harm
constitutes an “immediate, pecuniary, and substantial interest” in the litigation rather than a
“remote or indirect interest.” Historic Alexandria Foundation, 299 Va. at 698. 2 In addition, the
neighbors/petitioners allege that their enjoyment of their property will be diminished by the fact
that there will be three shifts of staff coming and going, and residents and visitors will likewise
be driving to and from the property. We conclude that under the circumstances of the present
litigation the neighbors’ allegations are sufficient to survive a demurrer on the question of
standing. 3
2
We do not hold that a bare allegation of diminished property value, no matter the
context, will suffice to establish standing. We do hold that the allegation of diminished property
values in this case, allegations made by the immediate neighbors of a proposed commercial
establishment, a treatment center, in what had previously been an entirely residential
neighborhood, are sufficient to survive dismissal on the basis of lack of standing.
3
The neighbors’ allegations about the safety risks posed by the teenage girls who will
attend Newport Academy are on this record entirely implausible and speculative.
5
Friends of the Rappahannock is distinguishable. In that case, several landowners
challenged a special use permit for a sand and gravel mining operation located on a 514-acre
tract. The property was already zoned for industrial use and the County imposed conditions to
the issuance of the permit “regarding pollution, particulate matter, and noise.” 286 Va. at 50.
One complaining party owned a leasehold interest and a right of first refusal in adjoining land
and used the land “for duck hunting, fishing, and river access.” Id. at 42. His concern was that
“industrial activity at the site will frighten away the wildlife, prevent or deter new wildlife from
entering the area, and render the property useless for hunting, causing him harm.” Id. A second
complaining party owned “164 acres of farmland adjacent to the site” and rented a farmhouse on
this tract. Id. This person contended “that mining activities at the site will interfere with her
right-of-way to the river, make it more difficult to find tenants for the farmhouse, and create
problematic noise and airborne particulate conditions.” Id. A final group of complaining parties
lived in a subdivision directly across the river, approximately 1,500 feet away from the mining
property. Their homes were further separated from the river by 200 feet of open space. They
expressed a concern about the activities ending “the scenic beauty of the location” and increasing
“noise, dust, and traffic from barges and commercial boats in a manner that will alter their quiet
enjoyment of the area.” Id. at 43. One of the complainants worried about the impact of the dust
on their children, one of whom was asthmatic. Id.
This Court concluded that “[t]he individual complainants do not allege any facts to
indicate that the conditions imposed by the permit would be inadequate to protect their property
rights.” Id. at 50. The mine was already zoned for industrial use, the special use permit was
subject to a number of conditions, and a significant distance separated the complaining parties
and their activities from the mine. Ultimately, the complainants in Friends of the Rappahannock
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failed “to plead facts sufficient to claim particularized harms to rights not shared by the general
public.” Id. at 49. Here, in contrast, we are dealing with a commercial establishment in a
residential neighborhood, and the complaining parties live in or own single-family homes
immediately next to the proposed treatment center. Their allegations of diminished property
values and increased traffic to and from the residence rise beyond mere speculation and suffice
to allege standing. 4
The circuit court never reached the merits of the neighbors’ challenge to the decision of
the Board of Zoning Appeals. Accordingly, we reverse and remand for further proceedings.
CONCLUSION
For the foregoing reasons, we will reverse the judgment of the circuit court that the
neighbors/petitioners lack standing and we remand the case for further proceedings.
Reversed and remanded.
4
To the extent there is a factual contest concerning the allegations that purport to
establish standing, the circuit court may hear evidence to resolve the factual dispute, either
pre-trial or during the course of the trial. If the court resolves the factual contest against the
complaining party, the court must dismiss the case for lack of standing.
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