Robin J. Pearsall v. The VA Racing Comm.,et ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
ROBIN J. PEARSALL
AND
MONUMENT AVENUE PARK ASSOCIATION
OPINION BY
v. Record No. 0696-97-2 JUDGE JERE M. H. WILLIS, JR.
JANUARY 20, 1998
THE VIRGINIA RACING COMMISSION,
COLONIAL DOWNS, L.P.
AND
STANSLEY RACING CORPORATION
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
T. J. Markow, Judge
Patrick M. McSweeney (John L. Marshall, Jr.;
McSweeney, Burtch & Crump, P.C., on briefs),
for appellants.
Teresa C. Manning, Assistant Attorney General
(Richard Cullen, Attorney General; Michael K.
Jackson, Senior Assistant Attorney General;
Donald R. Ferguson, Assistant Attorney
General, on brief), for appellee Virginia
Racing Commission.
John C. Ivins, Jr. (James L. Weinberg;
Chandra D. Lantz; Hirschler, Fleisher,
Weinberg, Cox & Allen, P.C., on brief), for
appellees Colonial Downs, L.P. and Stansley
Racing Corporation.
Robin J. Pearsall and the Monument Avenue Park Association
(Association) contend that the trial court erred in ruling that
the Association was not a "person aggrieved," see
Code § 59.1-373, and that, for that reason, the Association
lacked standing to appeal from a decision of the Virginia Racing
1
Commission, an administrative agency. We disagree.
1
The appellants do not contend that the trial court erred in
The Virginia Racing Commission (Commission) regulates horse
racing and pari-mutuel betting in the Commonwealth, including the
issuance of licenses to persons or entities desiring to operate
race tracks and betting facilities. Code §§ 59.1-364 et seq. On
October 12, 1994, the Commission licensed Colonial Downs, L.P.
(Colonial Downs) and Stansley Racing Corporation (Stansley) to
own and operate a horse race track. On December 20, 1995, the
Commission issued Colonial Downs and Stansley a license to
operate a betting parlor at 3200 West Broad Street in Richmond.
Colonial Downs and Stansley sought an amendment of the
Commission's order to relocate the betting parlor at 4700 West
Broad Street, located in Richmond and Henrico County. On June
25, 1996, following public notice and a hearing, the Commission
granted that amendment to the betting parlor license.
Pearsall and the Association appealed the Commission's
decision to the trial court. The Association is a civic group
composed of individuals residing in the City of Richmond and
within the vicinity of the betting parlor.
The trial court conducted a hearing on the appeal. Landon
Wellford testified that he was a member of the Association and
owned a residence located within sight of the betting parlor. He
stated that he believed that the licensing of the parlor "would
negatively impact the neighborhood and probably hurt property
dismissing Robin J. Pearsall from their petition for review.
Accordingly, we confine our review to the trial court's dismissal
of the Association.
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values as a result of a negative commercial
use . . . inappropriately mixed in with a residential use."
Robert Goodman, an expert on the effects of the siting and
operation of gambling facilities on residential neighborhoods,
testified that the presence of the betting parlor would reduce
residential property values in the neighborhood. Cecil E. Sears,
an expert on residential property values in the City of Richmond,
testified that residences located within view of the betting
parlor or on streets immediately behind the facility would likely
suffer a decline in value.
The trial court dismissed the Association's petition for
review. It held that Wellford had standing to bring the appeal,
but concluded that his membership in the Association did not
confer that standing on the Association. It ruled that neither
the Association nor Pearsall was a "person aggrieved." For this
reason, the trial court dismissed the appeal.
The sole issue in this appeal is whether the Association had
standing to seek review of the Commission's decision on behalf of
its members.
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. In asking whether a
person has standing, we ask, in essence,
whether he has sufficient interest in the
subject matter of the case so that the
parties will be actual adversaries and the
issues will be fully and faithfully
developed.
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Cupp v. Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d 407,
411 (1984) (citation omitted).
Standing, in this case, is governed by statute. See
Environmental Defense Fund v. Virginia State Water Control Bd.,
12 Va. App. 456, 462, 404 S.E.2d 728, 732 (1991). Code
§ 59.1-373 expressly limits the right to appeal a decision of the
Commission.
Any person aggrieved by a refusal of the
Commission to issue any license or permit,
the suspension or revocation of a license or
permit, the imposition of a fine, or any
other action of the Commission, may, within
thirty days of such action, appeal to the
2
Circuit Court of the City of Richmond.
Id. (emphasis added). Thus, the determinative inquiry in this
appeal is whether the Association is a "person" that was
"aggrieved" by an action of the Commission.
Code § 59.1-365 defines a "person" to include "a natural
person, partnership, joint venture, association, or corporation."
An unincorporated association may sue or be sued. Code
§ 8.01-15. The Association is an unincorporated civic group
comprised of persons in a defined region of the City of Richmond.
Accordingly, we conclude that the Association is a "person" for
purposes of this appeal.
2
The General Assembly modified Code § 59.1-373, requiring
compliance with Article 4 of the Administrative Process Act in
the review and appeal of the Commission's decisions. 1996 Va.
Acts ch. 573. However, the amendment does not apply to agency
actions commenced prior to July 1, 1996. 1996 Va. Acts ch. 573,
cl. 2. Accordingly, we refer to the statute in this opinion as
it was written prior to the amendment.
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However, the ability to initiate an action does not confer
upon a party the right to maintain an action involving no direct
interest of that party. To have standing, the Association must
demonstrate that it is "aggrieved" under Code § 59.1-373.
The term "aggrieved" has a settled meaning in
Virginia when it becomes necessary to
determine who is a proper party to seek court
relief from an adverse decision. In order
for a petitioner 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. The
petitioner "must show that he has an
immediate, pecuniary and substantial interest
in the litigation, and not a remote or
indirect interest" . . . . The word
"aggrieved" in a statute contemplates a
substantial grievance and means a denial of
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.
Virginia Beach Beautification Comm'n v. Board of Zoning Appeals,
231 Va. 415, 419-20, 344 S.E.2d 899, 903 (1986) (citations
omitted).
The Association neither owns nor occupies any real property.
No personal or property right of the Association was adjudicated
by the Commission. The Commission did not order the Association
to act or to refrain from acting. Nothing in the record suggests
that the Association holds any right that will be affected by the
outcome of this case. We agree with the trial court's finding
that the Association was not a "person aggrieved" under the
statute.
The Association contends that it has representative standing
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to assert the rights of its members who have been injured by the
Commission's action. The Association relies upon Citizens for
Clean Air v. Commonwealth ex rel. State Air Pollution Control
Bd., 13 Va. App. 430, 412 S.E.2d 715 (1991), in which we stated,
obiter dicta:
As an association organized to protect
the interests of individuals who would be
entitled to bring suit in their own right,
[the association] may bring suit in its
representative capacity.
Id. at 435, 412 S.E.2d at 718. In Citizens for Clean Air, we
found support for "associational standing" in Lynchburg Traffic
Bureau v. Norfolk & W. Ry. Co., 207 Va. 107, 108, 147 S.E.2d 744,
745 (1966), which held:
[I]t is well settled that "in order to
entitle any person to maintain an action in
court it must be shown that he has a
justiciable interest in the subject matter in
litigation; either in his own right or in a
representative capacity."
Citizens for Clean Air, 13 Va. App. at 435, 412 S.E.2d at 718
(emphasis in original).
In W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377,
478 S.E.2d 295 (1996), a home builders association brought a suit
for declaratory judgment seeking invalidation of county
ordinances that increased building permit fees. Id. at 379, 478
S.E.2d at 297. The Supreme Court reaffirmed its holding in
Lynchburg Traffic Bureau, stating:
A plaintiff has standing to institute a
declaratory judgment proceeding if it has a
"justiciable interest" in the subject matter
of the proceeding, either in its own right or
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in a representative capacity.
Id. at 383, 478 S.E.2d at 299. However, the Supreme Court held
that the association lacked standing because it had failed to
show that its own rights would be affected by the outcome of the
proceeding. The Court noted that the association neither built
houses nor paid building permit fees. Id. Moreover, the Court
said:
This conclusion is not altered by the
fact that the Association purports to act in
a "representative capacity" on behalf of its
members. An individual or entity does not
acquire standing to sue in a representative
capacity by asserting the rights of another,
unless authorized by statute to do so.
Id. at 383, 478 S.E.2d at 300.
This passage in Carnes clarified the Supreme Court's
recognition of representational standing in Lynchburg Traffic
Bureau and tacitly overruled our extension of that standing in
Citizens for Clean Air. Furthermore, the result in Carnes was
reached despite the provision that the article governing
administration of declaratory judgments is to be liberally
interpreted. See Code §§ 8.01-184, 8.01-191; Fairfax County v.
Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982).
We note that federal courts have permitted organizations to
pursue legal action on behalf of their members. 3 We recognize
3
See, e.g., Warth v. Seldin, 422 U.S. 490, 511 (1975). In
Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333
(1977), the United States Supreme Court: "recognized that an
association has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
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that granting such standing may provide significant benefits in
judicial economy and for interested parties. See 14A Michie's
Jurisprudence Parties § 11 (1989). However, Virginia holds that
an association is not the alter ego of its individual members.
The mere fact that its members have an interest in litigation
does not, per se, vest the association with a justiciable
interest in the litigation.
Virginia recognizes representational standing only when it
is specifically authorized by the legislature. See Carnes, 252
Va. at 383, 478 S.E.2d at 300. Code § 59.1-373 contains no such
authorization. Furthermore, this suit, brought against a state
agency, is a suit against the Commonwealth and requires strict
adherence to the statutes waiving sovereign immunity. See
Halberstam v. Commonwealth, 251 Va. 248, 250-51, 467 S.E.2d 783,
784 (1996); Virginia Bd. of Medicine v. Virginia Physical Therapy
Ass'n, 13 Va. App. 458, 464-65, 413 S.E.2d 59, 63 (1991), aff'd,
245 Va. 125, 427 S.E.2d 183 (1993). We must construe the
Commonwealth's waiver of its sovereign immunity narrowly. See
Virginia Bd. of Medicine, 13 Va. App. at 464-65, 413 S.E.2d at
63. Thus, the trial court correctly held that the Association
lacked standing to maintain this suit.
Accordingly, we affirm the trial court's dismissal of the
appellants' petition for review.
germane to the organization's purpose; and (c) neither the claim
asserted, nor the relief requested, requires the participation of
individual members in the lawsuit." Id. at 343.
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Affirmed.
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