By: Ryan Kennedy  [10/6/22]

On a small peninsula extending into the Chesapeake Bay, a developer has applied for several variances. It seeks to allow the disturbance of steep slopes, exceed the maximum structure size for its lot, clear-cut old-growth trees, and disturb marshland. The developer’s lot is one of seven towards the end of a long gravel road. Each lot is wooded and several acres large. All of the existing owners want to challenge the plan, which is sailing through approvals at the local planning and zoning office. If built, untold ecological harm could result, and the character of the neighborhood would be forever changed. The neighbors want to work together to challenge the plan, however, who should take the lead and how?

This is only one example, but the basic problem confronts numerous people each day. That is, if your neighbor uses their property in an illegal way, and the government won’t act, what can you do?

​The Virginia Supreme Court recently decided on two cases about standing in land-use cases. Standing generally refers to whether someone has the right to assert a claim or bring a lawsuit. In zoning cases, standing questions often arise when one party asks the Courts to review the government’s land use decisions. Plaintiffs need to have a concrete interest in the thing they’re suing over, or suffered some damage, that can be redressed by a judicial decision.

In the context of challenging someone’s land-use decisions, Virginia law first requires that a plaintiff live close enough to the offending property for their interest to be “direct, immediate, pecuniary, and substantial.” Second, the plaintiff must suffer some harm “different from that suffered by the public generally.” In zoning cases, this often means only adjoining property owners are safe from challenges to their standing.

The first of these two recent cases, Seymour v. Roanoke County Board of Supervisors, involved challenges to permits issued in Roanoke for an expanded wildlife rehabilitation center. The plaintiffs also challenged the decision to retroactively approve several unpermitted structures used by the existing center. In their complaint to the Circuit Court the plaintiffs explained that access to the center required the use of a shared driveway the plaintiffs were responsible for maintaining. The expanded use of the center would increase the plaintiffs’ driveway maintenance obligation and expand a range of other harms the plaintiffs were already suffering. Including, noise, dust, health concerns, lower property value, and increased traffic.

In its Seymour decision, the Virginia Supreme Court ruled that the additional traffic risks were sufficiently different from any harm to “the public generally,” and reversed the trial court. Though increased traffic alone may not have been enough, the Court noted that the traffic, in this case, had uniquely harmed the plaintiffs by increasing maintenance costs on the driveway, threatening the plaintiffs’ safety, lowering property values, and introducing dust, noise, and light pollution.

In Anders Larsen Trust v. Board of Supervisors of Fairfax County, the Virginia Supreme Court reversed a Circuit Court judgment and allowed several neighbors to continue their challenge to a residential treatment center planned for their neighborhood. Each plaintiff owned property next to the proposed treatment center. They alleged that the center would diminish their property values and that increased car traffic would negatively impact their quality of life. The Court wrote that: “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.”

The opinion in Anders Larsen Trust contrasted the plight of the plaintiffs against those in other cases where more distant neighbors complained of impacts such as noise, dust, inability to locate tenants, or aesthetic impacts. While most people consider things like noise or aesthetic impacts to be important considerations, the law often requires something more. Fortunately for these plaintiffs, the Court agreed and breathed new life into their claims.

Often, neighbors who are willing to come forward and be the face of a zoning challenge find that the basic rule recited in both cases is actually quite limiting. These new cases from the Virginia Supreme Court highlight the need to have an actual, quantifiable interest in the outcome of the case. At the same time, the Circuit Court results in both cases show how easily the decision can go the other way. It is not enough to be aware of an improper use of the zoning code somewhere in your community, the right plaintiff is needed.

While both of these new cases include allegations of reduced property value, that will not be so in every case. One of the challenges facing an attorney resisting a land-use change is to think hard about standing and articulating a harm that may not be obvious to many. If you are concerned about a land use issue in your community, the attorneys of this law firm have extensive experience dealing with these issues.

To learn about how Dunlap Bennett & Ludwig can assist you with your legal needs, contact us by calling 800-747-9354 or by emailing clientservices@dbllawyers.com.


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Posted in: Litigation & Disputes, Real Estate

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