(Posted February 2, 2023) Honestly, how could that blasted groundhog not see his shadow when countless floodlights rudely greet him first thing in the morning? All he wants to do on a cold, dreary winter day like this is get up and go out to the driveway to get his morning newspaper to enjoy with a cup of coffee in front of the fire, only to find a horde of media there waiting for him with cameras rolling. Of course there’ll be six more weeks of winter.

(Sigh) Let’s check in on today’s published opinion from the Supreme Court of Virginia.


Land use

I could just as easily have titled this section Standing, because that’s the dominant issue in Morgan v. Hanover County. The genesis of today’s dispute is the prospective development of a vacant site into a huge distribution facility in Hanover for the major retailer Wegmans.

This site was rezoned in 1995 for industrial use, but it was regarded as speculative zoning, because there wasn’t a concrete development plan. The land sat idle for a generation before Wegmans contracted to buy it from the owner, hoping to build the facility mentioned above. To do that, it needed to tweak the zoning a bit and get a special use permit.

The retailer sought such approval for those changes; the planning commission approved both applications. That sent the matter to the county’s board of supervisors for final action.

The board approved the applications in 2020. You’ll recall that public life sustained a major hit that year from the pandemic, so the board conducted its business under some form of Covid protocols.

These neighbors filed suit in circuit court to challenge the land-use decisions. They objected to the granting of the retailer’s requests, and to the manner in which the board of supervisors decided the matter. The circuit court eventually sustained demurrers and dismissed the action, concluding that the neighbors hadn’t established standing to sue.

Last year, the justices agreed to take a look, and today they reverse, sending the case back for a decision on the merits. Justice Kelsey, writing for a unanimous court, notes that standing is a threshold issue that requires two things in land-use challenges like this, to establish that the neighbors have a personal stake in the case. They have to own or occupy property that’s near the subject site, and they have to show that they would suffer a particularized harm that’s different from the development’s effect on the public generally.

The court today holds that the complaint here satisfied both of these requirements. The neighbors are all adjacent to or near the 200-acre site, and they alleged specific effects on their properties sufficient to enable them to bring these claims. They may or may not ultimately win on the merits – the Supreme Court today specifically declines to comment on the substantive issues of the case – but they’ll have a shot at trial now.

This is the latest in a recent string of significant SCV decisions on standing. The justices today warn trial courts not to “conflate the threshold standing inquiry with the merits of [a litigant’s] claim.” An energetic defendant might try to couch a merits defense in standing terms, hoping for a quick win on an issue that the justices have described as jurisdictional. But if the pleadings allege facts that would, if proved, establish the plaintiff’s right to sue, a resolution of the issue must await trial on the merits.