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On June 6, 2013, the Virginia Supreme Court issued a decision in favor of the Caroline County Board of Supervisors, defeating a well-funded effort to reverse the board’s decision to grant a special use permit allowing Hirschler Fleischer client, Vulcan Construction Materials, to transport sand and gravel from the 514-acre Black Marsh Farm facility via barge. The appeal was launched by Friends of the Rappahannock (FOR) and a number of individual plaintiffs; in its ruling, the Supreme Court upheld the decision of the Caroline County Circuit Court, which dismissed the case on the basis that the plaintiffs did not have standing to proceed.

The Virginia Supreme Court clarified the requirements of standing to challenge a legislative zoning decision made by the local governing body.  Prior precedent dealing with appeals from Boards of Zoning Appeals held that advocacy groups which own no property lack standing under the “aggrieved party ” standard applicable to such decisions.  The Virginia Supreme Court held that the same “aggrieved party” standard applies to decisions of the governing body.

The ruling is noteworthy in that one of the individual plaintiffs owns land that borders the Black Marsh property. However, this plaintiff does not live on the property, and instead rents it to a tenant. This tenant declined to join FOR in appealing the board of supervisors’ decision and, in fact, had previously appeared at the public hearing to support Vulcan’s application for the special use permit.


The Black Marsh property fronts the Rappahannock River and is zoned “A.” This zoning category allows for sand and gravel extraction, but only under a special use permit that is granted by the Caroline County Board of Supervisors. Hirschler Fleischer attorney Charles W. Payne successfully represented Vulcan in the process of obtaining approval for this special use permit, despite the well-organized local opposition.

Upon approval of the special use permit by the board, FOR and others appealed the case to the Caroline County Circuit Court. In combination with the Caroline County Attorney, Black Marsh and Vulcan, whose litigation team was led by Hirschler Fleischer’s John R. Walk, challenged the standing of the plaintiffs to appeal the special use permit. For their part, FOR and the plaintiffs argued that the Supreme Court’s “aggrieved party” standard that applies to appeals of decisions from the Board of Zoning Appeals did not apply to appeals of decisions made by the Board of Supervisors.

The Circuit Court held that the “aggrieved party” standard applied and dismissed the case as to FOR and all of the individual plaintiffs. On appeal, the lower court’s decision on FOR’s lack of standing was affirmed when the Supreme Court only granted a writ as to the individual plaintiffs. At this point, the appeal dealt with two questions: whether the “aggrieved party” or some other standard applied, and whether some or all of the individual plaintiffs met this standard.

In his written opinion for the Supreme Court, Justice Leroy F. Millette, Jr., said, “We will affirm the judgment of the circuit court in dismissing the complaint for failure to allege a sufficient basis to demonstrate standing.” Justice Millette continued, “We further hold that, based on the insufficiency of allegations in their complaint, the individual complainants did not have standing to proceed.”

This latter statement illustrates another of the arguments against the appeal: all of the plaintiffs made generic allegations that they would be affected by dust, noise, etc., as a result of Vulcan’s operations at Black Marsh, despite significant evidence to the contrary that the operation would fully comply with all applicable regulations. The Hirschler Fleischer team successfully argued that generic allegations of this nature, unsupported by any factual particulars, do not establish standing. The Virginia Supreme Court agreed.

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Luis F. Ruiz

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