Appeals Granted

Case

FRIENDS OF THE RAPPAHANNOCK, ET AL. v. CAROLINE COUNTY BOARD OF SUPERVISORS, ET AL.
(Record Number 120874)

From

The Circuit Court of Caroline County; J. Ellis, Judge.

Counsel

David S. Bailey, Jennifer A. French and Tammy L. Belinsky (The Environmental Law Group, PLLC) for appellants.

M. Ann Neil Cosby (Sands Anderson, P.C.) for appellee Caroline County Board of Supervisors. Charles W. Payne, John R. Walk, and Isaac A. McBeth (Hirschler Fleischer) for appellees Black Marsh Farm, Inc. and Vulcan Construction Materials, L.P.

Assignments of Error

The trial court erred in applying the aggrieved person standard to evaluate whether Petitioners/Appellants have standing to appeal the Appellee BOS’s decision to grant the special exception permit where Petitioners/Appellants’ action was filed under the Virginia Declaratory Judgement Act, which applies the “justiciable interest” test for standing, and where the enabling statute for review of Special Exception Permits contains no statutory requirement to apply the aggrieved person standard to determine standing.
The trial court erred in ruling that Appellants, Mitchell, Elizabeth Reynolds, Ronald Mosely, Kurt Kuberek and Sally Kizer had alleged “non-particularized harms” insufficient for standing where, in sum . . . (2) Appellant Mitchell holds a leasehold interest (and a right of first refusal purchase option) in land adjacent to the Vulcan site, which he uses for hunting, fishing and conservation purposes, where Mitchell asserts that the noise and industrial operation will directly interfere with such rights and uses; (3) Appellants Elizabeth Reynolds, Ronald Mosely and Kurt Kuberek all own residential lots and homes directly across the river approximately 1500 feet from the Vulcan operation, and who asserted their uses and enjoyment of the river for fishing, wildlife observation and scenic enjoyment would be adversely affected by the noise, dust and operations of the industrial activity by Vulcan, and the connected barge traffic on the river; and (4) Appellant Sally Kizer owns 164 acres of land, part of which adjoins and is adjacent to the Vulcan operation, with a right of way across the Black Marsh Farm, and who asserted that such operation, with its dust and noise are not consistent with the comprehensive plan, would interfere with her use and enjoyment of her land and interfere with her opportunities for future tenants on the land.

Date Granted

11-6-2012