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  1. #1
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    Aug 2018
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    Default Who Has Standing to Object to Increased Traffic on an Easement

    My question involves real estate located in the State of: Virginia; I am the servient owner of an easement to a vet clinic that was a single family residence for 58 years. Their land is landlocked and non conforming in every way. They have applied for a SUP to expand their facility and increase traffic across the easement. We have filed the appropriate appeal. Now the County attorney has informed us the BZA will be notified that we are not an “aggrieved” party and lack Standing to appeal. How can I obtain Standing and aggrieved status?

    They are 3 property owners whose land is crossed in servient interest. If we band together and file jointly is it enough to meet the requirement of “not shared by general public” phrase.

  2. #2
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    Nov 2013
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    Default Re: Aggrieved Standing

    The first question is does your zoning permit a commercial use of land in a residential area. Are there any applications for variances to the zoning?

    What is the grant language for the easement? Does it say anything about use or is it just an ingress/egress easement?

    I'm not familiar with Virginia procedures where you need to gain status of an aggrieve party to be able to file an appeal. I would appreciate it if you could explain that. Are you not permitted to appear before the Board of Zoning Appeal if the County attorney does not designate you an aggrieved party?

    I don't know what to make of the not shared by general public phrase from you post. A commercial enterprise that is open to the public will use the easement by the general public.

    Not much to go on to give you any sort of informed information. If the easement was for one property that was residential and now commercial, that may rise to an overburden use of the easement. But Virginia is pretty liberal in the interpretation of easement use.

    A party alleging that a particular use of an easement is unreasonably burdensome has the burden of proving his allegation. Shenandoah Acres, Inc. v. D.M. Conner, Inc., 256 Va. 337, 342, 505 S.E.2d 369, 371 (1998); Hayes v. Aquia Marina, Inc., 243 Va. 255, 259, 414 S.E.2d 820, 822 (1992). Generally, when an easement is created by grant or reservation and the instrument creating the easement does not limit its use, the easement may be used for "any purpose to 503*503 which the dominant estate may then, or in the future, reasonably be devoted." Id. at 258, 414 S.E.2d at 822 (quoting Cushman Virginia Corp. v. Barnes, 204 Va. 245, 253, 129 S.E.2d 633, 639 (1963)); see also Collins v. Fuller, 251 Va. 70, 72, 466 S.E.2d 98, 99 (1996). However, this general rule is subject to the qualification that no use may be made of the easement, different from that established when the easement was created, which imposes an additional burden on the servient estate. Id.; Hayes, 243 Va. at 258-59, 414 S.E.2d at 822; Cushman, 204 Va. at 253, 129 S.E.2d at 639-40.
    There is power in numbers so if the 3 properties get together and combine there resources and hire an attorney to represent you, you have a better chance.

  3. #3
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    Aug 2018
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    10

    Default Re: Aggrieved Standing

    The vet clinic is a by right. The new use Wildlife Center requiring a SUP is not. We have appealed the Zoning Administrator ruling that a SUP is sufficient for the non conforming lot, expansion and lack of road frontage. County attorney says even if new traffic across my land and new building to be a substitute principle structure does not give me an aggreived status. He states we do not have standing and the BZA should not even hear the merits of our appeal.

    The word "aggrieved" in a statute contemplates a *903 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

  4. #4
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    Nov 2013
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    Default Re: Aggrieved Standing

    Here is the problem you face: You are dealing with two separate areas of law. On the one hand you have the zoning and SUP laws and procedures of your state. They don't have to take into account your property rights with respect to you being a servient estate. They rule strictly on zoning laws. On the other hand, you have your property rights under the case and common law of the state that may consider the servitude on your property to increased by what the zoning laws allow. You can't try your property rights before the BZA.

    However, it appears that you should be able to be an aggrieved person according to the statute.

    15-200 Standing to appeal
    An official determination made in the administration or enforcement of the zoning enabling statutes or the zoning ordinance may be appealed to the BZA. Virginia Code § 15.2-2311(A). In order to have a right to appeal an official determination, the appellant must be a person aggrieved by the determination, or be an officer, department, board or bureau of the locality. Virginia Code § 15.2-2311(A). The meaning of aggrieved is settled under Virginia case law:

    . . . [I]n 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.
    https://www.albemarle.org/upload/ima...bzaappeals.pdf

    I don't know what the time table is on this matter and what has already transpired. But if decisions have been made, you only have 30 days to file in court to be heard.

    A person aggrieved by a decision of the governing body may appeal the decision to the circuit court within 30 days. Virginia Code § 15.2-2285(F). A person aggrieved by a decision of the BZA, or any aggrieved taxpayer or any officer, department, board or bureau of the locality, may appeal the BZA’s decision to the circuit court by filing a petition for writ of certiorari within 30 days. Virginia Code § 15.2-2314.
    Persons challenging a decision as a person aggrieved must allege that they are aggrieved within the meaning of the Virginia Supreme Court’s decision in Friends of the Rappahannock v. Caroline County, 286 Va. 38, 743 S.E.2d 142 (2013).

    Once timeliness and standing are addressed, the next issue is whether the decision was made in compliance with the applicable zoning regulations. If the decision was made in violation of the zoning regulations (e.g., there was an express prerequisite for eligibility to obtain the permit, such as having a specific pre-existing underlying zoning designation), the action will be found to be arbitrary and capricious and not fairly debatable, thereby rendering the decision void and of no effect. Newberry Station Homeowners Association v. Board of Supervisors of Fairfax County, 285 Va. 604, 740 S.E.2d 548 (2013), quoting Renkey v. County Board of Arlington County, 272 Va. 369, 376, 634 S.E.2d 352, 356 (2006).
    https://www.albemarle.org/upload/ima...usepermits.pdf

    I suggest you or you and the other 2 properties consult with an attorney ASAP as to not miss the window of appeal to the court.

  5. #5
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    Aug 2018
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    10

    Default Re: Aggrieved Standing

    Thanks. 2 of 3 have attorneys. The County attorney said he is going to advise BZA not to hear our case because we are not aggrieved. He said my house is 793 ft away and thus not affected. FOR vs Caroline said proximity of 1500 ft was close enough and referenced Riverview which said 2000 ft was proximity. To save costs my attorney was researching if BZA could deny hearing and neighbors attorney researched “standing”. Since I can not talk with him I am trying to ascertain we have standing quicker. Neighbor is on vacation so I am waiting on him to return 24 hours before hearing is scheduled.

    My attorney just told me that there multiple cases that support standing for us. Based upon what I read, we need to get the 3rd property owner on board and then 100% of servient owners are in this making us a small group that the general public does not share interests with.

    Mangum vs Emporia “When an ordinance is plain and unambiguous, there is no room for interpretation or construction; the plain meaning and intent of the ordinance must be given it.” Emphasis added by Court.

    Based upon appeal and ordinances the only wiggle room for the County is to challenge standing because I think we have painted them into a corner.

  6. #6
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    Default Re: Aggrieved Standing

    As I have already posted, you are dealing with zoning laws of your state. That doesn't address your property rights with respect to you and the other neighbors being servient estates and having the servitude increased on your property. You should discuses that with your attorney.

    You have the cite backwards. It is CITY OF EMPORIA BOARD OF ZONING APPEALS v. Wayne MANGUM.

    When an ordinance is plain and unambiguous, there is no room for interpretation or construction; the plain meaning and intent of the ordinance must be given it." Board of Zoning Appeals v. 852 L.L.C., 257 Va. 485, 489, 514 S.E.2d 767, 769 (1999); accord Donovan v. Board of Zoning Appeals, 251 Va. 271, 274, 467 S.E.2d 808, 810 (1996); McClung v. County of Henrico, 200 Va. 870, 875, 108 S.E.2d 513, 516 (1959). Additionally, the decision of a board of zoning appeals is presumed to be correct on appeal to the circuit court, and the appealing party has the burden of showing that the board applied erroneous principles of law or 782*782 that the board's decision was plainly wrong and in violation of the purpose and intent of the zoning ordinance. Higgs v. Kirkbride, 258 Va. 567, 573, 522 S.E.2d 861, 864 (1999); 852 L.L.C., 257 Va. at 489, 514 S.E.2d at 770; Masterson v. Board of Zoning Appeals, 233 Va. 37, 44, 353 S.E.2d 727, 732-33 (1987).
    What this says is that the decision of the Board of Zoning Appeals is presumed correct if there is an appeal to the circuit court and the appealing party has the burden to show that the BZA was erroneous in applying the law.

    I really don't see how that case helps you cause.

  7. #7
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    Aug 2018
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    10

    Default Re: Aggrieved Standing

    Examples


    1). County has accepted an application for SUP to allow for the Wildlife Center to build a 2640 sq ft Raptor cage on a non conforming land locked and in front of the Primary structure and calling the flight cage the new Primary Structure.

    No nonconforming use shall be enlarged, intensified or increased, nor intensified to occupy a larger structure or building than was occupied at the effective date of adoption or subsequent amendment of this ordinance, with the exception that an existing, nonconforming, single-family residential structure and use in a commercial or industrial zoning district shall be allowed a 50 percent increase (either one time or cumulative) in the square footage of the use or structure in existence at the time of the adoption of this ordinance.

    2). The Wildlife Center does some Veterinary services but more than 50% of all cases are orphaned animals dropped off to be reared by them. Over the last 3 years they have built unlawful cages ( no zoning or inspections, in front of the set back line, and in excess of the 256sq ft maximum for a accessory structure under vVirginia Uniform Building Code) which we are also saying violates non-conforming Code and outside cages do not fit definition of Vet Clinic because the house orphans not requiring medical care. We say the code kicks the use into a Commercial Kennel use. The BA says the cages house patients of Vet and are going to be under new SUP. He states animals is not defined in Code so it means dogs and cats that most Vets care for. Commercial Kennels does state dogs, cats and household pets. We say animals are all animals. Plain language. The Commercial Kennel has stricter setbacks, landscaping buffers and rules for waste and carcass removal. All other Vets in County only have indoor facilities. Five have built large buildings for boarding but none outside.

    Veterinary hospital/clinic: Any establishment rendering surgical and medical treatment of animals. Boarding of animals shall only be conducted indoors, on a short term basis, and shall only be incidental to such hospital/clinic use, unless also authorized and approved as a commercial kennel.



  8. #8
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    Nov 2013
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    Default Re: Aggrieved Standing

    I'm guessing that what you posted are portions of your towns zoning ordinances. That is all well and good but as I've already told you twice that does not address your property rights as a servient estate.

    The BOA is a legislative body and if they approve the application it will likely be upheld unless the one challenging it can show that it is arbitrary and capricious. That is not something easily done under Virginia common law. If there is more than one appropriate use of the land under the current zoning then the BOA gets to decide which one will either prevail or be a more appropriate use.

    You have an attorney. He should know what to do.

  9. #9
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    Aug 2018
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    10

    Default Re: Aggrieved Standing

    Thanks for your insights. I appreciate the thought provoking posts. It gave me what to expect from the opposition. BZA is Wenesday, I will update you.

  10. #10
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    Jan 2006
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    Default Re: Aggrieved Standing

    I didn’t read all of the responses but what I see is

    you're mixing apples and oranges

    your rights as a servient tenant do not give you standing to object to the reclassification. Of the land. I don’t know if you have standing but given the proximity, I would think you would as changes in land use and increased traffic affects all surrounding properties

    it does give you a right to sue if the new use will result in an overburdening of the easement. That is a private action between you and the land owner

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