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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

What is the Opposite of NIMBY? Deep Pockets Try a Hail Mary in the Virginia Supreme Court

An article in the Virginia Mercury advises that the Wegmans grocery company is seeking a rehearing before the Supreme Court of Virginia of its 7-0 decision finding that several landowners in Hanover county had standing to challenge a decision of the Hanover Board of Supervisors concerning rezoning and special exceptions permitting Wegmans to build a large distribution and warehousing facility near their property. What's more, an amicus brief filed by 21 real estate, housing and business groups has joined in asking the Court to reconsider its judgment, asserting that "If not reconsidered, [the Supreme Court of Virginia's decision in Morgan v. Hanover Board of Supervisors] will have disastrous consequences for all types of development in Virginia."


You can read the analysis of the Court's opinion by Steve Emmert here. The final paragraph of that analysis shows that the decision is no nearly so disastrous as the amici seem to believe (or hope that the Court will believe.) More to the point, a unanimous opinion by authored by the the Justice Kelsey, who is arguably the most pro-business member of the Court, is not likely to garner a rehearing. There are two points that should be considered -- 1) as made clear by the Court finding standing does not mean that the landowners will prevail in the trial court . . . only that they will have their case heard. 2) Standing in cases like is, as the term "particularized harm" implies turn on the "particularized" facts of the case. In short, this is the quintessential "case that proves the rule."


So while the landowners' case came be characterized as a "not in my backyard" ("NIMBY") challenge to the government's exercise of its legislative power to rezone and grant exceptions to land use restrictions, NIMBY litigants can have standing if the harm of the government's decision is specific to them as against the general public. This does not mean that they will prevail on their claim, but they do have the right to bring it.


So, what is the opposite of NIMBY? For the business groups are clearly lining up with Wegmans to head off future NIMBY challenges. Anti-NIMBY does not have a ring to it. And YIMBY does not apply, because that refers to landowners who encourage development near their property -- often in the hope that it will increase the value of their land. NAMBI ("Not Against My Business or Industry") has been used occasionally, but it is too close to "Bambi" for my tastes. How about BIGHAMS? Business Interests Generally Have A lot of Money, Suckers.




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