                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia


ROBIN J. PEARSALL
AND
MONUMENT AVENUE PARK ASSOCIATION
                                            OPINION BY
v.        Record No. 0696-97-2      JUDGE JERE M. H. WILLIS, JR.
                                         JANUARY 20, 1998
THE VIRGINIA RACING COMMISSION,
COLONIAL DOWNS, L.P.
AND
STANSLEY RACING CORPORATION

          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                        T. J. Markow, Judge

          Patrick M. McSweeney (John L. Marshall, Jr.;
          McSweeney, Burtch & Crump, P.C., on briefs),
          for appellants.

          Teresa C. Manning, Assistant Attorney General
          (Richard Cullen, Attorney General; Michael K.
          Jackson, Senior Assistant Attorney General;
          Donald R. Ferguson, Assistant Attorney
          General, on brief), for appellee Virginia
          Racing Commission.

          John C. Ivins, Jr. (James L. Weinberg;
          Chandra D. Lantz; Hirschler, Fleisher,
          Weinberg, Cox & Allen, P.C., on brief), for
          appellees Colonial Downs, L.P. and Stansley
          Racing Corporation.



     Robin J. Pearsall and the Monument Avenue Park Association

(Association) contend that the trial court erred in ruling that

the Association was not a "person aggrieved," see

Code § 59.1-373, and that, for that reason, the Association

lacked standing to appeal from a decision of the Virginia Racing
                                        1
Commission, an administrative agency.       We disagree.
     1
      The appellants do not contend that the trial court erred in
     The Virginia Racing Commission (Commission) regulates horse

racing and pari-mutuel betting in the Commonwealth, including the

issuance of licenses to persons or entities desiring to operate

race tracks and betting facilities.    Code §§ 59.1-364 et seq.     On

October 12, 1994, the Commission licensed Colonial Downs, L.P.

(Colonial Downs) and Stansley Racing Corporation (Stansley) to

own and operate a horse race track.    On December 20, 1995, the

Commission issued Colonial Downs and Stansley a license to

operate a betting parlor at 3200 West Broad Street in Richmond.
     Colonial Downs and Stansley sought an amendment of the

Commission's order to relocate the betting parlor at 4700 West

Broad Street, located in Richmond and Henrico County.   On June

25, 1996, following public notice and a hearing, the Commission

granted that amendment to the betting parlor license.

     Pearsall and the Association appealed the Commission's

decision to the trial court.   The Association is a civic group

composed of individuals residing in the City of Richmond and

within the vicinity of the betting parlor.

     The trial court conducted a hearing on the appeal.    Landon

Wellford testified that he was a member of the Association and

owned a residence located within sight of the betting parlor.      He

stated that he believed that the licensing of the parlor "would

negatively impact the neighborhood and probably hurt property

dismissing Robin J. Pearsall from their petition for review.
Accordingly, we confine our review to the trial court's dismissal
of the Association.



                               - 2 -
values as a result of a negative commercial

use . . . inappropriately mixed in with a residential use."

     Robert Goodman, an expert on the effects of the siting and

operation of gambling facilities on residential neighborhoods,

testified that the presence of the betting parlor would reduce

residential property values in the neighborhood.   Cecil E. Sears,

an expert on residential property values in the City of Richmond,

testified that residences located within view of the betting

parlor or on streets immediately behind the facility would likely

suffer a decline in value.
     The trial court dismissed the Association's petition for

review.   It held that Wellford had standing to bring the appeal,

but concluded that his membership in the Association did not

confer that standing on the Association.   It ruled that neither

the Association nor Pearsall was a "person aggrieved."    For this

reason, the trial court dismissed the appeal.

     The sole issue in this appeal is whether the Association had

standing to seek review of the Commission's decision on behalf of

its members.
          The concept of standing concerns itself with
          the characteristics of the person or entity
          who files suit. The point of standing is to
          ensure that the person who asserts a position
          has a substantial legal right to do so and
          that his rights will be affected by the
          disposition of the case. In asking whether a
          person has standing, we ask, in essence,
          whether he has sufficient interest in the
          subject matter of the case so that the
          parties will be actual adversaries and the
          issues will be fully and faithfully
          developed.



                               - 3 -
Cupp v. Board of Supervisors, 227 Va. 580, 589, 318 S.E.2d 407,

411 (1984) (citation omitted).

     Standing, in this case, is governed by statute.     See

Environmental Defense Fund v. Virginia State Water Control Bd.,

12 Va. App. 456, 462, 404 S.E.2d 728, 732 (1991).   Code

§ 59.1-373 expressly limits the right to appeal a decision of the

Commission.
          Any person aggrieved by a refusal of the
          Commission to issue any license or permit,
          the suspension or revocation of a license or
          permit, the imposition of a fine, or any
          other action of the Commission, may, within
          thirty days of such action, appeal to the
                                                 2
          Circuit Court of the City of Richmond.

Id. (emphasis added).   Thus, the determinative inquiry in this

appeal is whether the Association is a "person" that was

"aggrieved" by an action of the Commission.

     Code § 59.1-365 defines a "person" to include "a natural

person, partnership, joint venture, association, or corporation."

An unincorporated association may sue or be sued.   Code

§ 8.01-15.   The Association is an unincorporated civic group

comprised of persons in a defined region of the City of Richmond.

Accordingly, we conclude that the Association is a "person" for

purposes of this appeal.
     2
      The General Assembly modified Code § 59.1-373, requiring
compliance with Article 4 of the Administrative Process Act in
the review and appeal of the Commission's decisions. 1996 Va.
Acts ch. 573. However, the amendment does not apply to agency
actions commenced prior to July 1, 1996. 1996 Va. Acts ch. 573,
cl. 2. Accordingly, we refer to the statute in this opinion as
it was written prior to the amendment.




                                 - 4 -
     However, the ability to initiate an action does not confer

upon a party the right to maintain an action involving no direct

interest of that party.   To have standing, the Association must

demonstrate that it is "aggrieved" under Code § 59.1-373.
          The term "aggrieved" has a settled meaning in
          Virginia when it becomes necessary to
          determine who is a proper party to seek court
          relief from an adverse decision. In 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.


Virginia Beach Beautification Comm'n v. Board of Zoning Appeals,

231 Va. 415, 419-20, 344 S.E.2d 899, 903 (1986) (citations

omitted).

     The Association neither owns nor occupies any real property.

No personal or property right of the Association was adjudicated

by the Commission.   The Commission did not order the Association

to act or to refrain from acting.      Nothing in the record suggests

that the Association holds any right that will be affected by the

outcome of this case.   We agree with the trial court's finding

that the Association was not a "person aggrieved" under the

statute.

     The Association contends that it has representative standing


                               - 5 -
to assert the rights of its members who have been injured by the

Commission's action.   The Association relies upon Citizens for

Clean Air v. Commonwealth ex rel. State Air Pollution Control

Bd., 13 Va. App. 430, 412 S.E.2d 715 (1991), in which we stated,

obiter dicta:
               As an association organized to protect
          the interests of individuals who would be
          entitled to bring suit in their own right,
          [the association] may bring suit in its
          representative capacity.

Id. at 435, 412 S.E.2d at 718.    In Citizens for Clean Air, we

found support for "associational standing" in Lynchburg Traffic

Bureau v. Norfolk & W. Ry. Co., 207 Va. 107, 108, 147 S.E.2d 744,

745 (1966), which held:
          [I]t is well settled that "in order to
          entitle any person to maintain an action in
          court it must be shown that he has a
          justiciable interest in the subject matter in
          litigation; either in his own right or in a
          representative capacity."


Citizens for Clean Air, 13 Va. App. at 435, 412 S.E.2d at 718

(emphasis in original).

     In W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377,
478 S.E.2d 295 (1996), a home builders association brought a suit

for declaratory judgment seeking invalidation of county

ordinances that increased building permit fees.    Id. at 379, 478

S.E.2d at 297.   The Supreme Court reaffirmed its holding in

Lynchburg Traffic Bureau, stating:
               A plaintiff has standing to institute a
          declaratory judgment proceeding if it has a
          "justiciable interest" in the subject matter
          of the proceeding, either in its own right or


                                 - 6 -
             in a representative capacity.


Id. at 383, 478 S.E.2d at 299.    However, the Supreme Court held

that the association lacked standing because it had failed to

show that its own rights would be affected by the outcome of the

proceeding.    The Court noted that the association neither built

houses nor paid building permit fees.        Id.   Moreover, the Court

said:
                  This conclusion is not altered by the
             fact that the Association purports to act in
             a "representative capacity" on behalf of its
             members. An individual or entity does not
             acquire standing to sue in a representative
             capacity by asserting the rights of another,
             unless authorized by statute to do so.

Id. at 383, 478 S.E.2d at 300.

        This passage in Carnes clarified the Supreme Court's

recognition of representational standing in Lynchburg Traffic

Bureau and tacitly overruled our extension of that standing in

Citizens for Clean Air.     Furthermore, the result in Carnes was

reached despite the provision that the article governing

administration of declaratory judgments is to be liberally

interpreted.     See Code §§ 8.01-184, 8.01-191; Fairfax County v.

Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982).

        We note that federal courts have permitted organizations to

pursue legal action on behalf of their members. 3       We recognize
        3
      See, e.g., Warth v. Seldin, 422 U.S. 490, 511 (1975). In
Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333
(1977), the United States Supreme Court: "recognized that an
association has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are


                                 - 7 -
that granting such standing may provide significant benefits in

judicial economy and for interested parties.       See 14A Michie's

Jurisprudence Parties § 11 (1989).       However, Virginia holds that

an association is not the alter ego of its individual members.

The mere fact that its members have an interest in litigation

does not, per se, vest the association with a justiciable

interest in the litigation.

      Virginia recognizes representational standing only when it

is specifically authorized by the legislature.       See Carnes, 252

Va. at 383, 478 S.E.2d at 300.    Code § 59.1-373 contains no such

authorization.   Furthermore, this suit, brought against a state

agency, is a suit against the Commonwealth and requires strict

adherence to the statutes waiving sovereign immunity.       See

Halberstam v. Commonwealth, 251 Va. 248, 250-51, 467 S.E.2d 783,

784 (1996); Virginia Bd. of Medicine v. Virginia Physical Therapy

Ass'n, 13 Va. App. 458, 464-65, 413 S.E.2d 59, 63 (1991), aff'd,

245 Va. 125, 427 S.E.2d 183 (1993).      We must construe the

Commonwealth's waiver of its sovereign immunity narrowly.         See

Virginia Bd. of Medicine, 13 Va. App. at 464-65, 413 S.E.2d at

63.   Thus, the trial court correctly held that the Association

lacked standing to maintain this suit.

      Accordingly, we affirm the trial court's dismissal of the

appellants' petition for review.

germane to the organization's purpose; and (c) neither the claim
asserted, nor the relief requested, requires the participation of
individual members in the lawsuit." Id. at 343.



                                 - 8 -
        Affirmed.




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