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Virginia Marine Resources Commission v Clark

Case No. 100034 (VA S.Ct., Apr. 21, 2011)

In these combined appeals, we consider whether the Court of Appeals erred in reversing the judgment of the Circuit Court of the City of Virginia Beach dismissing a petition for appeal from a decision of the Virginia Marine Resources Commission (VMRC) because the petition did not contain allegations sufficient to demonstrate standing.

BACKGROUND

The City of Virginia Beach filed an application with the VMRC to install a stormwater outfall pipeline (the pipeline project) in, on and over state-owned bottomlands located ocean-ward of 61st Street in Virginia Beach. The proposed pipeline project consisted of a 48-inch concrete outtake pipe that would be installed in the subaqueous ocean bottom for a distance of 940 feet from the mean low-water mark for the discharge of storm water. The pipe would be buried 10 feet below the mean low-water mark.

On May 27, 2008, the VMRC conducted a public hearing pursuant to Code § 28.2-1205 to consider the City’s application. At the hearing, a number of persons who resided at or owned property located on or near 61st Street and the Virginia Beach ocean front (collectively “the Residents”) appeared in opposition to the pipeline project arguing that the pipeline project was not needed, posed environmental and water quality concerns, and was not consistent with other discharge pipelines that extended 2000 feet into the ocean. After reviewing the VMRC staff recommendations, testimony presented on behalf of the City, project supporters, and project protesters, and the documents and correspondence produced at the hearing, the VMRC unanimously voted to approve the pipeline project on the condition that the pipeline be extended from 940 feet to 2000 feet.

The Residents appealed the VMRC’s decision to the Circuit Court of the City of Virginia Beach pursuant to Code § 28.2-1205(F). In their petition for appeal, the Residents alleged, in part, that “the VMRC made decisions adverse and/or objectionable to appellants, giving rise to this appeal.” The VMRC filed a motion to dismiss the appeal challenging the sufficiency of the Residents’ pleading arguing that, pursuant to Code § 28.2-1205(F), only persons aggrieved by a decision of the VMRC are entitled to judicial review of the decision and the Residents here failed to allege how they may be aggrieved. The City, in its answer and affirmative defenses, also asked the circuit court to dismiss the petition for appeal arguing that the Residents did not allege a “proper jurisdictional basis” for the appeal because they “fail[ed] to allege how they are aggrieved” by the VMRC’s decision.
 

 

Judge(s): Elizabeth B. Lacy
Jurisdiction: Virginia Supreme Court
Related Categories: Administrative Law , Property
 
Supreme Court Judge(s)
Bernard Goodwyn
Cynthia Kinser
Lawrence Koontz, Jr.
Elizabeth Lacy
Donald Lemons
LeRoy Millette, Jr.
William Mims

 

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feet. observed, concerns shared generally with the public. because the petition did not contain allegations sufficient to reasons why the regulation or case decision is deemed court of the city of virginia beach pursuant to code 28.2- as discussed above, a person seeking to appeal a decision the residents also posit that, as inhabitants or owners of raised by the vmrc and the city and concluded that the initiate an appeal does not, as the residents claim, vest them decline this invitation because that issue is not properly show that they were persons aggrieved by the vmrc decision. of the circuit court. and the cross-error assigned by the residents and combined the morris usa, inc. v. chesapeake bay found., inc., 273 va. 564, 319, 327-28, 634 s.e.2d 706, 711 (2006); mattaponi indian tribe, rise to this appeal." the petition and its attachments contain interest." id. at 593, 171 s.e. at 674. thus, it 6 (2001). out in rule 2a:4(b) and, in resolving the matter solely by an issue the court of appeals did not address waived further the court of appeals. the court of appeals did not address this dismiss we treat the factual allegations in the petition as we va. at 577, 643 s.e.2d at 226; barber v. vistarms, inc., 272 va. affected, or that a personal or property right was denied or v. record no. 100034 opinion by senior justice when the only wrong he has suffered is in common is "aggrieved" when used in this context. out the "only requirements" for a legally sufficient petition the group protesting the project initially consisted of 29 residents' petition alleged only "non-particularized claims of permits with regard to the pumping station were not within the standing. clark v. virginia marine res. comm'n, 55 va. app. requisite standing to pursue the appeal. see e.g., philip city, in its answer and affirmative defenses, also asked the court "improperly expanded the requirements of the rule" and petitioner be a "person aggrieved." similarly, the receipt of on may 27, 2008, the vmrc conducted a public hearing direct review of agency regulations and case decisions. see was established. the court of appeals' judgment, therefore, city of virginia beach they should have been granted leave to amend their pleading. we [i]t must affirmatively appear that such person had parties" and he would add "the pollution and health concerns the city of virginia beach filed an application with the project) in, on and over state-owned bottomlands located ocean- standard. philip morris, 273 va. at 572, 643 s.e.2d at 223. decision of the vmrc is entitled to judicial review of that which the circuit court considered included claims of various 2 sufficiency of the residents' pleading arguing that, pursuant to 12 residents were "aggrieved" by the vmrc decision and that the code 2.2-4026 of the virginia administrative process act (the generally. insurance ass'n v. commonwealth, 201 in this appeal. immediate pecuniary and substantial interest that would be ward of 61st street in virginia beach. the proposed pipeline aggrieved" by the vmrc's decision. 410(b), we granted the appeals filed by the vmrc and the city to how and why the various appellants have standing as aggrieved is not sufficient that the sole interest of the judgment upon a right, however meritorious, which has not been looked to the pleadings to determine whether the petitioner has allegations to establish standing and therefore the circuit letters by some residents informing them of the vmrc's decision 9 persons "aggrieved," sets the standing requirement.4 the litigation, and not a remote or indirect charles clark, et al. include allegations to show that the petitioner had the ultimately approved was longer than requested in the different from that suffered by the public applied in this manner. agency regulations; but challenges to agency decisions require immediate, pecuniary and substantial interest in insulated from consideration of the motion to dismiss simply property adjacent to or nearby the pipeline project, they have statutes relevant to the appeal. see code 2.2-4000. code appellate review of the matter). examples of such dispositive motions include demurrers or in their petition the residents alleged that "the vmrc made 5 the appeal because they "fail[ed] to allege how they are the basic law applicable to the agency. accordingly, the project consisted of a 48-inch concrete outtake pipe that would "[a]djacent or nearby properties" and "[w]ater quality." a commonwealth, 261 va. 366, 375-76, 541 s.e.2d 920, 924-25 jurisprudence. ocean front (collectively "the residents") appeared in that the petition only alleged that the vmrc decision was 194, 597 s.e.2d 202, 206 (2004)(failure to assign cross-error to elizabeth b. lacy harm" which did not establish standing. in response to the project was not needed, posed environmental and water quality allows recovery based on facts not pled which is in direct in this case, the vmrc filed a motion to dismiss asserting 1 remanded the case for an evidentiary hearing on the standing . . . unlawfulness" has standing to appeal an agency decision. residents filed an assignment of cross-error in both appeals, in staff recommendations, testimony presented on behalf of the having determined that the decision of the court of appeals residents that the pipeline project was not necessary and the establish a standing requirement and it does not contradict or finally, the residents, in their brief in this court, argue the requisite standing because code 28.2-1205(a)(4) and (5) appeals effectively eliminated consideration of dispositive because the petition for appeal satisfied the four elements set held that rule 2a:4 which governs the petitions for appeal from 28.2-1205(f) provides that only a "person aggrieved" by a present: kinser, c.j., lemons, goodwyn, and millette, jj., and assignment of error and the residents did not assign cross- code 28.2-1205(f), only persons aggrieved by a decision of the const. corp., 221 va. 1139, 1141, 277 s.e.2d 228, 229 (1981). 328, 336-37, 685 s.e.2d 863, 867 (2009). the court of appeals record no. 100043 reversed and final judgment. dismissing the residents' petition for appeal for failure to charles clark, et al. april 21, 2011 residents; however, only 20 of those residents are participating city, project supporters, and project protesters, and the to build a pumping station in the median of 61st street. another. thus our cases, including cases considering appeals filing an appeal from a decision by the vmrc. need for it exaggerated, that the residents had environmental appealed from, specify the errors assigned, state the jurisdiction of the vmrc and not part of the city's application. to be unlawful and conclude with a specific statement the residents did not allege a "proper jurisdictional basis" for sufficient to establish standing, that is whether the residents inconsistent with established relevant principles of pursuant to code 28.2-1205 to consider the city's application. "aggrieved" in a statute contemplates a substantial reference to the rule, the court of appeals erred. the judgment of the court of appeals and reinstate the judgment rule 2a:4 was enacted to address the manner of conducting a from agency decisions decided on demurrer, have consistently opposition to the pipeline project arguing that the pipeline relevant here, that their petition for appeal of the vmrc rule misconstrues the role of the rules in such appeals and is (citation omitted); ted lansing supply co. v. royal aluminum & that a burden was imposed on the residents different from that the expense was too high, and that the length of the pipeline of the relief requested. before us. the residents assigned error to the circuit court's shall designate the regulation or case decision determination that the residents' pleadings were insufficient to a decision of the virginia marine resources commission (vmrc) cases have established the parameters for demonstrating that one allege facts sufficient to demonstrate that the residents were can base its decree upon facts not alleged, nor render its agency decisions did not require the petition to contain circuit court to dismiss the petition for appeal arguing that unnecessary because the record demonstrated that the residents "aggrieved." the residents' petition for appeal was not appeals erred in reversing the judgment of the circuit court of "would do" if granted leave to amend the pleadings, counsel for sufficient to withstand the motion to dismiss challenging the decisions adverse and/or objectionable to appellants, giving imposed on the public generally. the record of the vmrc hearing code 2.2-4026. furthermore, code 2.2-4000 states that the objectionable to appellants, giving rise to this appeal." the provisions of code 28.2-1205(f) control the requirements for assigning error to the court of appeals' judgment. the in part, that "the vmrc made decisions adverse and/or concerns regarding the outflow of the water into the ocean, that no other allegations or demonstration of direct injury, of an 2 would suggest that a person can be awarded relief against a 261 va. at 375-76, 541 s.e.2d at 924-25; keepe v. shell oil co., contradiction to the principles set out above. right or to redress some anticipated public injury the city of virginia beach dismissing a petition for appeal from water mark.1 of the vmrc must be a person aggrieved by the decision. our the petitioner to be "aggrieved by and claiming unlawfulness." motions based on issues other than compliance with the pleading background v. record no. 100043 3 (1933). the petitioner "must show that he has an because no evidence was taken with regard to the motion to in conjunction with the pipeline project, the city planned residents here failed to allege how they may be aggrieved. the the residents appealed the vmrc's decision to the circuit not before us. horner v. dep't of mental health, 268 va. 187, water. the pipe would be buried 10 feet below the mean low- "aggrieved" as set out above. they are either disagreements the court of appeals' opinion states that rule 2a:4 sets 231 va. 415, 419-20, 344 s.e.2d 899, 902-03 (1986). 577, 643 s.e.2d 219, 226 (2007); mattaponi indian tribe v. the vmrc and the city each filed an appeal to this court lacy and koontz, s.jj. standing to advance the appeal. see e.g., philip morris, 273 vmrc filed a motion to dismiss the appeal challenging the alkali works, 165 va. 196, 207, 181 s.e. 521, 525 (1935) any amendment to the pleadings would be necessary if standing subsection (b) of that rule states that a petition for appeal erred in dismissing the residents' appeal for failure to allege proceeding that he seeks to attack. nicholas v. do on review of a demurrer. glisson v. loxley, 235 va. 62, 64, the court of appeals' decision was also inconsistent with failure to allow them to amend in their petition for appeal in order dismissing the residents' petition for appeal and denied supersede the clear requirement of code 28.2-1205(f) that the evidentiary hearing. the court of appeals did not suggest that 55 va. app. at 334, 685 s.e.2d at 866. in concluding that the was sufficiently pled, he could "beef up the statements relating pleaded and claimed. pleadings are as essential as proof, the the rule has never been unanimously voted to approve the pipeline project on the 8 that extended 2000 feet into the ocean. after reviewing the vmrc decision. thus, compliance with rule 2a:4 does not insulate a that if their petition is deficient, we should address whether from the court of appeals of virginia the judgment of the court of appeals directly contradicts discussion of their request to amend the petition. the court of appeals condition that the pipeline be extended from 940 feet to 2000 requirements contained in rule 2a:4.3 record no. 100034 reversed and final judgment. in their petition for appeal, the residents alleged, 11 statement was insufficient to qualify the residents as in summary, we hold that the circuit court did not err in 7 with the pipeline project itself or, as the circuit court petition from a dispositive motion based on the failure to standing and the circuit court erred in dismissing the petition. this phrase, however refers to challenges to the unlawfulness of were aggrieved parties with standing to maintain the appeal. decision contained allegations sufficient to establish legal which the litigant seeks to assert is a right which the litigant in these combined appeals, we consider whether the court of concerns, and was not consistent with other discharge pipelines of a burden or obligation upon the petitioner erred in denying the residents leave to amend their petition is requirement that the vmrc consider certain factors does not because the rule does not specifically state that a petition for "person[s] aggrieved" by the decision of the vmrc within the metropolitan life ins. co., 128 va. 238, 245, 105 s.e. 74, 76 property located on or near 61st street and the virginia beach that the petition was sufficient without allegations that the long standing case law. it is beyond debate that "[n]o court "adverse and/or objectionable to appellants" and that this inherent in these principles is the premise that the "right" the residents suggested at oral argument that some other direct that the vmrc consider a proposed project's effects on virginia beach beautification comm'n v. board of zoning appeals, 4 the residents also assigned error to the circuit court's denial allegations regarding those required items, it was sufficient. application. these claims do not come within the meaning of standing requirement may apply, referencing the provisions of were aggrieved, is a matter of law reviewed under a de novo we now turn to the assertions by the vmrc and the city that appeals for consideration here. motions to dismiss in which no evidence was taken. 1205(f).2 virginia marine resources commission code 2.2-4026. the rule cannot supersede or displace other involves matters of significant precedential value, code 17.1- vmrc are entitled to judicial review of the decision and the the court of appeals erred in reversing the circuit court's va. 249, 253, 110 s.e.2d 223, 226 (1959). . . . explained to the vmrc." the circuit court entered an residents' petition for appeal was sufficient, the court of is entitled to assert against the defendant. indeed, no one vmrc to install a stormwater outfall pipeline (the pipeline 4 these cases and principles. the court of appeals determined at the hearing, a number of persons who resided at or owned for appeal and because the petition for appeal contained 940 feet from the mean low-water mark for the discharge of storm some direct interest in the subject matter of the be installed in the subaqueous ocean bottom for a distance of 366 s.e.2d 68, 69 (1988). whether those factual pleadings are judgment of the circuit court on its application of rule 2a:4. the circuit court heard arguments on the standing issue residents' standing. this construction and application of the lawrence, 161 va. 589, 592, 171 s.e. 673, 674 defendant based on a complaint asserting a claim belonging to residents could comply with the standing requirement through an intendment of code 28.2-1205(f). accordingly, we will reverse the residents appealed to the court of appeals arguing, as error. accordingly, the issue of whether the circuit court one being unavailing without the other." potts v. mathieson appeal must contain facts supporting a petitioner's standing to demonstrate standing. with other persons similarly situated. the word grievance and means a denial of some personal or petitioner is to advance some perceived public 3 1205(f), restricting appeals from the vmrc's decisions to the residents' motion to amend the petition for appeal. the residents responded that, although he believed the petition circuit court's inquiry asking the residents' counsel what he documents and correspondence produced at the hearing, the vmrc act) which states that "[a]ny person affected by and claiming act supplements but does not supersede or repeal provisions of with standing to pursue the appeal. rather, code 28.2- 220 va. 587, 589-90, 260 s.e.2d 722, 723-24 (1979); strader v. issue. id. at 337-38, 685 s.e.2d at 867-68. prosecute the appeal, the court of appeals concluded that such the case for an evidentiary hearing and argued such hearing was allegations are not necessary and the residents' petition was 10 which they asserted that the court of appeals erred in remanding (1920). pled sufficient facts to establish the petitioner's right or property right, legal or equitable, or imposition and stating that pursuant to rule 2a:2 "you have 30 days" to the court of appeals based its decision reversing the


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