BACKGROUNDThe 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)|
|Lawrence Koontz, Jr.|
|LeRoy Millette, Jr.|