Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Lacy and Koontz, S.JJ.
VIRGINIA MARINE RESOURCES COMMISSION
v. Record No. 100034 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
CHARLES CLARK, ET AL. APRIL 21, 2011
CITY OF VIRGINIA BEACH
v. Record No. 100043
CHARLES CLARK, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
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. 1
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-
1
In conjunction with the pipeline project, the City planned
to build a pumping station in the median of 61st Street.
Permits with regard to the pumping station were not within the
jurisdiction of the VMRC and not part of the City’s application.
2
1205(F). 2 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.
The circuit court heard arguments on the standing issue
raised by the VMRC and the City and concluded that the
Residents’ petition alleged only “non-particularized claims of
harm” which did not establish standing. In response to the
circuit court’s inquiry asking the Residents’ counsel what he
“would do” if granted leave to amend the pleadings, counsel for
the Residents responded that, although he believed the petition
was sufficiently pled, he could “beef up the statements relating
to how and why the various appellants have standing as aggrieved
2
The group protesting the project initially consisted of 29
residents; however, only 20 of those residents are participating
in this appeal.
3
parties” and he would add “the pollution and health concerns
. . . explained to the VMRC.” The circuit court entered an
order dismissing the Residents’ petition for appeal and denied
the Residents’ motion to amend the petition for appeal.
The Residents appealed to the Court of Appeals arguing, as
relevant here, that their petition for appeal of the VMRC
decision contained allegations sufficient to establish legal
standing and the circuit court erred in dismissing the petition.
The Residents also assigned error to the circuit court’s denial
of their request to amend the petition. The Court of Appeals
held that Rule 2A:4 which governs the petitions for appeal from
agency decisions did not require the petition to contain
allegations to establish standing and therefore the circuit
court “improperly expanded the requirements of the rule” and
erred in dismissing the Residents’ appeal for failure to allege
standing. Clark v. Virginia Marine Res. Comm’n, 55 Va. App.
328, 336-37, 685 S.E.2d 863, 867 (2009). The Court of Appeals
remanded the case for an evidentiary hearing on the standing
issue. Id. at 337-38, 685 S.E.2d at 867-68.
The VMRC and the City each filed an appeal to this Court
assigning error to the Court of Appeals’ judgment. The
Residents filed an assignment of cross-error in both appeals, in
which they asserted that the Court of Appeals erred in remanding
the case for an evidentiary hearing and argued such hearing was
4
unnecessary because the record demonstrated that the Residents
were aggrieved parties with standing to maintain the appeal.
Having determined that the decision of the Court of Appeals
involves matters of significant precedential value, Code § 17.1-
410(B), we granted the appeals filed by the VMRC and the City
and the cross-error assigned by the Residents and combined the
appeals for consideration here.
DISCUSSION
The Court of Appeals based its decision reversing the
judgment of the circuit court on its application of Rule 2A:4.
Subsection (b) of that Rule states that a petition for appeal
shall designate the regulation or case decision
appealed from, specify the errors assigned, state the
reasons why the regulation or case decision is deemed
to be unlawful and conclude with a specific statement
of the relief requested.
Because the Rule does not specifically state that a petition for
appeal must contain facts supporting a petitioner’s standing to
prosecute the appeal, the Court of Appeals concluded that such
allegations are not necessary and the Residents’ petition was
sufficient to withstand the motion to dismiss challenging the
Residents’ standing. This construction and application of the
Rule misconstrues the role of the rules in such appeals and is
inconsistent with established relevant principles of
jurisprudence.
5
The Court of Appeals’ opinion states that Rule 2A:4 sets
out the “only requirements” for a legally sufficient petition
for appeal and because the petition for appeal contained
allegations regarding those required items, it was sufficient.
55 Va. App. at 334, 685 S.E.2d at 866. In concluding that the
Residents’ petition for appeal was sufficient, the Court of
Appeals effectively eliminated consideration of dispositive
motions based on issues other than compliance with the pleading
requirements contained in Rule 2A:4. 3 The Rule has never been
applied in this manner.
Rule 2A:4 was enacted to address the manner of conducting a
direct review of agency regulations and case decisions. See
Code § 2.2-4026. The Rule cannot supersede or displace other
statutes relevant to the appeal. See Code § 2.2-4000. Code
§ 28.2-1205(F) provides that only a “person aggrieved” by a
decision of the VMRC is entitled to judicial review of that
decision. Thus, compliance with Rule 2A:4 does not insulate a
petition from a dispositive motion based on the failure to
include allegations to show that the petitioner had the
requisite standing to pursue the appeal. See e.g., Philip
Morris USA, Inc. v. Chesapeake Bay Found., Inc., 273 Va. 564,
577, 643 S.E.2d 219, 226 (2007); Mattaponi Indian Tribe v.
3
Examples of such dispositive motions include demurrers or
motions to dismiss in which no evidence was taken.
6
Commonwealth, 261 Va. 366, 375-76, 541 S.E.2d 920, 924-25
(2001).
In this case, the VMRC filed a motion to dismiss asserting
that the petition only alleged that the VMRC decision was
“adverse and/or objectionable to appellants” and that this
statement was insufficient to qualify the Residents as
“aggrieved.” The Residents’ petition for appeal was not
insulated from consideration of the motion to dismiss simply
because the petition for appeal satisfied the four elements set
out in Rule 2A:4(b) and, in resolving the matter solely by
reference to the Rule, the Court of Appeals erred.
The Court of Appeals’ decision was also inconsistent with
long standing case law. It is beyond debate that “[n]o court
can base its decree upon facts not alleged, nor render its
judgment upon a right, however meritorious, which has not been
pleaded and claimed. Pleadings are as essential as proof, the
one being unavailing without the other.” Potts v. Mathieson
Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 (1935)
(citation omitted); Ted Lansing Supply Co. v. Royal Aluminum &
Const. Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 229 (1981).
Inherent in these principles is the premise that the “right”
which the litigant seeks to assert is a right which the litigant
is entitled to assert against the defendant. Indeed, no one
would suggest that a person can be awarded relief against a
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defendant based on a complaint asserting a claim belonging to
another. Thus our cases, including cases considering appeals
from agency decisions decided on demurrer, have consistently
looked to the pleadings to determine whether the petitioner has
pled sufficient facts to establish the petitioner’s right or
standing to advance the appeal. See e.g., Philip Morris, 273
Va. at 577, 643 S.E.2d at 226; Barber v. VistaRMS, Inc., 272 Va.
319, 327-28, 634 S.E.2d 706, 711 (2006); Mattaponi Indian Tribe,
261 Va. at 375-76, 541 S.E.2d at 924-25; Keepe v. Shell Oil Co.,
220 Va. 587, 589-90, 260 S.E.2d 722, 723-24 (1979); Strader v.
Metropolitan Life Ins. Co., 128 Va. 238, 245, 105 S.E. 74, 76
(1920).
The judgment of the Court of Appeals directly contradicts
these cases and principles. The Court of Appeals determined
that the petition was sufficient without allegations that the
Residents were “aggrieved” by the VMRC decision and that the
Residents could comply with the standing requirement through an
evidentiary hearing. The Court of Appeals did not suggest that
any amendment to the pleadings would be necessary if standing
was established. The Court of Appeals’ judgment, therefore,
allows recovery based on facts not pled which is in direct
contradiction to the principles set out above.
We now turn to the assertions by the VMRC and the City that
the Court of Appeals erred in reversing the circuit court’s
8
determination that the Residents’ pleadings were insufficient to
show that they were persons aggrieved by the VMRC decision.
Because no evidence was taken with regard to the motion to
dismiss we treat the factual allegations in the petition as we
do on review of a demurrer. Glisson v. Loxley, 235 Va. 62, 64,
366 S.E.2d 68, 69 (1988). Whether those factual pleadings are
sufficient to establish standing, that is whether the Residents
were aggrieved, is a matter of law reviewed under a de novo
standard. Philip Morris, 273 Va. at 572, 643 S.E.2d at 223.
As discussed above, a person seeking to appeal a decision
of the VMRC must be a person aggrieved by the decision. Our
cases have established the parameters for demonstrating that one
is “aggrieved” when used in this context.
[I]t must affirmatively appear that such person had
some direct interest in the subject matter of the
proceeding that he seeks to attack. Nicholas v.
Lawrence, 161 Va. 589, 592, 171 S.E. 673, 674
(1933). The petitioner “must show that he has an
immediate, pecuniary and substantial interest in
the litigation, and not a remote or indirect
interest.” Id. at 593, 171 S.E. at 674. Thus, it
is not sufficient that the sole interest of the
petitioner is to advance some perceived public
right or to redress some anticipated public injury
when the only wrong he has suffered is in common
with other persons similarly situated. 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. Insurance Ass’n v. Commonwealth, 201
Va. 249, 253, 110 S.E.2d 223, 226 (1959).
9
Virginia Beach Beautification Comm’n v. Board of Zoning Appeals,
231 Va. 415, 419-20, 344 S.E.2d 899, 902-03 (1986).
In their petition the Residents alleged that “the VMRC made
decisions adverse and/or objectionable to appellants, giving
rise to this appeal.” The petition and its attachments contain
no other allegations or demonstration of direct injury, of an
immediate pecuniary and substantial interest that would be
affected, or that a personal or property right was denied or
that a burden was imposed on the Residents different from that
imposed on the public generally. The record of the VMRC hearing
which the circuit court considered included claims of various
Residents that the pipeline project was not necessary and the
need for it exaggerated, that the Residents had environmental
concerns regarding the outflow of the water into the ocean, that
the expense was too high, and that the length of the pipeline
ultimately approved was longer than requested in the
application. These claims do not come within the meaning of
“aggrieved” as set out above. They are either disagreements
with the pipeline project itself or, as the circuit court
observed, concerns shared generally with the public.
The Residents also posit that, as inhabitants or owners of
property adjacent to or nearby the pipeline project, they have
the requisite standing because Code § 28.2-1205(A)(4) and (5)
direct that the VMRC consider a proposed project’s effects on
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“[a]djacent or nearby properties” and “[w]ater quality.” A
requirement that the VMRC consider certain factors does not
establish a standing requirement and it does not contradict or
supersede the clear requirement of Code § 28.2-1205(F) that the
petitioner be a “person aggrieved.” Similarly, the receipt of
letters by some Residents informing them of the VMRC’s decision
and stating that pursuant to Rule 2A:2 “you have 30 days” to
initiate an appeal does not, as the Residents claim, vest them
with standing to pursue the appeal. Rather, Code § 28.2-
1205(F), restricting appeals from the VMRC’s decisions to
persons “aggrieved,” sets the standing requirement. 4
Finally, the Residents, in their brief in this Court, argue
that if their petition is deficient, we should address whether
they should have been granted leave to amend their pleading. We
decline this invitation because that issue is not properly
before us. The Residents assigned error to the circuit court’s
failure to allow them to amend in their petition for appeal in
4
The Residents suggested at oral argument that some other
standing requirement may apply, referencing the provisions of
Code § 2.2-4026 of the Virginia Administrative Process Act (the
Act) which states that “[a]ny person affected by and claiming
. . . unlawfulness” has standing to appeal an agency decision.
This phrase, however refers to challenges to the unlawfulness of
agency regulations; but challenges to agency decisions require
the petitioner to be “aggrieved by and claiming unlawfulness.”
Code § 2.2-4026. Furthermore, Code § 2.2-4000 states that the
Act supplements but does not supersede or repeal provisions of
the basic law applicable to the agency. Accordingly, the
provisions of Code § 28.2-1205(F) control the requirements for
filing an appeal from a decision by the VMRC.
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the Court of Appeals. The Court of Appeals did not address this
assignment of error and the Residents did not assign cross-
error. Accordingly, the issue of whether the circuit court
erred in denying the Residents leave to amend their petition is
not before us. Horner v. Dep’t of Mental Health, 268 Va. 187,
194, 597 S.E.2d 202, 206 (2004)(failure to assign cross-error to
an issue the Court of Appeals did not address waived further
appellate review of the matter).
In summary, we hold that the circuit court did not err in
dismissing the Residents’ petition for appeal for failure to
allege facts sufficient to demonstrate that the Residents were
“person[s] aggrieved” by the decision of the VMRC within the
intendment of Code § 28.2-1205(F). Accordingly, we will reverse
the judgment of the Court of Appeals and reinstate the judgment
of the circuit court.
Record No. 100034 – Reversed and final judgment.
Record No. 100043 – Reversed and final judgment.
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