VIRGINIA MARINE RESOURCES COM'N v. Clark

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.

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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

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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.

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 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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