COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton,∗ Judges Frank and Clements
Argued at Chesapeake, Virginia
STEPHEN A. PALMER
OPINION BY
v. Record No. 2546-05-1 JUDGE ROBERT P. FRANK
APRIL 4, 2006
COMMONWEALTH OF VIRGINIA
MARINE RESOURCES COMMISSION
FROM THE CIRCUIT COURT OF MATHEWS COUNTY
Randolph T. West, Judge Designate
Stephen A. Palmer, pro se.
Carl Josephson, Senior Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Stephen A. Palmer, appellant, appeals a trial court decision holding that the Virginia
Marine Resources Commission (VMRC) had sufficient evidence to deny appellant’s application
for a permit to construct a storage shed on his pier, located along West Landing Creek. On
appeal, appellant contends that the VMRC erred in (1) finding that construction of the storage
shed violated the public trust doctrine, (2) finding that the storage shed was not water-dependent
and was not necessary for appellant’s use of his pier, (3) finding that the storage shed had an
environmental impact on the subaqueous land of the Commonwealth, and (4) finding that the
storage shed interfered with the right of others to use and enjoy the subaqueous land of the
Commonwealth. Additionally, appellant argues that the VMRC failed to review his application
within the time period prescribed by Code § 28.2-1205(D), thus requiring the automatic approval
of his application. For the following reasons, we affirm the decision of the trial court.
∗
On April 1, 2006, Judge Felton succeeded Judge Fitzpatrick as chief judge.
BACKGROUND
The facts in this case are not in dispute.
On January 24, 2001, appellant submitted an application to the VMRC to construct a
134-foot long pier and an open-sided boathouse extending from his property into West Landing
Creek.1 The VMRC subsequently issued a “no-permit necessary” letter to appellant, noting that
his application fell within the permit exemption provided by Code § 28.2-1203(A)(5).2 Shortly
after constructing this pier, appellant built a storage shed, measuring 11-feet long, 12-feet wide,
and 12-feet high, on the end of his pier. Appellant used the shed to store an outboard boat motor,
life jackets, fishing equipment, lawn chairs, toys for his grandchildren, and a small table.
Appellant did not request a permit from the VMRC to construct this shed.
1
Appellant did not build a boathouse as noted in his original application, but constructed
only the pier.
2
At the time of appellant’s application, Code § 28.2-1203(A)(5) provided:
It shall be unlawful for any person to build, dump, trespass or
encroach upon or over, or take or use any materials from the beds
of the bays, ocean, rivers, streams, or creeks which are the property
of the Commonwealth, unless such act is performed pursuant to a
permit issued by the Commission or is necessary for the following:
* * * * * * *
Except as provided in subsection D of § 28.2-1205, placement
of private piers for noncommercial purposes by owners of the
riparian lands in the waters opposite those lands, provided that the
piers do not extend beyond the navigation line or private pier lines
established by the Commission or the United States Army Corps of
Engineers. Subject to any applicable local ordinances, such piers
may include an attached boat lift and an open-sided roof designed
to shelter a single boat slip or boat lift. In cases in which such
roofs will exceed 700 square feet in coverage, and in cases in
which an adjoining property owner objects to a proposed roof
structure, permits shall be required as provided in § 28.2-1204[.]
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On February 19, 2002, VMRC staff members were notified that “a non-permitted
structure” had been erected on appellant’s pier.3 After conducting a site visit to inspect the shed,
the VMRC filed a sworn complaint and issued a “notice to comply” letter, sent to appellant on
March 13, 2002. The “notice to comply” letter required that appellant either remove the shed or
apply for an after-the-fact permit for the shed within 60 days. Appellant submitted an
application for an after-the-fact permit on April 15, 2002.
Two people submitted written protests to the VMRC noting their objections to the
construction of appellant’s storage shed. One, a neighboring property owner, complained that
the shed obstructed her views of the river and the bay, while the other, a local citizen responding
to the public notice of the hearing, opposed the permit based on her personal impression that
appellant deliberately ignored the permit requirement.
On October 22, 2002, the VMRC conducted a hearing to consider appellant’s application
for an after-the-fact permit for his storage shed. A VMRC staff member, Kevin Curling,
presented evidence, including pictures of appellant’s pier and storage shed, as well as the written
protests submitted by the neighboring property owner and the local citizen. Curling
recommended that the VMRC deny the permit application, based on his assessment that the
storage shed was not a water-dependent structure and was not necessary to appellant’s use of the
pier. Curling noted that, while the shed was used to store some water-dependent articles, it could
serve that same purpose if constructed on land near the pier entrance. Curling observed that
moving the shed to land also reduced the threat of building materials entering the waterway
during a storm.
At this hearing, appellant testified that he constructed the shed himself several months
after the pier was built. He said that he did not seek a permit for the structure because he
3
The record does not disclose how VMRC staff received this notification.
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believed that building a shed was a “natural consequence” of being able to use his pier.
Appellant stated that it would “not be convenient” for him to carry the items he stored in his shed
down the length of his pier. Appellant also noted that a neighboring property owner approached
him while he was building the shed and complained that it obstructed the view from her
property. At the hearing, appellant agreed that his shed did obstruct that property owner’s view
of the water.
The VMRC voted 3-2 to deny appellant’s application for an after-the-fact permit and
ordered appellant to remove the shed within 30 days. One commission member, voting against
the issuance of a permit, noted that the VMRC had recently denied a similar application and that
future requests of this nature should also be denied. Another commissioner, who also voted
against the issuance of a permit, observed that it was the “policy” of the VMRC on past
applications to deny buildings similar to appellant’s shed. Appellant appealed the VMRC
decision to the Circuit Court of Mathews County pursuant to the Virginia Administrative Process
Act (VAPA), Code § 2.2-4000, et seq., arguing that the VMRC did not have sufficient evidence
to deny his permit application. The trial court affirmed the VMRC denial.4
This appeal follows.
ANALYSIS
Appellant concedes that he was required to obtain a permit from the VMRC in order to
construct a storage shed on his pier. See Evelyn v. Commonwealth Marine Res. Comm’n, 46
Va. App. 618, 621, 621 S.E.2d 130, 132 (2005) (holding that “the governing statutes limit the
4
The circuit court’s review of the agency’s action pursuant to the VAPA is “‘equivalent
to an appellate court’s role in an appeal from a trial court.’” “‘In this sense, the General
Assembly has provided that a circuit court acts as an appellate tribunal.’” Mattaponi Indian
Tribe v. Dep’t of Envtl. Quality ex rel. State Water Control Bd., 43 Va. App. 690, 707, 601
S.E.2d 667, 676 (2004) (citations omitted), aff’d sub nom., Alliance to Save the Mattaponi v.
Commonwealth Dep’t of Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423, 621 S.E.2d
78 (2005), petition for cert. filed, (Mar. 6, 2006) (No. 05-1141).
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riparian owner’s rights such that he may build, without a permit, only those structures
‘necessary’ or essential to the placement of a private pier for the limited purpose of accessing
navigable waters or vessels moored in those waters” and that “[t]he riparian landowner may not
build, without a permit, incidental appendages designed merely to enhance the primary purpose
of the pier”).
Essentially, appellant argues that the evidence did not support the VMRC decision to
deny his application for an after-the-fact permit to construct a storage shed on his pier.
Additionally, appellant argues that the VMRC violated Code § 28.2-1205(D), requiring the
VMRC to decide any permit application within 90 days of its receipt.
Sufficiency of the Evidence
Determinations of whether to issue a permit for proposed construction plans over
state-owned subaqueous lands are within the specialized competency of the VMRC.
The General Assembly has given the VMRC jurisdiction over “all
commercial fishing and all marine fish, marine shellfish, marine
organisms, and habitat” “throughout” the “state-owned
bottomlands in the Commonwealth.” Code § 28.2-101. In order to
safeguard the Commonwealth’s resources, the General Assembly
has enacted statutes expressly authorizing the VMRC to oversee
the attempts of individual landowners to exercise their riparian
rights.
Evelyn, 46 Va. App. at 627, 621 S.E.2d at 135. “Subaqueous land” is defined in Virginia as
“ungranted beds of the bays, rivers, creeks and shores of the sea which are owned by the
Commonwealth,” including the “beds of tidal and nontidal water bodies,” that extends
“channelward of MLW [mean low water],” with mean low water being “the average elevation of
low water observed over a specific 19 year period.” William L. Roberts, Coastal Resources and
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the Permit Process: Definitions and Jurisdictions, 6-7, http://ccrm.vims.edu/wetlands/techreps/
CoastalResourcesandPermitProcess.pdf.5
“We accord great deference to an administrative agency’s interpretation of the
regulations it is responsible for enforcing.” Holtzman Oil Corp. v. Commonwealth, 32 Va. App.
532, 544, 529 S.E.2d 333, 339 (2000). “Where . . . the issue concerns an agency decision based
on the proper application of its expert discretion, the reviewing court will not substitute its own
independent judgment for that of the agency but rather will reverse the agency decision only if
that decision was arbitrary and capricious.” Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231,
246, 369 S.E.2d 1, 9 (1988). A decision is arbitrary and capricious only if there is no credible
evidence in the record to support the finding and the agency “‘arbitrarily disregard[ed]
uncontradicted evidence.’” City of Bristol Police Dep’t v. Broome, 7 Va. App. 161, 167, 372
S.E.2d 204, 207 (1988) (quoting Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276,
279, 348 S.E.2d 876, 877 (1986)).
“The sole determination as to factual issues is whether substantial evidence exists in the
agency record to support the agency’s decision. The reviewing court may reject the agency’s
findings of fact only if, considering the record as a whole, a reasonable mind would necessarily
come to a different conclusion.” Johnston-Willis, 6 Va. App. at 242, 369 S.E.2d at 7. In
5
Appellant contends that the construction of his storage shed could not affect the
subaqueous lands of the Commonwealth, as it did not actually touch the bottom of West Landing
Creek. Thus, he argues that the only environmental impact that is relevant is that caused by his
existing, permissible pier.
Appellant ignores a long-standing principle of property law: “[A] landowner owns at
least as much of the space above the ground as he can occupy or use in connection with the
land.” United States v. Causby, 328 U.S. 256, 264 (1946). Thus, the Commonwealth has a right
to control all structures built over that subaqueous land, even where those structures do not
actually touch the land itself.
Further, the General Assembly has clearly indicated its intent to regulate structures built
on piers over the subaqueous lands of the Commonwealth. See Code § 28.2-1203(A)(5)
(regulating the size and construction of enclosures built over boat slips and boat lifts).
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making such a determination, a reviewing court must take “due account of the presumption of
official regularity, the experience and specialized competence of the agency, and the purposes of
the basic law under which the agency has acted.” Id.
When reviewing applications for permits to build structures on piers over state-owned,
subaqueous lands, the VMRC considers several factors, including those set out in Code
§ 28.2-1205(A):
When determining whether to grant or deny any permit for the use
of state-owned bottomlands, the Commission shall be guided in its
deliberations by the provisions of Article XI, Section I of the
Constitution of Virginia. In addition to other factors, the
Commission shall also consider the public and private benefits of
the proposed project and shall exercise its authority under this
section consistent with the public trust doctrine as defined by the
common law of the Commonwealth adopted pursuant to § 1-10 in
order to protect and safeguard the public right to the use and
enjoyment of the subaqueous lands of the Commonwealth held in
trust by it for the benefit of the people as conferred by the public
trust doctrine and the Constitution of Virginia. The Commission
shall also consider the project’s effect on the following:
1. Other reasonable and permissible uses of state waters and
state-owned bottomlands;
2. Marine and fisheries resources of the Commonwealth;
3. Tidal wetlands, except when this has or will be determined
under the provisions of Chapter 13 of this title;
4. Adjacent or nearby properties;
5. Water quality; and
6. Submerged aquatic vegetation (SAV).
In considering these factors, the VMRC is guided by both Article XI, Section 1 of the
Constitution of Virginia and the common law public trust doctrine. Article XI, Section 1 of the
Constitution of Virginia reads:
To the end that the people have clean air, pure water, and the use
and enjoyment for recreation of adequate public lands, waters, and
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other natural resources, it shall be the policy of the Commonwealth
to conserve, develop, and utilize its natural resources, its public
lands, and its historical sites and buildings. Further, it shall be the
Commonwealth’s policy to protect its atmosphere, lands, and
waters from pollution, impairment, or destruction, for the benefit,
enjoyment, and general welfare of the people of the
Commonwealth.
The public trust doctrine in Virginia provides:
[T]he state holds the land lying beneath public waters as trustee for
the benefit of all citizens. As trustee, the state is responsible for
proper management of the resource to ensure the preservation and
protection of all appropriate current and potential future uses,
including potentially conflicting uses, by the public.
Virginia Marine Resources Commission, Subaqueous Guidelines, 21 Va. Reg. Regs. 1708 (Feb.
21, 2005). See also Sharon M. Kelly, Note, The Public Trust and the Constitution: Routes to
Judicial Overview of Resource Management Decisions in Virginia¸ 75 Va. L. Rev. 895, 896
(1989) (noting that the public trust doctrine provides that “tidelands and certain other lands and
waters are held by the state in trust for its citizens, to be used only for the benefit of the public”).
In reviewing a permit application, the VMRC, under the VMRC Subaqueous Guidelines,6
also considers the water-dependency of the proposed structure and the necessity of the structure
to the exercise of the applicant’s riparian rights. The VMRC defines as water-dependent “those
structures and activities that must be located in, on, or over State-owned submerged lands.” 21
Va. Reg. Regs. 1708 (Feb. 21, 2005).
When applying this definition, both of the following questions
must be answered affirmatively:
1. Is it necessary that the structure be located over water? and
2. Is it necessary that the activity associated with the structure be
over the water?
6
The General Assembly allows the VMRC to issue regulations and guidelines for use in
effecting their duties. See Code § 28.2-103 (“The Commission shall exercise all of the powers
herein conferred and may promulgate regulations and guidelines necessary to carry out the
provisions of this title.”).
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Id.7 “[T]he ‘ordinary and accepted meaning’ of ‘necessary’ is ‘whatever is essential for some
purpose . . . of, relating to, or having the character of something that is logically required or
logically inevitable or that cannot be denied without involving contradiction.’” Evelyn, 46
Va. App. at 632, 621 S.E.2d at 137 (quoting Scottsdale Ins. Co. v. Glick, 240 Va. 283, 287, 397
S.E.2d 105, 108 (1990)).
Thus, the VMRC considers several factors when considering an application for a permit
to build a structure over the subaqueous lands of the Commonwealth. The presence or absence
of any given factor is not dispositive of whether a permit should be granted; further, not every
factor is applicable in every case.8 Additionally, the VMRC may properly consider the
cumulative effect of issuing multiple permits for structures over the waters of the
Commonwealth. While the construction of one storage shed on one pier may not seem to pose a
threat to the Commonwealth’s subaqueous lands, the construction of hundreds of storage sheds
on hundreds of piers poses the risk of substantial harm to the very interests that the VMRC is
charged with protecting. See Evelyn, 46 Va. App. at 633, 621 S.E.2d at 138 (“Allowing
unfettered noncommercial building atop piers that do not intrude into navigable waters is
contrary to the plain meaning of [Code § 28.2-1203(A)(5)] and the common law and would
produce an absurd result.”).
Here, there is substantial, credible evidence in the record to support the finding of the
VMRC denying appellant’s permit application. A VMRC staff member, who conducted the site
inspection, pointed to the fact that the storage shed was not water-dependent, as it was not
7
In appellant’s case, the VMRC answered both of those questions in the negative.
8
At oral argument, appellant contended that, since there was no evidence presented to the
VMRC of every factor listed in Code § 28.2-1205(A), the VMRC decision in his case was
improper. However, appellant failed to include this argument in his questions presented before
this Court. As such, we will not address this claim on appeal. See Rule 5A:20(c)-(e).
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necessary that the shed itself be located over water, nor was it necessary for the storage of those
items in the shed be over the water. The shed could be located on land, where it posed less of a
threat to the waterways if there was storm damage. Appellant himself admitted that he could
carry the items he stored in the shed to the water from his land, but that he found this
“inconvenient.”9 Convenience, however, does not fall under the ambit of what can be considered
“necessary.”
In addition, two written protests opposed appellant’s permit application, one from a
neighboring property owner concerned about the obstruction to her view of the surrounding
water. One commissioner, who voted against the issuance of a permit, pointed to the VMRC’s
recent denial of a similar application. Another commissioner, who also voted against the permit,
noted that it was the “policy” of the VMRC to deny buildings similar to appellant’s shed,
evidencing a concern that the VMRC has for the cumulative effect of issuing permits to build
storage sheds on piers over the subaqueous lands of the Commonwealth.
Given the evidence before the VMRC, we cannot say that the decision to deny
appellant’s permit application was “arbitrary and capricious,” or that it was an abuse of
discretion. There was substantial, credible evidence in the record to support the VMRC decision.
Thus, we affirm the trial court’s ruling to uphold the VMRC decision and to order appellant to
remove the storage shed.
Violation of Time Requirement in Code § 28.2-1205(D)
Appellant argues that, because the VMRC failed to act on his permit application within
90 days of receiving it, Code § 28.2-1205(D) requires that the VMRC approve his application.
Code § 28.2-1205(D) provides:
A permit is required and shall be issued by the Commission for
placement of any private pier measuring 100 or more feet in length
9
At oral argument, appellant conceded that the shed was not a water-dependent structure.
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from the mean low-water mark, which is used for noncommercial
purposes by an owner of the riparian land in the waters opposite
the land, and that traverses commercially productive leased oyster
or clam grounds, as defined in § 28.2-630, provided that the pier
does not extend beyond the navigation line established by the
Commission or the United States Army Corps of Engineers. The
permit may reasonably prescribe the design and location of the pier
for the sole purpose of minimizing the adverse impact on such
oyster or clam grounds or the harvesting or propagation of oysters
or clams therefrom. The permit shall contain no other conditions
or requirements. Unless information or circumstances materially
alter the conditions under which the permit would be issued, the
Commission shall act within 90 days of receipt of a complete joint
permit application to approve or deny the application. If the
Commission fails to act within that time, the application shall be
deemed approved and the applicant shall be notified of the deemed
approval.
(Emphasis added). It is clear from the emphasized language that this statute applies only to
permits for piers that “traverse commercially productive leased oyster or clam grounds.” “‘[T]he
province of [statutory] construction lies wholly within the domain of ambiguity, and that which
is plain needs no interpretation.’” Coleman v. Commonwealth, 27 Va. App. 768, 773, 501
S.E.2d 461, 463 (1998) (quoting Winston v. City of Richmond, 196 Va. 403, 408, 83 S.E.2d 728,
731 (1954)).
Appellant’s pier, and the storage shed built upon it, do not fall under this statute. Indeed,
appellant’s pier and his subsequent permit application for the storage shed are governed by Code
§ 28.2-1203(A)(5), as noted by the VMRC’s “no permit necessary” letter issued in response to
appellant’s original permit application in January 2001. Thus, the time period contained in Code
§ 28.2-1205(D), which does not appear anywhere else in Title 28.2, does not apply to appellant’s
permit application.
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CONCLUSION
For the foregoing reasons, we conclude that the evidence was sufficient to support the
VMRC denial of appellant’s application for a permit to construct a storage shed on his existing
pier. Thus, we affirm the decision of the trial court.
Affirmed.
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