City of Virginia Beach v. Marine Resource Commn ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
CITY OF VIRGINIA BEACH AND
SCOTT AYERS
v. Record No. 2549-02-1
VIRGINIA MARINE RESOURCES COMMISSION,
GEORGE WILKIE AND ELTON TURPIN MEMORANDUM OPINION * BY
JUDGE WALTER S. FELTON, JR.
APRIL 22, 2003
SCOTT AYERS AND
CITY OF VIRGINIA BEACH
v. Record No. 2630-02-1
VIRGINIA MARINE RESOURCES COMMISSION,
GEORGE WILKIE AND ELTON TURPIN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Richard H. Matthews (Mary M. Kellam;
Pender & Coward, P.C., on briefs), for
appellants.
John K. Byrum, Jr., Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee Virginia Marine
Resources Commission.
Glenn R. Croshaw (Kimberly L. Stegall;
Wilcox & Savage, P.C., on brief), for
appellees George Wilkie and Elton Turpin.
Scott Ayers, representative of forty-four freeholders, and
the City of Virginia Beach (collectively "Ayers") appeal the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
judgment of the Circuit Court of the City of Virginia Beach
affirming the decisions of the Virginia Marine Resources
Commission ("VMRC") and the Virginia Beach Wetlands Board
("Wetlands Board") granting applications of George Wilkie and
Elton Turpin to construct a total of three duplex residences
affecting a coastal primary sand dune. The circuit court
consolidated the review of the applications of Wilkie and Turpin
prior to this appeal.
Ayers contends that the trial court erred in affirming the
decisions granting these applications because (1) the Wetlands
Board and VMRC failed to properly interpret Code §§ 28.2-1403
and 28.2-1408, which define "coastal primary sand dune" and to
establish standards for the disturbance of coastal primary sand
dunes, and (2) the evidence on the record as a whole did not
adequately support Wetlands Board's and VMRC's granting of the
permits and their decisions were arbitrary, capricious, or an
abuse of discretion. For the following reasons, we affirm the
judgment of the trial court.
I. BACKGROUND
Wilkie and Turpin own three adjacent, undeveloped
waterfront lots on the Chesapeake Bay in Virginia Beach. Each
of the three lots contains both natural sand dunes and dunes
developed as a result of beach replenishment efforts. Both
Wilkie and Turpin have owned their respective properties for
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over thirty years, and the properties are immediately seaward of
both Wilkie's and Turpin's residences.
Pursuant to Title 28.2 of the Code of Virginia, Wilkie and
Turpin applied for dune disturbance permits from the City of
Virginia Beach Wetlands Board in order to develop a total of
three duplex residences with decks, paved parking and utilities
on the properties. In its June 18, 2001 meeting, the Wetlands
Board considered reports from the City of Virginia Beach
Planning Department and the Virginia Institute of Marine Science
recommending against the approval of Wilkie's and Turpin's
applications. Both reports expressed that the proposed
construction would encroach upon and destroy portions of the
coastal primary sand dune in violation of Code §§ 28.2-1403
through 28.2-1408. The Wetlands Board also considered exhibits
presented by applicants Wilkie and Turpin, neighboring landowner
Scott Ayers, and VIMS, including photographs of the properties
and surrounding areas, detailed plans of the proposed
construction on the property, and letters from interested
parties.
The properties in questions involved two sets of dunes, a
natural sand dune ("landward dune") and a second dune ("seaward
dune"), the latter being the result of beach replenishment
efforts over the prior fifteen years. Ayers argued that the
landward dune was the primary sand dune for the purposes of
Title 28.2 and that, because the proposed construction would
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directly impact the primary sand dune, the construction permits
were subject to the requirements of Code § 28.2-1408. Ayers
argues that there is no credible evidence in the record to
support a finding that either (1) no significant adverse
ecological impact would result from the proposed construction or
(2) that granting the permits was necessary and consistent with
the public interest. Wilkie and Turpin argued that the seaward
dune was actually the coastal primary sand dune and, thus,
because the proposed construction did not directly impact the
coastal primary sand dune, approval of their applications did
not require findings under Code § 28.2-1408. After imposing
seven conditions, 1 the Wetlands Board found the permits met the
requirements of Code § 28.2-1408, and approved both applications
by 4-3 votes.
Ayers appealed the decisions of the Wetlands Board to the
VMRC pursuant to the Administrative Process Act, Code
§§ 2.2-4000 through 2.2-4033, and Part 2A of the Rules of the
Supreme Court of Virginia. The VMRC reviewed the decisions on
August 28, 2001. At the hearing, the Habitat Management
Division of VMRC presented a report advising that the evidence
1
The Wetlands Board required (1) cantilevered decks, (2)
replanting for any part of the dune that is disturbed and
bonding for two growing seasons, (3) the minimum parking
required by the Zoning Ordinance, (4) that materials used for
parking or driveways be approved by the Coastal Zone
Administrator, (5) that no sand leave the site, (6) a new site
plan submitted prior to the issuance of any permits, and (7) the
only access-way will be an exterior stairway.
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in the record, considered as a whole, did not support the
issuance of the permits by the Wetlands Board. Notwithstanding
this recommendation, VMRC affirmed the decisions of the Wetlands
Board by a 7-0 vote.
On appeal to the circuit court, Ayers contended that VMRC
lacked substantial evidence upon which to affirm the issuance of
the permits and that in issuing the permits, the Wetlands Board
exceeded its statutory authority, failed to follow lawful
procedure, committed errors of law, lacked supportive evidence,
and abused its discretion. Finding that the Wetlands Board and
VMRC had carefully considered the record before them, and noting
that the Wetlands Board had attached conditions to Wilkie's and
Turpin's original proposed construction permits, the court
upheld the lower decisions in their entirety. This appeal
followed.
II. STATUTORY INTERPRETATION
Ayers first contends that the Wetlands Board and VMRC
failed to properly interpret Code §§ 28.2-1403 and 28.2-1408,
which define "coastal primary sand dune" and establish standards
for determining when construction may disturb coastal primary
sand dunes.
A. STANDARD OF REVIEW
"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
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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 Wetlands Board and VMRC "'arbitrarily
disregard[ed] uncontradicted evidence.'" City of Bristol Police
Department 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)).
Local wetlands boards are the primary authority for
regulating the use and development of coastal primary sand dunes
in Virginia. See Code § 28.2-1403. Under the Coastal Primary
Sand Dune Ordinance, the Wetlands Board has the authority to
review permit applications for the use or alteration of sand
dunes. Id. Determinations of what constitutes the "coastal
primary sand dune" and whether proposed construction plans meet
the requirements of Code § 28.2-1408 are within the specialized
competency of the Wetlands Board and VMRC. On review, those
decisions are entitled to deference and should only be reversed
if arbitrary, capricious, or an abuse of discretion. "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).
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B. ANALYSIS
Code § 28.2-1403 defines a "coastal primary sand dune" as
a mound of unconsolidated sandy soil which
is contiguous to mean high water, whose
landward and lateral limits are marked by a
change in grade from ten percent or greater
to less than ten percent . . . [but] shall
not include any mound of sand, [or] sandy
soil . . . deposited by any person for the
purpose of temporary storage, beach
replenishment or beach nourishment . . . .
Under Code § 28.2-1408,
[n]o permanent alteration of or construction
upon any coastal primary sand dune shall
take place which would (i) impair the
natural functions of the dune, (ii)
physically alter the contour of the dune, or
(iii) destroy vegetation growing thereon
unless the wetlands board or the Commission,
whichever is applicable, determines that
there will be no significant adverse
ecological impact, or that the granting of a
permit is clearly necessary and consistent
with the public interest, considering all
material factors.
Before the Wetlands Board, Ayers argued that the landward
dune was the coastal primary sand dune and, therefore, the
restrictions of Code § 28.2-1408 applied. Wilkie and Turpin,
conversely, argued that the seaward dune was the coastal primary
sand dune. The record does not reflect a finding by the
Wetlands Board or the VMRC regarding which dune is the coastal
primary dune. Regardless of which dune was the primary coastal
dune, the Wetlands Board found that the proposed construction
plans with the imposed conditions met the requirements of Code
§ 28.2-1408 with respect to the landward dune, the dune directly
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impacted by the proposed construction. Accordingly, the
Wetlands Board did not err in interpreting Code §§ 28.2-1403 and
28.2-1408.
III. SUFFICIENCY OF THE EVIDENCE
Accordingly, we turn to the dispositive issue of whether
there was credible evidence on the record to support the
Wetlands Board's finding that the requirements of Code
§ 28.2-1408 were met. Ayers contends that the trial court erred
in affirming the decisions of the Wetlands Board and VMRC
because the evidence on the record as a whole did not support
the granting of the permits and the decisions were arbitrary,
capricious, or an abuse of discretion.
A. STANDARD OF REVIEW
"Where the issue is whether there is substantial evidence
to support findings of fact, great deference is to be accorded
the agency decision." Johnston-Willis, Ltd., 6 Va. App. at 246,
369 S.E.2d at 9. Findings of fact will be upheld if supported
by credible evidence. See James v. Capitol Steel Constr. Co., 8
Va. App. 512, 515, 382 S.E.2d 487, 488 (1989); Ingersoll-Rand
Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d 814, 817 (1989);
City of Bristol Police Dept., 7 Va. App. at 167, 372 S.E.2d at
207. "In determining whether credible evidence exists, the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
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the credibility of the witnesses." Wagner Enterprises, Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
B. ANALYSIS
The record reflects credible evidence to support the
Wetlands Board's finding that the requirements of Code
§ 28.2-1408 were met. The Wetlands Board considered comments
from the Virginia Institute of Marine Science ("VIMS") and the
Planning Department of the City of Virginia Beach ("Planning
Department") advising against approval of Wilkie's and Turpin's
proposed construction plans. VIMS specifically noted that the
proposed plans would "tend to destabilize their immediate
environs by shading vegetation and altering wind patterns that
cause wind scour of the un-vegetated areas around the duplex.
The proposed paving for access and parking will isolate these
areas from normal dune system processes." The Planning
Department indicated that
[a]s proposed, alterations to the dune
resource will influence the natural
functions of the dune, alter dune contours
and destroy vegetation growing
thereon. . . . The project may result in a
significant loss of the resource's ability
to protect life and property from coastal
storm events. Displacement of dune
vegetation and hardening of dune contours
will further diminish the resource's
protective capabilities. In order for this
reach of shoreline to provide maximum flood
and erosion protection, the dune should
remain relatively uniform and uninterrupted.
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After considering these reports, the Wetlands Board
conditionally approved Wilkie's and Turpin's applications. The
seven conditions imposed by the Wetlands Board specifically
addressed VIMS's and the Planning Department's concerns with the
proposed construction. Accordingly, the Wetlands Board did not
act arbitrarly and capriciously in finding that Wilkie's and
Turpin's proposed construction plans, with the added conditions,
met the requirements of Code § 28.2-1408.
On review, the VMRC Habitat Management Division presented
an additional report to VMRC. The report advised against
approval of the construction permits. It, however, did not
address what effects the seven conditions imposed by the
Wetlands Board would have on the environmental impact concerns
raised by the VIMS and Planning Department reports. VMRC
reasonably considered the mitigating effects of those conditions
on the contradictory reports and unanimously affirmed the
Wetlands Board's decision.
Overall, the three reports were concerned with preserving
the dune's protective capabilities and identifying the
potentially harmful impacts that could result from Wilkie's and
Turpin's proposed construction plans. The reports addressed
such harmful impacts as shading, alteration of wind patterns,
and alterations to the dune's natural contours. The Wetlands
Board's decision addressed these potentially harmful impacts by
imposing conditions on the approval of the permits. As a
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result, the Wetlands Board and VMRC acted within the scope of
their authority in issuing permits to Wilkie and Turpin.
Furthermore, their decisions are supported by credible evidence
in the record. The trial court did not err in affirming the
decisions of the Wetlands Board and VMRC.
Accordingly, we affirm the judgments below.
Affirmed.
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